California Court of Appeal Sep 1, 2020 No. E073420Unpublished
Filed 9/1/20 In re A.A. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.A., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E073420 Plaintiff and Respondent, (Super.Ct.No. RIJ1800722) v. OPINION A.A.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Roger A. Luebs,
Judge. Affirmed as modified.
Jenny M. Brandt, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Heather B.
Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant A.A. (minor) appeals from orders of the juvenile court
imposing a restitution fine and probation term.
BACKGROUND
A petition pursuant to section 602 of the Welfare and Institutions Code1 was
filed after minor, then a 14 year old who had been expelled from school, trespassed
onto the school’s premises and punched another minor in the face.
To the extent any of the other items listed would be a subject of physician
involvement, such as narcotic medication or other controlled substance, a written
prescription—not simply a recommendation—is required except when dispensed
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directly to the patient by a medical professional. (Health & Saf. Code, §§ 11150,
11158.)
Although the requirement of court approval of medical recommendation is
reasonably limited to marijuana, the language of the condition is susceptible to
overbroad interpretation so as to prohibit the minor from possessing or using medically
necessary prescribed medication. Accordingly, we will order modification of the
challenged condition to make clear the need for court approval of a medical
recommendation for marijuana and to specifically except medically necessary
medications prescribed for minor from the list of prohibited items.
(b) The challenged condition’s reference to intoxicants
Minor argues the language of the challenged probation condition that prohibits
her from knowingly possessing, consuming, inhaling, or injecting any intoxicants, is
unconstitutional because the word “intoxicants” is vague and she could never know
what substance is an intoxicant. We disagree.
A condition is not impermissibly vague if it is sufficiently precise to alert
probationers of what is required of them, that is, to give fair warning of prohibited
behavior, and for the court to be able to determine whether the condition has been
violated. (Sheena K., supra, 40 Cal.4th at p. 889.) In considering a vagueness claim,
the probation condition is interpreted using a reasonable, objective reader standard.
(In re I.V. (2017) 11 Cal.App.5th 249, 261.) A condition will not be invalidated as
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unconstitutionally vague if there is a reasonable and practical construction of its
language. (People v. Hall (2017) 2 Cal.5th 494, 501.)
Here, minor argues the word “intoxicants” is unconstitutionally vague because
neither she nor those enforcing the condition will know what substances fall within
that category, leaving her at risk of incarceration for ingesting, for example, a cough
drop. We are not persuaded.
It is true that “intoxicants” include common items such as mouthwash and over-
the-counter medications that are not regulated by statute and may contain ingredients
minor may not realize are intoxicating. But, where, as here, the condition prohibits the
knowing use or possession of “intoxicants,” it is not void for vagueness. (People v.
Rodriguez (2013) 222 Cal.App.4th 578, 590-593, cited with approval in Hall, supra, 2
Cal.5th at pp. 499-500, cited with disapproval to the extent Rodriguez held the
knowledge requirement must be express where prohibited item was not criminalized
by statute but was merely related to criminality, Hall, at p. 503, fn. 2.) The reasonable
and practical construction of the provision is that, subject to the aforementioned
exception for medically necessary medications, minor may not willfully possess,
consume, inhale, or inject any substance, be it controlled or not, that she knows has an
intoxicating effect. (Hall, supra, 2 Cal.5th at p. 500.)
2. The restitution fine
In its memorandum to the juvenile court, the Riverside County Probation
Department recommended minor pay a restitution fine in an unspecified amount. In
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the course of the disposition hearing, minor’s counsel noted that the report did not list
an amount for the restitution fine and that the court had not yet ordered it. Counsel
added, “[d]ue to mom’s current circumstances, I would ask the Court to strike that
since she does not have the ability to pay.” The court denied the request and imposed
a $100 restitution fine, the maximum amount allowed by section 730.6.
Whenever a minor is found to be a person coming within section 602 because
of the commission of one or more misdemeanor offenses, the juvenile court is required
by section 730.6 to order the minor to pay a restitution fine commensurate with the
seriousness of the offense(s). (§ 730.6, subd. (b)(2).) The juvenile court has discretion
in fixing the amount of the fine so long as it does not exceed $100. (Ibid.) It must
impose the fine without regard to the minor’s ability to pay but is required to consider
that factor, including his or her future earning capacity, along with the seriousness and
gravity of the offense, the circumstances of its commission, any economic gain to the
minor and the losses suffered by others as a result of the offense when determining the
amount to be imposed. (§ 730.6, subds. (c), (d).) A separate hearing for the fine is not
required. (§ 730.6, subd. (b)(2).)
In addition, there is a rebuttable presumption that a parent who has joint or sole
legal and physical custody and control of the minor is jointly and severally liable for
the amount of the restitution fine subject to consideration of the parent’s inability to
pay. (§ 730.7, subd. (a).) In considering the parent’s ability to pay, the court may
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consider future earning capacity, present income, number of persons dependent on that
income, and other necessary obligations, such as rent, food, and clothing. (Ibid.)
We note that the objection to the fine made by minor’s counsel appears to refer
only to the mother’s inability to pay. But, because the probation report counsel
referred to addresses only the minor, who with her mother is jointly and severally
liable for the fine imposed, and because the parties on appeal have treated the
objection to imposition of the fine as encompassing the minor, we do not find the issue
forfeited as to her.
Here, the court imposed the maximum fine of $100 without mention of any of
the factors required by sections 730.6 and 730.7 to be considered. The court’s
statement that it was “going to impose the restitution fine, misdemeanor—two
misdemeanors, a hundred dollars both,” (emphasis added) without mention of any of
the statutory factors suggests it was not aware of its discretion to order a fine in any
amount ranging from $0.01 to $100. And, had the court considered the factors, we
would find it abused its discretion by imposing the maximum fine in the circumstances
presented.
Here, minor was 14 when she trespassed onto school grounds and punched
another minor in the face. There is no evidence minor caused the victim serious
injury, or that she benefitted economically from committing her offenses. The record
demonstrates that minor and her mother had no ability to pay the maximum fine and
their prospects for paying the fine from future earnings were dismal. Minor had been
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homeless for an extended period of time and family members were unable or unwilling
to provide long-term shelter for her. She had suffered abuse and neglect, she had a
history of mental health issues, defiance, drug use, and refusal or inability to attend
school on anything near a regular basis. Her mother has substance abuse issues, was
on probation for offenses including burglary and possession of controlled substances
while in jail, and has a minor son who is also in the juvenile justice system. At the
time minor was taken into custody in June 2019, she had been living with her mother
for six months, who provided a tent and, more recently, a car for housing. Bathing
facilities consisted of using a friend’s access to a swimming pool that had showers.
Laundry was done by hand. Together, minor and mother collected recycling to
produce income.
Although we could remand this matter to determine an appropriate fine between
$0.01 and $100, to do so would be judicially uneconomical. (People v. Diaz (1991)
229 Cal.App.3d 1310, 1316.) We find $1.00 to be a reasonable fine in the
circumstances presented and order modification of the restitution fine to reflect that
amount.
In view of the foregoing, we need not address the issue whether Dueñas applies
to the imposition of restitution fines by the juvenile court.
DISPOSITION
The challenged condition is ordered modified to read as follows: With the
exceptions of (1) necessary medication prescribed for or administered to the minor by
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a licensed health care professional and (2) marijuana in an amount and used in a
manner that has been recommended for the minor by a physician and approved by the
court, along with paraphernalia necessary for the use of that substance as
recommended and approved, the minor may not knowingly possess, consume, inhale,
or inject any intoxicants, alcohol, narcotics, aerosol products, or other controlled
substances, poisons, or illegal drugs; nor may she possess paraphernalia related to use
of those items.
The restitution fine is ordered modified to reflect a total fine of $1.00 (one
dollar).
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
CODRINGTON J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a probation condition requiring court approval for medical recommendations was overbroad and required modification to exclude prescribed medications, and that the juvenile court abused its discretion by imposing the maximum restitution fine without considering the minor's inability to pay.
Issues
Whether the probation condition prohibiting 'intoxicants' is unconstitutionally vague.
Whether the probation condition requiring court approval for medical recommendations is unconstitutionally overbroad.
Whether the juvenile court abused its discretion by imposing the maximum restitution fine without considering the minor's ability to pay.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“the language of the condition is susceptible to overbroad interpretation so as to prohibit the minor from possessing or using medically necessary prescribed medication.”
“had the court considered the factors, we would find it abused its discretion by imposing the maximum fine in the circumstances presented.”