Restitution, Fines, and Fees

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?
• 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
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
Six Considerations for all Financial
Obligations Against Our Clients
1. Can sanctions be
imposed at all?
2. Is it discretionary or
3. When can it be
imposed and how?
4. Are notice and a
hearing required?
5. How are the financial
6. How is the claim
contested and
preserved for
appellate review?
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.
More Info on Fines
Summary of types of fines at
Fines do not apply to:
• probation without wardship § 725 (a)
• informal supervision (diversion) § 654.2
Penalties on Fines: It gets worse!
• PC 1464: State penalty
of $10 for every $10
fine imposed (does not
apply to restitution
• PC 1465.7(a) –
additional 20%
surcharge on base
amount of fine
• 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
What would effective juvenile counsel do?
ALWAYS advise youth and
families about the
compounding penalties on
ALWAYS argue for reduced
fines because of onerous
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
Restitution Fines (§ 730.6(b)-(g))
• Separate and additional
fine for all § 602 youth
• No separate hearing is
• Applies to youth on
probation without
wardship (§ 725(a)) and
• 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
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)
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
Restitution (§ 730.6(a) & (h)-(r))
• Mandatory
• Paid to victims to compensate
them for their economic losses
• Discretionary for youth on
DEJ (§ 794). Ability to pay is
G.C. v. Sup. Ct. (2010)
183 Cal.App.4th 371, 378
• Applies to minors on informal
• Court may find “compelling
supervision (§ 654.2) and
and extraordinary” reasons to
probation without wardship
reduce or not impose… but
inability to pay is not a
– Note: Youth are not eligible for
compelling or extraordinary
654.2 if restitution amount is
greater than $1,000
• Reasons to waive or reduce
must be on the record and the • Joint & several liability with
court must order community
In re S.S. (1995)
37 Cal.App.4th 543, 550
Restitution: is there any due process?
Restitution: Notice and Hearing
The minor has a right to a hearing on the amount of
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
Nature of a Restitution Hearing
Does not require formalities of a trial, therefore:
• No right to confront or
• Evidentiary basis for showing
cross-examine witnesses,
losses are minimal. Property
including the probation
owner can estimate value of
officer who prepared the
objects even if there are no
receipts or appraisals.
• Court may consider the
• Restitution amount must be
probation report despite
proved by a preponderance
its hearsay character as
of the evidence.
long as the court
• Once V makes prima facie
independently determines
showing, burden shifts to the
the amount of restitution.
defendant to disprove the
• Victims have a right to
amount or show it is
express their views.
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)
Penal Code 1202.4(f)(3)
Wages or profits lost due to time
spent assisting the prosecution or
the police (including wages or
profits lost by a victim’s family)
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
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
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.
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.
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.
Ways to Challenge or Modify
a Restitution Order
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.
Restitution as a Condition of
• 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
Can my client have probation revoked for
not paying restitution?
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)
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
• 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.
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.
Fees for Detention and Placement
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.
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.
Additional Administrative Fees
• Drug testing – subject
to youth’s ability to
pay. (§ 729.9)
• DNA Sample Fees –
“reasonable portion”
of the cost. (Penal C.
• 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)
Hypotheticals, Discussion,
Our clients should be rehabilitated,
not debilitated with debt!
For more information…
L. Richard Braucher
First District Appellate Project
730 Harrison St., Ste. 201
San Francisco, CA 94107
[email protected]
Corene Kendrick
Youth Law Center
200 Pine St., Ste. 300
San Francisco, CA 94104
415-543-3379 x3909
[email protected]

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