Filed 1/13/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


In re M.B., a Person Coming                   2d Juv. No. B295284
Under the Juvenile Court Law.               (Super. Ct. No. YJ39017)
                                              (Los Angeles County)

THE PEOPLE,

     Plaintiff and Respondent,

v.

M.B.,

     Defendant and Appellant.



       Does “Dueñas” apply to a mandatory minimum juvenile
restitution fine? (People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas).) No. This celebrated or denigrated case has its
followers and detractors at the Court of Appeal. (See, e.g., People
v. Belloso (2019) 42 Cal.App.5th 647.) Here, Dueñas attempts to
rear its head in juvenile jurisprudence. As we shall explain, even
if this case is “good law,” it does not apply to a mandatory
minimum juvenile restitution fine.
      M.B. appeals a disposition order entered after the juvenile
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court sustained five petitions (Welf. & Inst. Code, § 602) for,
inter alia, first degree residential burglary. (Pen. Code, § 459.)
The trial court declared appellant a ward of the court, placed him
in a camp community program, and ordered him to pay the
mandatory minimum $100 restitution fine. (§ 730.6, subd. (b)(1).)
       Appellant claims that ordering him to pay the $100
restitution fine violates his due process rights because the trial
court did not determine whether he had the financial ability to
pay such a fine.
       We do not agree. Appellant was ordered to pay the
mandatory minimum restitution fine allowable under section
730.6, subdivision (b)(1). The statute provides that in imposing a
section 730.6 fine, the trial court “shall consider any relevant
factors including, but not limited to, the minor’s ability to
pay . . . .” (§ 730.6, subd. (d)(1).) It further provides that “[t]he
consideration of minor’s ability to pay may include his . . . future
earning capacity” and “[the] minor shall bear the burden of
demonstrating a lack of his . . . ability to pay.” (Id., subd. (d)(2);
see also § 730.7, subd. (a) [future earning capacity of minor’s
parent or guardian may also be considered].) The presumption is,
and we believe, that the juvenile court followed these legislative
directions.
       Dueñas involved a mandatory adult restitution fine (Pen.
Code, § 1202.4) and assessments (Gov. Code, § 70373; Pen. Code,
§ 1465.8) in an adult criminal matter. (Dueñas, supra, 30
Cal.App.5th at pp. 1161-1162.) After Dueñas was convicted of
driving with a suspended license and granted probation, she

       All statutory references are to the Welfare and
      1


Institutions Code unless otherwise stated.


                                  2
requested a hearing on her ability to pay the fine and
assessments. The trial court determined that the fine and
assessments were mandatory and rejected defendant’s
constitutional arguments. (Id. at p. 1163.) The Court of Appeal
reversed, concluding that due process requires that a trial court
“conduct an ability to pay hearing and ascertain a defendant’s
present ability to pay” before it imposes assessments under Penal
Code section 1465.8 or Government Code section 70373. (Dueñas,
at p. 1164.) The court further held that the restitution fine
imposed under Penal Code section 1202.4 posed constitutional
concerns because the trial court was precluded from considering
defendant’s ability to pay when imposing the minimum fine
authorized by the statute. To avoid this constitutional problem,
the Dueñas court held that execution of the mandatory fine under
Penal Code section 1202.4 must be stayed until defendant’s
ability to pay is determined. (Dueñas, at pp. 1172-1173.)
       In reaching its conclusions, Dueñas pointed out that the
defendant was indigent, homeless, unemployed, had two young
children, and had cerebral palsy. (Dueñas, supra, 30 Cal.App.5th
at p. 1160.) She was receiving state financial aid and food
stamps. (Id. at p. 1161.) It relied upon Ninth Circuit Court of
Appeal authority which pointed out that punitive fines and fees
“‘can lay a debt trap for the poor. . . .’” (Id. at p. 1163.)
       Appellant argues, by analogy, that the mandatory
minimum restitution fine must be stayed pending a hearing on
his ability to pay. But the Dueñas court’s analysis of criminal
restitution fines under Penal Code section 1202.4 is inapplicable
to restitution fines imposed in the juvenile court under section
730.6. Section 730.6 is similar, but not identical, to Penal Code
section 1202.4. It requires that the juvenile court impose a



                                3
restitution fine of not less than $100 and not more than $1,000 on
any minor found to be a person described in section 602 by reason
of the commission of one or more felony offenses. (§ 730.6, subd.
(b)(1).) Like its criminal counterpart, the juvenile restitution
statute provides for a mandatory minimum restitution fine in
felony cases and states that the fine “shall be imposed regardless
of the minor’s inability to pay.” (§ 730.6, subd. (c), underlining
added; compare Pen. Code, § 1202.4, subds. (b) & (c).) This seems
to be pretty straightforward. The Legislature also expressly says:
“[a] separate hearing for the [restitution] fine shall not be
required.” (§ 730.6, subd. (b)(1).) This also seems pretty
straightforward. None of the considerations that were at play in
Dueñas (ante, pp. 2-3) are present here.
       To the extent that Dueñas purports to state a rule of
California criminal procedure, we question whether the Court of
Appeal, as opposed to the Supreme Court, has the authority to do
so. We are not bound by a sister appellate court opinion and we
are obligated to follow our California Constitution, Article 6, § 13.
We cannot say that a $100 mandatory juvenile restitution fine
resulted in a miscarriage of justice. And, we decline to now order
the further expenditure of scarce judicial resources to “chase” a
$100 mandatory minimum restitution fine.
       In our view, the time for a financial hearing should be
when someone tries to enforce compliance with a “criminal”
sanction. At that time, inability to pay by reason of indigency is a
relevant consideration. Finally, we observe that a restitution fine
may serve as an appropriate rehabilitative measure for a minor.




                                 4
      The judgment (order imposing a $100 restitution fine) is
affirmed.
      CERTIFIED FOR PUBLICATION.



                                    YEGAN, Acting P. J.

We concur:



             PERREN, J.



             TANGEMAN, J.




                                5
YEGAN, J., Concurring:
       I obviously concur with the majority opinion. I am
reminded of a course presented at the 2014 Annual Appellate
Court Justice Institute on judicial opinion writing. The course
written materials posed two questions which are here pertinent:
“How will your opinion be misused and have you created more
problems than you have solved? Ask yourself how a creative
attorney can cite your case for a proposition you never
considered?”
       If the Dueñas court intended that the rule declared therein
applied, “across the board,” to every person sentenced where an
appeal was pending, it called for limited reversals in most, if not
all, criminal cases. This would entail an expenditure of judicial
time and financial resources with little practical benefit. The
criminal and juvenile justice systems do not need an additional
burden added by the Dueñas court. If it was meant to correct the
obvious miscarriage of justice suffered by Ms. Dueñas, and
factually similar cases, then it is fair to say that no one on the
Court of Appeal would disagree.
       In my view, the Dueñas court did create more problems
than it solved and creative attorneys have had a field day. We
are deluged with the Dueñas issue and it has become what the
late Justice William Masterson used to describe as the “issue de
jour.”
       Here, we are asked to reverse for a hearing on the ability to
pay the minimum restitution fine of $100. This would entail a
bus trip from juvenile camp to court for a hearing that may,
perhaps, result in a lessening of a restitution fine. We assume
that at such adversarial hearing, the minor would be represented
by court appointed counsel. Perhaps there would be live-witness



                                 1
testimony. The resulting hearing would be an exaltation of form
over substance. How much time and money should the juvenile
justice system spend to “chase” this $100? My answer is, none.
The latin phrase, “de minimis non curat lex” comes to mind.
       CERTIFIED FOR PUBLICATION.



                                   YEGAN, Acting P. J.




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                  J. Christopher Smith, Judge

             Superior Court County of Los Angeles

                ______________________________

            Mary Bernstein, under appointment by the Court of
Appeal for Defendant and Appellant.

            Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Steven E. Mercer, Acting
Supervising Deputy Attorney General, Esther P. Kim, Deputy
Attorney General, for Plaintiff and Respondent.
