Friday, October 3, 2008

Scram California DUI accused

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Filed 9/30/08 In re C.S. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
In re C.S., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
C.S.,
Defendant and Appellant.
A119824
(Contra Costa County
Super. Ct. No. J0701526)
C.S. admitted to a charge that she drove a vehicle while she had a blood-alcohol
level of .08 percent or higher. She appeals the juvenile court’s dispositional order that
required her to wear and pay the cost of a Secure Continuous Remote Alcohol Monitor
(SCRAM). Although the juvenile court was required by Welfare and Institutions Code
section 903.2, subdivision (b)1 to determine the ward’s ability to pay the cost of the
SCRAM program, we conclude its failure to do so was harmless error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, a Danville police officer stopped C.S. at
approximately 2:55 a.m., after he saw her driving a 2005 Mercedes sports utility vehicle
with the headlights turned off and swerving between lanes. C.S. gave the officer a false
date of birth and told him she left her driver’s license at home. The officer performed a
1 Subsequent statutory references are to the Welfare and Institutions Code.
2
DMV/warrant check, obtained C.S.’s correct date of birth and learned she had no
permanent driver’s license. C.S. denied drinking, but her eyes were red and watery and
she had an odor of alcohol on her breath. Following a field sobriety test, C.S. was
arrested and submitted to a breath test that showed she had a blood-alcohol level of
.21 percent.
A wardship petition alleged C.S. drove with a blood-alcohol level of .08 percent or
higher and drove under the influence of alcohol. It was also alleged that she had a bloodalcohol
level of .15 percent or more, and drove without a valid driver’s license. C.S.
admitted the allegation that she drove with a blood-alcohol level of .08 percent or higher,
and the remaining counts and special allegations were dismissed. At the conclusion of
the dispositional hearing, C.S. was adjudged a ward of the court, and her maximum time
of confinement was set at six months. She was placed on home supervision, and was
ordered to undergo six months of juvenile electronic monitoring (JEM), with permission
to attend work and school. Additional conditions of her probation included a curfew,
participation in substance abuse assessment and counseling, an adolescent D.U.I.
Program, a one-year driving privilege restriction, and 30 days on the SCRAM program.2
C.S. filed a timely notice of appeal.
DISCUSSION
C.S. argues “[t]he court had no authority to order [her] to use her earnings to pay
for the SCRAM monitor,” and that the court failed to make a finding of her ability to pay
for the monitor as required by statute. Two sections of the Welfare and Institutions Code
are relevant to our consideration of the issues.
Section 730, subdivision (b) provides that “[w]hen a ward . . . is placed under the
supervision of the probation officer . . . the court may make any and all reasonable orders
for the conduct of the ward including the requirement that the ward go to work and earn
money for the support of his or her dependents or to effect reparation and in either case
that the ward keep an account of his or her earnings and report the same to the probation
2 The court declined to impose four weekends in Juvenile Hall that were
requested by the People.
3
officer and apply these earnings as directed by the court. The court may impose and
require any and all reasonable conditions that it may determine fitting and proper to the
end that justice may be done and the reformation and rehabilitation of the ward
enhanced.” “Section 730 grants courts broad discretion in establishing conditions of
probation in juvenile cases.” (In re Christopher M. (2005) 127 Cal.App.4th 684, 692.)
Section 903.2, subdivision (a) authorizes the court to order a minor’s family and
the minor’s estate to pay for specific probation services, including the cost of electronic
monitoring. But subdivision (b) of the statute states: “Liability shall be imposed on a
person pursuant to this section only if he or she has the financial ability to pay. In
evaluating a family’s financial ability to pay under this section, the county shall take into
consideration the family income, the necessary obligations of the family, and the number
of persons dependent upon this income.”
It is clear from a plain reading of section 730, subdivision (b) that the juvenile
court’s discretion to order reasonable conditions of probation was broad enough to
include the requirement that C.S. wear the SCRAM device. That condition of probation
for a teenager who drove a motor vehicle while she had a blood-alcohol level of
.08 percent or higher seems logically designed to enhance her prospects for “reformation
and rehabilitation.” Imposing the requirement upon C.S. or her family to pay the cost of
the SCRAM device is slightly more complicated. In this case, we conclude that while the
juvenile court erred when it did not make a specific determination of ability to pay
required by section 903.2, subdivision (b), its failure to do so was harmless error.
When the juvenile court indicated at the dispositional hearing that the cost of the
SCRAM program was approximately $500 per month, counsel for C.S. objected.
Counsel argued that C.S. was a client of the public defender and that her family could not
pay the $13 to $15 daily fee for the monitor “unless the Probation Department will offer
some financial supplement to cover that fee.” C.S.’s mother told the court that the family
lost its home the previous year, and her husband lost his small business. Mother said that
4
even though both she and her husband were currently employed, and C.S. was also
working, the family was “$2,000 in the hole every month to pay our bills.”3
The court stated: “Given what appears to be a serious alcohol problem, I am going
to order the SCRAM monitor for 30 days.” The court told C.S.: “You can use your
earnings to pay for the SCRAM monitor. We are talking for 30 days.” C.S. was enrolled
in the SCRAM program on November 1, 2007. At C.S.’s request, we take judicial notice
of a “SCRAM ALCOHOL MONITORING FINAL REPORT” from her juvenile court
file that states C.S. successfully completed the program, “was current in payment of her
supervision fees,” and was released on December 1, 2007.
The evidence before the court suggested that C.S.’s family did not have the ability
to pay for the cost of the SCRAM device. The juvenile court made no finding that they
did. The court also made no explicit finding that C.S. had a sufficient estate to pay the
cost. Instead, the court directed C.S. to pay for the device out of her earnings. While
section 903.2, subdivision (b) requires the court to make a finding of ability to pay when
it orders a juvenile’s estate or family to pay the cost of a program, section 730,
subdivision (b) permits the court to order the minor to work and earn money to pay
reparations. “In a general sense ‘reparation’ means reimbursement to the complainant or
to a prosecuting government agency.” (People v. Labarbera (1949) 89 Cal.App.2d 639,
643.) Here, the juvenile court ordered that C.S. rather than the county absorb the cost of
the SCRAM device, and that she pay for it out of her earnings. While section 730
requires that the minor report earnings to the assigned probation officer and apply the
earnings as directed by the court, there is no indication that requirement would have had
any operative effect in this case. In fact, all indications are that C.S. did exactly what the
court directed and paid for the SCRAM monitor.4
3 According to the probation report, C.S. was employed as a hostess at a cantina,
her father was employed at a technology company, and her mother was employed as a
nanny. During the detention hearing, counsel stated C.S. was “keeping up with her
studies despite working 40 hours a week.”
4 We are not persuaded by the Attorney General’s parting suggestion that the
issue of ability to pay is moot because C.S. has completed the SCRAM program. The
5
Although the juvenile court should have determined the ability of C.S.’s family or
her estate to pay the cost of the SCRAM device, C.S.’s continuing employment and the
authority given the court in section 730 render the lack of a finding in this case harmless.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The dispositional order is affirmed.
_________________________
Siggins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
reply brief points out that C.S. “may have borrowed the money, and thus be in debt for
that amount, or she may have obtained it in another way which does not reflect on her
financial ability to pay under [section 903.2, subd. (b)].”