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Restitution, Fines, and Fees: Advocacy for Juvenile Clients

Restitution, Fines, and Fees: Advocacy for Juvenile Clients. Richard Braucher, First District Appellate Project Corene Kendrick, Youth Law Center PJDC Defender Roundtable November 6, 2010. Why should we care? .

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Restitution, Fines, and Fees: Advocacy for Juvenile Clients

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  1. Restitution, Fines, and Fees: Advocacy for Juvenile Clients Richard Braucher, First District Appellate Project Corene Kendrick, Youth Law Center PJDC Defender Roundtable November 6, 2010

  2. Why should we care? • Restitution, fees, and fines can punish clients and families who are already in dire financial straits • We can make a difference in the trial court, and if needed, on appeal • Standing up for your client – bench officer, Probation, and DA will notice

  3. Key Points on Parental Responsibility Welf. & Inst. Code § 730.7 provides that parents or guardians are presumed to be jointly and severally liable with the minor for restitution, fines, and penalty assessments. A parent has the right to appeal from a juvenile court financial obligation order against a minor. In re Jeffrey M. (2006) 141 Cal.App.4th 1017, 1021 In re Michael S. (2007) 147 Cal.App. 4th 1443, 1448

  4. Six Considerations for all Financial Obligations Against Our Clients • Can sanctions be imposed at all? • Is it discretionary or mandatory? • When can it be imposed and how? • Are notice and a hearing required? • How are the financial obligations calculated? • How is the claim contested and preserved for appellate review?

  5. Fines & Penalty Assessments (§ 730.5) Minors can be fined up to the amount that could be imposed upon an adult for the same offense, if the court finds that the minor has the financial ability to pay. § 730.5; In re Steven F. (1994) 21 Cal.App.4th 1070 TIP: Argue that 730.5 and 730.7 require that the court make separate fact-findings as to whether the youth or the parent can pay the fine.

  6. More Info on Fines Summary of types of fines at www.capcentral.org/criminal/crim_fines.asp Fines do not apply to: • probation without wardship § 725 (a) • informal supervision (diversion) § 654.2

  7. Penalties on Fines: It gets worse! • Gov’t C. 76000: County can levy an additional $7 penalty for every $10 of a fine Ex: $100 fine  additional $120 ($100 + $20) to state and $70 to county = $290 to actually pay • PC 1464: State penalty of $10 for every $10 fine imposed (does not apply to restitution fines) • PC 1465.7(a) – additional 20% surcharge on base amount of fine

  8. What would effective juvenile counsel do? ALWAYS advise youth and families about the compounding penalties on fines. ALWAYS argue for reduced fines because of onerous penalties. APPELLATE ALERT!Imposition of these penalties are mandatory, so any failure to impose them can be corrected on appeal. People v. Talibdeen (2002) 27 Cal.4th 1151, 1157

  9. Restitution Fines (§ 730.6(b)-(g)) • Separate and additional fine for all § 602 youth • No separate hearing is required • Applies to youth on probation without wardship (§ 725(a)) and DEJ • Does not apply to youth on informal supervision (§ 654.2) • Amount is set at court’s discretion, based on seriousness of offense • Misdemeanor: < $100 • Felony: $100 - $1000 • Counties may charge a 10% fee for collecting the fine. • Must be imposed regardless of youth’s inability to pay But….

  10. Restitution Fines: It gets a little better! In setting the restitution fine, the court shall consider factors including: • Youth’s ability to pay (incl. future earning potential) • Seriousness of the offense • Circumstances of the commission of the offense • Any economic gain to the youth from the offense • Victim’s pecuniary and intangible losses NOTE: Express findings by the court on these factors are not required. § 730.6(d)(1), (e)

  11. Restitution Fines: Practice Tips • ALWAYS demand a separate hearing on restitution fines, especially when the facts of the case benefit your client. • While mandatory, counsel can argue that they be set as low as 1¢ for a misdemeanor or $100.01 for a felony, or completely waived if there are “compelling and extraordinary circumstances.” Court must state these reasons on the record only if completely waived. Community service if waived. • OBJECT to new restitution fines in § 777 probation violation hearings. In re Brian K. (2002) 103 Cal.App.4th 39, 44

  12. Restitution (§ 730.6(a) & (h)-(r)) • Mandatory • Paid to victims to compensate them for their economic losses • Court may find “compelling and extraordinary” reasons to reduce or not impose… butinability to pay is not a compelling or extraordinary reason • Reasons to waive or reduce must be on the record and the court must order community service. • Discretionary for youth on DEJ (§ 794). Ability to pay is considered. G.C. v. Sup. Ct. (2010) 183 Cal.App.4th 371, 378 • Applies to minors on informal supervision (§ 654.2) and probation without wardship (§725(a)). • Note: Youth are not eligible for 654.2 if restitution amount is greater than $1,000 • Joint & several liability with co-offenders In re S.S. (1995) 37 Cal.App.4th 543, 550

  13. Restitution: is there any due process?

  14. Restitution: Notice and Hearing The minor has a right to a hearing on the amount of restitution. The court must advise the youth of his/her right to a restitution hearing. Imposition of a victim restitution order without a reasonable opportunity to challenge the order violates Constitutional rights of due process. P. v. Resendez(1993) 12 Cal.App.4th 98, 114 & fn. 11 APPELLATE ALERT – Always demand a hearing! Failure to request a restitution hearing or contest the ordered amount forfeits the issue on appeal, if the order does not exceed the probation report’s recommendation. P. v. Foster (1993) 14 Cal.App.4th 939, 949

  15. Nature of a Restitution Hearing Does not require formalities of a trial, therefore: • Evidentiary basis for showing losses are minimal. Property owner can estimate value of objects even if there are no receipts or appraisals. • Restitution amount must be proved by a preponderance of the evidence. • Once V makes prima facie showing, burden shifts to the defendant to disprove the amount or show it is inaccurate. • No right to confront or cross-examine witnesses, including the probation officer who prepared the report. • Court may consider the probation report despite its hearsay character as long as the court independently determines the amount of restitution. • Victims have a right to express their views.

  16. Restitution for What? Welf. & Inst. C. 730(h) • The cost of repair or replacement of stolen or damaged property • Medical expenses • Wages or profits lost due to injury (including wages or profits lost by a victim’s family when caring for the victim) • Wages or profits lost due to time spent assisting the prosecution or the police (including wages or profits lost by a victim’s family) Penal Code 1202.4(f)(3) • Mental health counseling expenses • Noneconomic losses, including, but not limited to, psychological harm • Interest, at 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. • Actual and reasonable attorney’s fees and other costs of collection accrued on behalf of the victim • Relocation expenses • Installation or expansion of security mechanisms such as alarm systems • Expenses for making a home accessible when a victim is permanently disabled as a result of the delinquent conduct

  17. Is there any limit on restitution awards? • The award must be rational, cannot use “arbitrary or capricious” criteria or methods. P. v. Rubics(2006) 136 Cal.App.4th 452, 462 • Order should have a relationship to the purpose of the rehabilitation of the youth. In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017 • Restitution is intended to “make a victim whole, not to give a windfall.” P. v. Fortune (2005) 129 Cal.App.4th 790, 794-795

  18. Who is a victim? • The direct victim(s) of the offense and/or immediate surviving family members • Government agencies responsible for repairing, replacing, or restoring public or private property defaced by graffiti TIP: Given the new graffiti statute and county budget woes, be ready for assertions that public agencies are “direct victims” of the offense. They will try to argue this! Caselaw says that public agencies are not directly victimized merely because they investigate crimes, arrest criminals, or fight a fire.

  19. A Note About Restitution for Graffiti • WIC 742.16 governs restitution for graffiti offenses and unlike general restitution orders under 730.6, states that a graffiti order should consider the child and family’s ability to pay. TIP: Thus, for this particular offense, file a motion requesting a modification of the graffiti restitution amount on the grounds that neither the youth nor the family are able to pay it.

  20. What if the victim has insurance? • Payments a victim receives from her own insurance for damage caused by the minor is not credited against the restitution order. In re Tommy A. (2005) 131 Cal.App.4th 1252, 1254 • A victim may seek civil enforcement of a restitution order even if the victim has received payment from an insurer in exchange for full civil release of claims against the youth. In re Michael S. (2007) 147 Cal.App.4th 1443, 1457 • BUT NOTE: The appropriate amount of economic loss is the amount actually paid by the insurer, not the amount billed by medical providers. In re Anthony M. (2007) 156 Cal.App.4th 1010, 1018-1019 TIP: Always make sure that the victim has submitted the final settlement between the medical provider and the insurance company, and not just the invoice, which is usually a much higher amount than the settlement.

  21. Ways to Challenge or Modify a Restitution Order • ASK FOR A RESTITUTION HEARING! • Check the figures used by the victim, probation, and the court! If it seems unreasonable, research the costs yourself. • Argue there’s no nexus between the loss and minor’s conduct. (§730.6(h), Bernal, 101 Cal.App.4th 155) • Challenge it for vagueness if it doesn’t identify the losses it is for. (§730.6(h)) • Argue civil law concepts – proximate cause, causation, contributory negligence – especially in complicated cases. • Burden on youth to prove victim’s losses are less than what is claimed; provide alternate estimates of the cost of repair or replacement of property. • Check the math on the court order! Probation and judge are often sloppy in calculating restitution and fines – do the math yourself. • Get it on the record: “Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts.” P. v. High (2004) 119 Cal.App.4th 1192, 1200 • Can file a motion to modify the order on grounds of new evidence if youth/attorney learns the victim is exaggerating or mistaken about amount of loss. • APPEAL!

  22. Restitution as a Condition of Probation • A youth cannot be denied formal or informal probation solely because of inability to pay restitution. Charles S. v. Sup. Ct. (1982) 32 Cal.3d 741, 751 • WARNING! Separate from the 730.6 restitution orders, a court may impose restitution pursuant to 730(b), which allows “any and all reasonable conditions [of probation] that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” • This can be done even absent a direct connection between the behavior and the restitution sought. In re T.C. (2009) 173 Cal.App.4th 837, 843

  23. Can my client have probation revoked for not paying restitution? YES, IT IS POSSIBLE! However, probation will not be revoked for failure to pay restitution unless the court determines the youth has “willfully failed to pay or to make sufficient bona fide efforts to legally acquire the resources to pay.” Welf. & Inst. C. §730.6(m)

  24. Restitution and Deferred Entry of Judgment • Including payment of restitution as a factor to evaluate satisfactory performance under §790 most likely would not be an abuse of discretion. • Murky because DEJ statutes are inconsistent with respect to program failure determination. TIP: Unequal treatment due to wealth is a denial of equal treatment, and it is impermissible to deny a youth informal probation due to his inability to pay restitution. (Charles S. v. Sup. Ct. (1982) 32 Cal.3d 741). Argue DEJ is like informal probation and Charles S. applies.

  25. Fees (§ 903.2) • In addition to fines/penalties, restitution fines, and restitution, some counties charge fees related to a youth’s probation supervision. • These are assessed only if the person has the ability to pay. TIP: Youth are not included in the list of people liable for probation and electronic monitoring fees – only parent/guardian. Argue these fees not be included among the probation conditions for which probation can be extended or revoked.

  26. Fees for Detention and Placement TIP: Charges cannot be assessed unless the petition is sustained or the youth is supervised under §654. In re Gregory K. (1980) 106 Cal.App.3d 164, 169 If the petition is dismissed or found not true, tell the family to keep copies of the court orders to avoid liability for the cost of detention. Parents, guardians, or other persons (but not the youth) may be liable for up to $30 per day of “reasonable costs of support” while a child is placed, detained, or committed to any institution. (§903(c))

  27. Additional Administrative Fees • Drug testing – subject to youth’s ability to pay. (§ 729.9) • DNA Sample Fees – “reasonable portion” of the cost. (Penal C. §295(j)) • Attorney Fees – subject to parent or guardian’s ability to pay. (§903.1(a)). • Subject to their ability to pay, parents can be charged up to $100 a day for refusing to take delivery of a youth within 12 hours of notice of the youth’s scheduled release from detention. (§903.25)

  28. Hypotheticals, Discussion,Questions Our clients should be rehabilitated, not debilitated with debt!

  29. For more information… L. Richard BraucherFirst District Appellate Project730 Harrison St., Ste. 201San Francisco, CA 94107415-495-3119 rbraucher@fdap.org Corene Kendrick Youth Law Center 200 Pine St., Ste. 300 San Francisco, CA 94104 415-543-3379 x3909 ckendrick@ylc.org

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