IN RE J.G.

Appellant’s Opening Brief on the Merits

Cal.July 21, 2017

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA IN RE J.G., a Person Coming Under the Juvenile Court Law. PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, 1G., Defendant and Appellant. SUPREME COURT FILED No. 8240397 JUL 21 2017 Court of Appeal Jorge Navarrete Clerk No. C077056 Shasta County Deputy Superior Court No. JDSQ122933901 N e e N e e N e e s e e e e e e e e e e e e e e e e OPENING BRIEF ON THE MERITS REDACTED VERSION Redacts Material From Sealed Record LAUREL THORPE Executive Director WILLIAM WHALEY Staff Attorney State Bar No. 293720 CENTRAL CALIFORNIA APPELLATE PROGRAM 2150 River Plaza Drive, Suite 300 Sacramento, CA 95833 Telephone: (916) 441-3792 Email: wwhaley@capcentral.org Attorneys for Appellant IN THE SUPREME COURT OF THESTATE OF CALIFORNIA IN RE J.G., a Person Coming Under the Juvenile Court Law. PEOPLE OF THE STATE OF CALIFORNIA, J.G., Plaintiff and Respondent, Defendant and Appellant. No. 8240397 Court of Appeal No. C077056 ) ) ) ) ) ) ) Shasta County ) Superior Court ) No. JDSQ122933901 ) ) ) ) ) - OPENING BRIEF ON THE MERITS REDACTED VERSION Redacts Material From Sealed Record LAUREL THORPE Executive Director WILLIAM WHALEY Staff Attorney State Bar No. 293720 CENTRAL CALIFORNIA APPELLATE PROGRAM 2150 River Plaza Drive, Suite 300 Sacramento, CA 95833 Telephone: (916) 441-3792 Email: wwhaley@capcentral.org Attorneys for Appellant TABLE OF CONTENTS Page OPENING BRIEF ON THE MERITS. ........ 00s e eee eee eens 1 TABLE OF CONTENTS...... 0... eee eee n eens 2 TABLE OF AUTHORITIES ........ 0c. cece ee4 ISSUES PRESENTED FOR REVIEW ........- 2: cece ee eee e ees 8 STATEMENT OF THE CASE AND FACTS .......--0 2 0c e etree eens 9 ARGUMENT a cee ence ence eee eee eee e eee 11 I. THE JUVENILE COURT LACKED JURISDICTION TO CONVERT UNPAID RESTITUTIONTO A CIVIL JUDGMENT I. THE JUVENILE COURT A. The juvenile court violated the federal anti-alienation rovisions B. The juvenile court abusedits discretion b C. CONCLUSION. .... 0. 0c cece eee teen enna eens 33 CERTIFICATE OF WORD COUNT... 2.0.0... eee cece eens 34 DECLARATION OF SERVICE ......... 0 eee cece tere eens 35 c h N S S TABLE OF AUTHORITIES Page FEDERAL CASES Anderson v. Cranmer(10th Cir. 2012) 697 F.3d 1314............55-- 25 Bennett v. Arkansas (1988) 485 U.S. 395.0... . ce eee eee 20, 21, 27 Gleave v. Graham (W.D.N.Y. 1999) 954 F. Supp. 599... 6... eee eee 24 Philpott v. Essex County Welfare Bd. (1973) 409 US. 413......... 20, 21 United States v. Lampien (7th Cir. 2001) 1 Fed.Appx. 528............ 23 United States v. Smith (4th Cir. 1995) 47 F.3d 681 «0.00... ..0 002s 24 Wash. State Dep't ofSoc. & Health Servs. v. Guardianship Estate of Keffeler (2003) 537 U.S. 371 00... ee eee eee eee eens', 21, 22, 26 FEDERAL REGULATIONS 20 C.F.R. § 416.635(a) ec cence eee eee eee te eens 26, 27 20 C.F.R. § 416.640(a) .. 0.eeeees ... 26, 27 FEDERAL STATUTES AQ ULS.C. § 407(a).eentent e ees 20 42 U.S.C. § 1383(d)(1) 2.ene ne eee ees 20 CALIFORNIA CONSTITUTION article I, § 28 2.0... cece cc cee eee eee teens 26, 27 STATE CASES B.W. v. Board ofMedical Quality Assurance (1985) 169 CalApp.3d 219.0... cece ee eee eee eee eee 17 Charles S. v. Superior Court (1982) 32 Cal.3d 741 ..........4555. 28, 29 City ofRichland v. Wakefield (Wash. 2016) 380 P.3d 459.......... 21,25. Coker v. JPMorgan Chase Bank, N.A. (2016) 62 Cal.4th 667.......... 12 G.C. v. Superior Court (2010) 183 Cal.App.4th 371 ...........0.. 19, 30 Gikas v Zolin (1993) 6 Cal.4th 841.00... 0c. cece eee cece eee eee 15 In re Brian S. (1982) 130 Cal.App.3d 523 ....... 6.6 cece eee eee ees 30 Inre S.M. (2012) 209 Cal.App.4th 21 2.0... . ceceeee 25 In re SpencerS. (2009) 176 Cal.App.4th 1315....... 0.6... e eee eens 19 Kays v. State (Ind. 2012) 963 N.E.2d 507 .........--0005- 20-23, 25, 26 Luis M. y Superior Court (2014) 59 Cal.4th 300............-. 12, 14, 32 Milklosy v. Regents of University ofCalifornia (2008) 44 Cal.4th 876... 16 Parmett v. Superior Court (1989) 212 Cal.App.3d 1261.............. 18 People v. Brasure (2008) 42 Cal.4th 1037 ....... 6. 6c eee eee eee 31 People v. Cromer (2001) 24 Cal.4th 889 2.00.6... ccc eee ences 20, 31 People v. Giordano (2007) 42 Cal.4th 644... 0.0... 6... e cece eee eee 27 People v. Gonzales (2017) 2 Cal.Sth 858 «6.1... eee cece eee ees 12 People v. Gross (2015) 238 Cal.App.4th 1313. .......... 6c eee eens 17 People v. Harvey (1979) 25 Cal.3d 754 1.0... cece eee eee eee es1+. 32 5 People v. Trevino (2001) 26 Cal.4th 237 «6.0... . cece eee rere ees 16 People v. Williams (1998) 17 Cal.4th 148 0.0... . 6. eee eee eee ees 32 State Dept. OfPublic Health v. Superior Court (2015) 60 Cal.4th 940... 19 State v. Eaton (Mont. 2004) 99 P.3d 661 ......- 0. cee eee ee eee 21, 25 STATE STATUTES Penal Code § 1203.4...eeeteen ene 17 Welf. & Inst. Code § 602 oo cccccceceeeeseeeteeeteeeeeeeeeees 8,9, 14, 15, 19, 28 § 654 ooo ccc ccceceeeeeeeeeeueeseeeeeeentneenteneneees 28 § 654.2 coc cccccececeseceeeuseeseeeeeseeeeeeerenenens 16 § 707, subd. (b) ....... cece cence teen eee nen nnas 13 § 730.6 2. ccc cee eee eee ttn n nas 14-16, 19 § 730.6, subd. (a) .. 0. 0c ececeeeceeeseeeeeeeeeeeeeeeene ees 14 § T4216...eceeeee 9, 11, 14, 15, 19, 28, 31 § 742.16, subd. (a)... 00 ccceeeeceseeeeeeeene eee ees 14, 27, 28 § 742.16, subd. (N) ....0c0cececeeeeeeeevee eee ne ees 30, 31, 33 § 186 occ cececeececueuseteseeeeneuenenenentereees 16-19 § 786, subds. (a) & (b).--022e errors.oo cevceeuueteeueennes 16 § 786, subd. (2) css ec cceeececeeeeeeeeee esse eee eenenes 16 § 790 occ cc ccc cece cece e eet e eee e eee eeeeeeeeeee enn nees 13 § 790, subd. (a) 2...eee ee eee eet nee es 13 § TOL ccccenteen eens renee nee 13 iA11-13, 15-17, 19, 29, 33 § 793, subd. (a) 0...eeeete net teens 13 § 793, subd. (C) 66. cece ee eee eee ee eee 8, 13, 15 SS13-15, 28 OTHER REFERENCES Assembly Floor Analysis, Analysis of Assembly Bill No. 666 (2015-2016 Reg. Sess.), as amended September4, 2015 .......:17 Voter Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 2, subd. (j) .. 6. ee eee ee eee eee es 18 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA IN REJ.G., a Person Coming Under ) the Juvenile Court Law. ) No. 8240397 ) PEOPLE OF THE STATE OF ) Court of Appeal CALIFORNIA, ) No. C077056 ) Plaintiff and Respondent, ) Shasta County ) Superior Court V. ) No. JDSQ122933901 ) J.G., ) ) Defendant and Appellant. ) ) ISSUES PRESENTED FOR REVIEW I, Whenajuvenile court terminates a minor’s probation in a deferred entry ofjudgment (DEJ) case and dismisses the Welfare and Institutions Code! section 602petition, can it also convert unpaidrestitution to a civil judgment? Or, does section 793, subdivision (c) prohibit such a conversion order because it states that following a dismissal “the arrest upon which the judgment was deferred shall be deemed neverto have occurred ...”? II. Whensetting restitution as a condition of DEJ probation, which requires the juvenile court take into account a minor’s ability to pay, does a juvenile court err by: ' All further non-designated statutory references are to the Welfare andInstitutions Code unless otherwise specified. 8 (c) treating a minor’s federal Supplemental Security Income (SSI) benefits or his father’s Social Security Disability (SSD) benefits as incomefor ability to pay purposes? failing to reducerestitution to an amount the minor can repay during the deferral period or finding that a minor hadthe ability to pay $36,381 in restitution when his family survived below the federal poverty line solely on the minor’s SSI benefits, his father’s SSD benefits, and food stamps? setting restitution above the $20,000 cap set forth in section 742.16, absent evidence the minor engaged in more than onetort? STATEMENTOF THE CASE AND FACTS 2 “CT”refers to the Clerk’s Transcript filed in the Court of Appeal on August 25, 2014. “1RT”refers to the Reporter’s Transcript of the proceedingsheldin the juvenile court on January 1, 2014 and July 9, 2014. “ORT”refers to the Reporter’s Transcript of the proceedings held on January 17, 2013, November 7, 2013, November 14, 2013, and December 19, 2013. “RST”refers to the Reporter’s Supplemental Transcript of the proceedings held on December5, 2013. 9 — _ The Court ofAppeal disagreed with each of those contentions.(Slip. Op., at pp. 2, 9-17.) J.G.filed a petition for review, which this Court granted. ARGUMENT _ THE JUVENILE COURT LACKED JURISDICTION TO CONVERT UNPAID RESTITUTION TO A CIVIL JUDGMENT Section 793 gives minors who complete DEJ very broadprotection: it wipes their slate clean as if the underlying arrest had never occurred. J.G. wasnot afforded that broad protection.P| ll Court of Appeal disagreed and upheld the conversion order. It correctly identified the issue as one ofstatutory construction. But instead of applying section 793's unambiguouslanguage, it found support for the conversion order in other sections, which permit conversion ordersin different contexts. (See Slip Op., at pp. 10-12.) This Court should reverse. The issueis one offirst impression. While this Court has discussed how restitution operates in the DEJ context (Luis M. v. Superior Court (2014) 59 Cal.4th 300), it has not considered the particular interaction at issue in this case: whether unpaid restitution can be converted to a civil judgment when a minor completes DEJ. That issue presents a question of statutory construction, which this Court reviews de novo. (See Cokerv. JPMorgan Chase Bank, N.A. (2016) 62 Cal.4th 667, 674.) Thefirst principle of statutory construction requires us to interpret the words ofthe statute themselves, giving them their ordinary meaning, and reading them in the context of the statute (or, here, the initiative) as a whole. If the language is unambiguous,there is no needfor further construction.If, however,the language is susceptible of more than one reasonable meaning, we may consider the ballot summaries and arguments to determine how the voters understood the ballot measure and whatthey intended in enacting it. In construing constitutional and statutory provisions, whether enacted by the Legislatureor byinitiative, the intent of the enacting body is the paramount consideration. (People v. Gonzales (2017) 2 Cal.5th 858, 868, internalcitations and quotations omitted.) Theplain language of section 793 unambiguously prohibits a juvenile court from converting unpaid restitution to a civil judgment when a 12 minor completes DEJ. Section 793 provides, If the minorhas performedsatisfactorily during the period in which deferred entry ofjudgment was granted,at the end of that period the charge or charges in the wardship petition shall be dismissed and the arrest upon which the judgment was deferred shall be deemed never to have occurred and any records in the possession ofthe juvenile court shall be sealed, except that the prosecuting attorney andthe probation department of any county shall have accessto these records after they are sealed for the limited purpose of determining whether a minoris eligible for deferred entry ofjudgment[in the future] pursuant to Section 790. (§ 793, subd.(c).) If a court must deem an arrest neverto have occurred and seal all the records, it cannot enter an order converting unpaid restitution to a civil judgmentas those actions are mutually exclusive. Whether section 793 is considered in isolation, or in the context of the DEJ program as a whole, the conclusion remainsthe same:the drafters did not intend for juvenile courts to convert restitution to a civil judgment when a minor completes DEJ. In essence, DEJis availableto first time offenders who have been charged with a felony offense thatis notlisted in section 707, subdivision (b). (§ 790, subd. (a).) DEJ begins with the minor admitting the allegations in the wardshippetition. (§§ 790, 791.) But instead of being adjudged a ward, the minoris placed on DEJ probation for 12 months. (§ 794.) Section 794 lists the probation conditions that can be imposed.If the minor successfully completes DEJprobation, the petition will be dismissed pursuantto section 793. (§ 793, subd. (c).) If the minor does not successfully complete DEJ probation he can be adjudged a ward. (§ 793, subd.(a).) 13 Restitution “may” be imposed as a condition of DEJ probation. (§ 794.) However, section 794 does not provide guidelines for doing so. Instead,it provides “The minor may also be required to pay restitution to the victim or victims pursuantto the provisionsofthis code.”(Italics added.) Sections 730.6 and 742.16 are other provisions of the Welfare and Institutions Code dealing with restitution. Section 730.6 is the general restitution statute and section 742.16 is the restitution statute that deals specifically with vandalism. Sections 730.6 and 742.16 were drafted with minors who have already been adjudged wardsin mind. Both sectionsstate they apply to minors whoare“foundto be a person described in Section 602.” (§§ 730.6, subd. (a), 742.16, subd. (a).) Minors who have been granted DEJ, however, have not been adjudged wards. Nevertheless, in Luis M., supra, 59 Cal.4th 300,this Court acknowledgedthat sections 730.6 and 742.16 apply, to some extent, in the DEJ probation context. There, a minor was placed on DEJ for nineacts ofgraffiti. (59 Cal.4th at pp. 303-304.) As a condition of DEJ probation, the juvenile court imposedrestitution of $3,881.88. bid.) The evidence offered in support of that amount wasbased onthe fact the minor committed nine acts of graffiti and the city’s average cost to abate an incidentofgraffiti was $431.32. (Id. at p. 304.) This Court found that calculating restitution that way violated sections 730.6 and 742.16, whichit observed apply in the DEJ context through the “other provisions of this code”languagein section 794. However, this Court was not called upon in Luis M. to decide whether any unpaid restitution could be converted to a civil judgment when the minor completed DEJ. It is not disputed that section 794 incorporates sections 730.6 and 742.16 for purposesof imposingrestitution as a condition of DEJ probation. 14 Noris it disputed that sections 730.6 and 742.16 contain provisions that allow unpaid restitution to be converted to a civil judgment. Whatis disputed is whether the conversion provisionsin 730.6 and 742.16 can be applied when a minor completes DEJ notwithstanding section 793, which provides that a minor who completes DE]is entitled to have his slate wiped clean. Section 793 governs on the question of what happens when a minor completes DEJ. As set forth above,it states that the wardship petition must be dismissed, the arrest deemed never to have occurred, and all the records sealed. Those protections and converting unpaid restitution are mutually exclusive. For them to coexist there would need to be sometype of exception to the arrest deeming and record sealing language. However, there is only one exceptionto those broadprotections: the prosecutor and probation officer may inspect the sealed recordsfor the limited purpose of determining whether a minoris eligible for a future grant of DEJ. (§ 793, subd. (c).) Listing that exception, but not another that allows unpaid restitution to be converted to a civil judgment, is strong indicatorthat unpaid restitution cannot be converted to a civil judgment. “The expression of somethingsin a statute necessarily meansthe exclusion ofother things not expressed.” (Gikas v Zolin (1993) 6 Cal.4th 841, 852.) The argumentthat section 794's oblique reference to “other provisionsof this code” somehow incorporated a restitution conversion provision that provides an additional exception to section 793's broad protectionsis illogical. When the drafters wanted to allow unpaidrestitution to survive the dismissal of the 602 petition, they know howto say so clearly. 15 Take, for example, section 786. Section 786 governs on the question of what happens when a minor completes formal probation or informal supervision pursuantto section 654.2. Like section 793,it states that the wardship petition must be dismissed, the arrest deemed neverto have occurred,andall the records sealed. (§ 786, subds.(a) & (b).) However,it then lists a numberof exceptions to those broad protections including one that expressly permits unpaidrestitution to be converted to a civil judgment: (1) This section does not prohibit a court from enforcing a civil judgment for an unfulfilled orderofrestitution ordered pursuantto Section 730.6. A minoris not relieved from the obligation to pay victim restitution,restitution fines, and court-ordered fines and fees because the minor’s recordsare sealed. (2) A victim or a local collection program may continue to enforce victim restitution orders, restitution fines, and court- ordered fines andfees after a record is sealed. The juvenile court shall have accessto records sealed pursuantto this section for the limited purpose of enforcing a civil judgment or restitution order. (§ 786, subd. (g).) As a matterof statutory construction,the existence of an express exception in section 786 that allows unpaid restitution to be converted to a civil judgmentis a strong indication that such an exception should not be read into section 793. (See Milklosy v. Regents of University ofCalifornia (2008)44 Cal.4th 876, 896 [“[W]hen the Legislature uses a critical word or phrasein onestatute, the omission ofthat word or phrase in another statute dealing with the same general subject generally shows a different legislative intent.”]; People v. Trevino (2001) 26 Cal.4th 237, 242 {same].) 16 Section 786 did not always contain an exception that allowed unpaid restitution to be convertedto a civil judgment when a minor completed probation or informal supervision.Its provisions used to mirror those set forth in section 793. However, in 2015, the Legislature amendedsection 786 to add the exception. (See Assembly Floor Analysis, Analysis of Assembly Bill No. 666 (2015-2016 Reg. Sess.), as amended September 4 , 2015,p. 2 [stating that the amendment would “Provide that a court is not prohibited from enforcing a civil judgmentfor an unfulfilled order of restitution . . . because the minor’s recordsaresealed.”].) Penal Codesection 1203.4 is another example of a dismissal statute that is not as broad as section 793. It provides that dismissal releases the defendant from “all penalties and disabilities resulting from the offense of whichhe or she has been convicted.” In People v. Gross (2015) 238 Cal.App.4th 1313, 1315-1316,the court considered whether a dismissal pursuantto section 1203.4 relieved the defendant of his obligation to pay direct victim restitution. The court held thatit did not becausedirect victim restitution “is not a penalty or disability.” Section 793, unlike Penal Code section 1203.4, does not merely release a minor from all penalties or disabilities, but wipes the minor’s slate clean as if the arrest had never occurred. While restitution may survive a dismissal under Penal Codesection 1203.4, it does not survive a dismissal under section 793. The arrest deemed neverto have occurred andrecord sealing language in section 793 is a broaderprotection than releasing a defendant from penalties and disabilities. Courts haveinterpreted protections similar to those found in section 793 very broadly. (See B.W. v. Board ofMedical Quality Assurance (1985) 169 Cal.App.3d 219, 230 [barring administrative action takenagainst a 17 licensee based upon an arrest report when the licensee had completed diversion and the arrest was deemed neverto have occurred]; Parmett v. Superior Court (1989) 212 Cal.App.3d 1261, 1268 [discovery barred in civil suit of facts related to arrest that was deemednever to have occurred].) If administrative action and discovery are prohibited by such language, a civil judgment should betoo. In 2000,the voters added the juvenile DEJ program via Proposition 21. The uncodified findings and declarations makeclearthat successful completion of DEJ was intendedto result in “expungement.” Juvenile court resources are spent disproportionately on violent offenders with little chance to be rehabilitated. If California is going to avoid the predicted wave ofjuvenile crime in the next decade, greater resources, attention, and accountability must be focused onless serious offenders, such as burglars, car thieves, and first time non-violent felons who have potential for rehabilitation. This act must form part of a comprehensive juvenile justice reform package which incorporates major commitments to already commenced ‘at-risk’ youth early intervention programs and expanded informaljuvenile court alternatives for low-level offenders. These efforts, which emphasizerehabilitative protocols over incarceration, must be expanded aswell under the provisions of this act, which requires first time, non-violent juvenile felons to appear in court, admit guilt for their offenses, and be held accountable, but also be given a non-custodial opportunity to demonstrate through good conduct and compliance with a court-monitoredtreatment and supervision program that the record of the juvenile's offense should justly be expunged. (Voter Information Guide, Primary Elec. (Mar.7, 2000) text of Prop. 21, § 2, subd. (j), p. 119.) The extent of expungementvaries from contextto context. Some expungementstatutes,like section 786 and Penal Code section 1203.4, 18 specifically allow unpaidrestitution to be converted to a civil judgment. Section 793 does not. The voters intended the DEJ program to be a “carrot- and-stick” approach to juvenile crime. (See Jn re Spencer S. (2009) 176 Cal.App.4th 1315, 1327-1328.) Reading section 793 to authorize conversion of unpaidrestitution to a civil judgment makes the carrot of expungementless rewarding than was intended. The Court of Appeal below reached a contrary conclusion by ignoring the differences between section 793 and thestatutes governing expungement in other contexts. G.C. v. Superior Court (2010) 183 Cal.App.4th 371, 378, recognized that restitution does notsurvive the dismissal of a section 602 petition in th e DEJ context and emphasized the importance of discretion in setting a realistic restitution amount which the minorcansatisfy during the deferral period. That interpretation harmonizesall the relevant provisions.It gives full effect to section 793's broad protections while allowing the restitution conversionprovisions in 730.6, 742.16, and 786 to continue to operate within their respective spheres (to adjudged minors and minors who complete formal probation or informal supervision). “A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construethem to give force and effect to all of their provisions.” (State Dept. OfPublic Health v. Superior Court (2015) 60 Cal.4th 940, 955-956.) “[T]he requirementthat courts harmonize potentially inconsistent statutes when possibleis not a license to redraft the statutes to strike a compromisethat the Legislature did not reach.” (id, at p. 956.) The Court of Appealin the presentcase essentially redrafted section 793 to contain an exception that allows unpaidrestitution to be converted to a civil judgment. Thatstrikes a compromise the drafters did not reach. This Court is respectfully urged to reverse the conversion order. 19 II. THE JUVENILE COURT ERRED BY A. Thejuvenile court violated the federal anti-alienation Federal law contains anti-alienation provisionsthat protect SSI and SSD benefits from garnishment, levy, attachment, or other legal process. (42 U.S.C. §§ 407(a), 1383(d)(1).) Notwithstanding theanti-alienation provisions, the juvenilecou ma The Court of Appeal affirmed, following Kays v. State (Ind. 2012) 963 N.E.2d 507, 510. (Slip Op., at p. 14.) For the reasons set forth below, Kays should not be followed becauseit trivializes the Supremacy Clause andis antithetical to the federal benefit programs. This Court should reverse. This issue presents a question of law, which this Court reviews de novo. (See People v. Cromer (2001) 24 Cal.4th 889, 894.) Federal Jaw protects SSD and SSI benefits from “execution,levy, attachment, garnishment, or other legal process... .” (42 U.S.C. §§ 407(a), 1383(d)(1).) If a state executes, levies, attaches, garnishes, or uses other legal process to reach SSDorSSI benefits, it violates those anti-alienation provisions and the Supremacy Clause ofthe United States Constitution. (Bennett v. Arkansas (1988) 485 U.S.395, 397-398.) The United States Supreme Court has struck down a numberofdirect attempts by states to attach SSI and SSD benefits. (See id.; Philpott v. Essex County Welfare Bd. 20 (1973) 409 USS. 413.) However,to date, the United States Supreme Court has not specifically decided whethera state court violates the anti-alienation provisionsifit treats SSI and SSD benefits as income for purposes of assessing a defendant’s ability to pay restitution. (See, ¢.g., Bennett, supra, 485 U.S.at pp. 397-398 [invalidating direct state attemptto attach Social Security benefits]; Philpott, supra, 409 U.S.at pp. 413-417 [same]; Wash. State Dep't ofSoc. & Health Servs. v. Guardianship Estate ofKeffeler (2003) 537 U.S. 371, 385 (Keffeler) {upholding state’s use of foster children’s Social Security benefits where state wasacting as a representative payee].) A numberofstate courts have considered the issue andare split onit. Most have held that doing so amounts to “other legal process”in violation ofthe anti-alienation statute. (See, e.g., State v. Eaton (Mont. 2004) 99 P.3d 661, 665-666; City ofRichland v. Wakefield (Wash. 2016) 380 P.3d 459, 465-466) But at leastone has reached the opposite conclusion. (See Kays v. State, supra, 963 N.E.2d 507, 510.) | The United States Supreme Court explored the meaning ofthe term “other legal process” in Keffeler. There, the State of Washington had been appointed by the Social Security Commissionerto act as representative payee for somefoster children’s Social Security benefits. (Keffeler, supra, 537 U.S.at pp. 375-379.) Washington,in turn, used those Social Security benefits to reimburse itself for expenditures it made for the foster children’s care and maintenance. (Ibid.) The foster children sued the state arguing that its use of the benefits amounted to “other legal process” in violation of the anti-alienation provisions.(/d. at pp. 379-381.) The United States Supreme Court disagreed.(/d. at p. 392.) Sp ie s: a e a E S O F A a g 21 The Court defined “other legal process” as “somejudicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from oneperson to anotherin order to discharge or secure dischargeofan allegedly existing or anticipated liability.” (Keffeler, supra, 537 US. at p. 385.) Washington’s useof the benefits did not involve the exercise ofjudicial or quasi-judicial authority, was not donein an effort to secure discharge of an enforceable obligation, and was completely consistent with the objectives of the Social Security program to provide care and maintenancefor the children. (Id. at pp. 386- 387.) By contrast, a court treating Social Security benefits as income when assessing an individual’s ability to pay restitution is “other legal process.”It is undeniably a judicial mechanism designed to secure discharge, to the maximum extent possible, of an enforceableliability (restitution) andit is by no meansconsistent with providing for the beneficiary’s care and maintenanceasit ultimately diverts funds from the beneficiary to a third- party victim. Nevertheless, some courts have reasoned that considering SSI or SSD benefits as income for making an ability to pay determination does not amountto other legal process because it does not specifically require a defendantto use his or her SSI or SSD benefits to pay restitution. (See Kays, supra, 963 N.E.2d at p. 510.) That analysis is flawed becauseit fails to recognize that in manycases,including this one, the defendant’s only source of income is SSI and SSD benefits. There is no other source, aside from Social Security benefits, from whichrestitution payments can be made. Bos 22 In Kays, a woman, Kays,hit her neighbor with a pipe during a dispute causing $1,496.15 in medicalbills. (963 N.E.2d at pp. 508-509.) Kays was convicted of misdemeanorbattery and ordered to pay restitution to her neighbor in the same amountas the medicalbills. (Ibid.) On appeal, she arguedthatthetrial court violated the federal anti-alienation statute by considering her monthly $674 SSD benefit to be income for restitution purposes. The Indiana Supreme Court disagreed reasoning, “ignoring a defendant’s social security income maypaint a distorted picture of her ability to pay restitution. For example, a debt-free defendant wholives with a family member andreceives room and board at no charge may very well havethe ability to pay restitution evenifher only income is from social security. This does not meanthat the State could levy against that incometo collect the restitution, but it does reflect an importantpart of the person’s total financial picture thata trial court may consider in determiningability to pay.” (Id. at pp. 510-511.) That logic is flawed becauseit fails to address whether treating social security benefits as incomefor ability to pay purposes amounts to “other legal process.”It is also inapplicable where,as here,fF | |While the defendant in Kays might have had other resources aside from social security benefits from whichrestitution could be satisfied, the record in his ase s Kaysrelied on three federal decisions. Thefirst, United States v. Lampien(7th Cir. 2001) 1 Fed.Appx. 528, 531-532, does hold that prospective social security benefits can be treated as incomeforrestitution purposes. However, the argumentin the case centered on whethersocial 23 security benefits should be treated as incomeif the defendant was age- eligible to receive them but waselecting to wait. (Id. at p. 532.) Neither the court northe parties addressed the impact of the anti-alienation provisions. The second, United States v. Smith (4th Cir. 1995) 47 F.3d 681, involveda district court ordering a defendant, Smith, to turn over his monthly pension asrestitution for a fraud he had committed. He appealed, arguing that ERISA’s anti-alienation provisions prohibited that order. The appellate court agreed and foundthat “approach .. . impermissible.” (/d. at p. 684.) The appellate court provided the following guidance: “Although a court cannot mechanically deprive Smith of his pension benefits,it can determinerestitution based on a balance of the victims’ interest in compensation and Smith’s otherfinancial resources.”(Ibid., italics added.) Kays interpreted Smith as holding that pension benefits could be considered in determining an appropriate amountofrestitution. (47 F.3d at p. 684.) But Smith holds that only “other financial resources,” and not pension benefits, should be considered whenassessing ability to pay. (/bid.) Thus,it reaches the opposite conclusion of Kays. The third case, Gleave v. Graham (W.D.N.Y. 1999) 954 F. Supp. 599, 611, concluded that veteran’s benefits could be treated as incomefor ability to pay purposes without violating anti-alienation provisions similar to those involved here. However, Gleaveis distinguishable and doesnot provide persuasive support for the proposition that SSI benefits can be used to satisfy a restitution award. The court invoked the maxim “inclusio unis est exclusion alterius” without analyzing whethertreating the benefits as income amountedto “other legal process.” (Id. at p. 611.) The court also held that even if the calculation did qualify as “other legal process”it did not violate the anti-alienation provision becauseit fell within an express 24 exception that permits alienation of benefits for claims madeby the federal government. (Ibid.) In sum, this Court should notfollow Kays. Instead, it should follow those decisions which have held the anti-alienation provisions prohibit treating Social Security benefits as income. (See Jn re S.M. (2012) 209 Cal.App.4th 21, 29-30 [considering SSI benefits as income for ability to pay purposes “would beantithetical to the purpose of the SSI program of assuring a minimal level of incomeforthe indigent blind, aged, and disabled.”]; State v. Eaton, supra, 99 P.3d 661 [finding that the anti- alienation provisions prohibited treating Social Security benefits as income for restitution purposes]; Anderson v. Cranmer (10th Cir. 2012) 697 F.3d 1314, 1315-1318 [SSI benefits should not be treated as income during bankruptcy proceedings due to the anti-alienation provisions].) City ofRichland v. Wakefield, supra, 380 P.3d 459, 465-466,is a recent decision involving facts similar to those at issue here: a trial court ordered a defendant to make monthly payments towardher legalfinancial obligations (LFOs), but the defendant’s only income was Social Security benefits. Wakefield arguedthat the order violated the federal anti-alienation provisions“becauseit legally requires her to make a paymentfrom her social security disability benefits . . . since she has no other income [and] there is no other source from which her LFOs could bepaid.” (Id.at p. 465.) The Washington Supreme Court agreed: [Clourts have rejected the viewthat the antiattachment provisions prohibit only direct attachment and garnishment, and haveinstead heldthat a court ordering LFO payments from a person whoreceivesonly social security disability payments is an “other legal process” by which to reach those protected funds. This comports with the Supreme Court’s key ruling on the definition of “other legal process,” which 25 explainedthatit is a process that involves “some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one personto another in order to discharge or secure discharge of an allegedly existing or anticipatedliability.” Wash. State Dep’t ofSoc. Health Servs. v. Guardianship Estate ofKeffeler, 537 U.S. 371, 385, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003). In this case, the court ordered Wakefield to turn over $15 from her social security disability payments each month. That meets the Supreme Court’s definition of “other legal process.” Accordingly, we hold that federal law prohibits courts from ordering defendants to pay LFOsif the person’s only source of incomeis social security disability. (Id. at pp. 465-466.)° Unlike Wakefield, the Court of Appeal below did not analyze whetherthe juvenile court’s actionP feamountedto “other legal process.” Instead, it followed Kays, which involved the distinguishable circumstance of a defendant who had non-Social Security assets to which income could be imputed. (See Slip Op., at p. 14.) The Court of Appealalso cited two federal regulations (20 C.F.R. §§ 416.635(a), 416.640(a)) andarticle I, section 28 of the California Constitution. (Slip Op., at p. 13.) The Court of Appeal reasoned that the regulations permit SSI benefits to be used to pay a portion of an individual’s monthly expenses, suggesting that restitution can be one such expense. (Slip Op., at p. 13.) However, the cited regulations allow SSI benefits to be used for completely different thingslike “costs incurred in obtaining food, shelter, clothing, 3 The respondents in Wakefield conceded error and informed the Washington Supreme Court “there is no goodfaith legal argumentto be made in opposition”as they perceivedit to be their duty to do “when an asserted legal position is no longer tenable.”(380 P.3d at p. 463.) 26 medical care and personal comfort items.” (20 C.F.R. §§ 416.635(a), 416.640(a) (2016).) Unlikerestitution, these costs are for items needed for the personal needsof the SSI recipient. They do not suggest that benefits can beusedto satisfy the recipient’s financial obligations to others. And while the article I, section 28 does makevictim restitution a matterof state constitutional importance,state action that is antithetical to federal law violates the Supremacy Clause regardless of whetherit is permitted by the state constitution. (See Bennett, supra, 485 U.S.at pp. 397- 398.) This Court should reverse the judgment of the Court of Appeal. B. The juvenile court abusedits discretion b If restitution is imposed as a condition of DEJ probation in a vandalism case, the juvenile court must impose an amount“to the extent the minoror[his family] have the ability to do so.” (§ 742.16, subd.(a).) This Court reviewsthe juvenile court’s restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) “The abuse of discretion standard is deferential, but it is not empty. It asks in substance whetherthe ruling in question falls outside the bounds of reason under the applicable law andthe relevant facts.” (/bid., internal citations and quotations omitted.) The juvenile court’s orderin this case falls outside the bounds of reason underthe applicable law and relevant facts. Under the applicable law, the juvenile court was required to reducetotalrestitution to an amount 27 J.G. wascapable of repaying during the deferral period,a. In a DEJcase,juvenile courts are not required to imposerestitution as a condition of DEJ probation. (See § 794 [restitution “may” be imposed].) But if a court imposesit in a vandalism case, the court must take into account the minor and his family’s ability to pay. (§ 742.16, subd.(a).) If there is not an ability to pay full restitution during the deferral period, a lesser amount shouldbe imposed. (See Charles S. v. Superior Court (1982) 32 Cal.3d 741, 744-745.) In Charles S., this Court found an abuseof discretion where a probation officer failed to reducerestitution to amounta minorcould repay during a six-month probationary period. (32 Cal.3d at pp. 744-745.) There, a section 602 petition wasfiled against a minor for stealing go-carts. (Id. at p. 744.) The probation officer found him to be a suitable candidate for informalprobation under section 654. (Ibid.) However, the minor and his parents did not havetheability to pay the full restitution amount during the six-month probationary period. (Ibid.) The probation officer tried lowering the restitution amount from $833 to $550, which he believed the minor could repay during the six-month probationary period, but the minorandhis family were in “dire financial straights” and could not even pay that reduced amount. (Id. at pp. 744-745.) On accountof their inability to pay restitution, probation recommendedthat informal probation be denied. (Ibid.) The juvenile court questioned whetherit had the authority to reconsider the probation officer’s recommendation, but commenced formal proceedings anyway becauseit did not believe the recommendation was an abuse of discretion. (Id. at p. 745.) This Court concluded otherwise: “the probation officer recognized Charles’ financial difficulties and reduced the total amount of restitution 28 required. The officer, however, conceded that this sum was still beyond the family’s ability to pay. He therefore abused his discretion in requiring this level of restitution.” (/d. at p. 751.) This Court reasonedthatrestitution failed to serve a valid purpose when a minorlacked the ability to payit. (Id. at pp. 750-751.) While the probation officer in Charles S. at least attempted to reduce restitution to an amountthe minor could repay during the relevant probationary period, The Court of Appeal disagreed based on twoinaccuracies, one legal and onefactual: that restitution always follows a minor into adulthood, and that the juvenile court “properly concludedthat[J.G.] could make restitution paymentsin the future.” (Slip Op., at p. 15.) As explained in argumentI, ante, restitution follows some minors into adulthood, but not those who complete DEJ. (See § 793.)Pe NNN12rsount rst be etuced to an amount the minor can repay during the deferral period because, once the minor completes DEJ,his or her slate is wiped clean asif the underlying arrest had never occurred,andrestitution ceases to exist. (See ArgumentI, ante [discussing why unpaid restitution does not survive when a minor 29 completes DEJ]; G.C., supra, 183 Cal.App.4th atp. 378 [discussing how the ability to pay requirementoperates in the DEJ context and concluding that it operated as set forth above].) Even assuming,arguendo,thatrestitution survives DEJ completion, the Court of Appealis wrongto say the juvenile court “properly concluded that[J.G.] could makerestitution paymentsin the future.”Fo Inre Brian S. (1982) 130 Cal.App.3d 523 [finding a minor hadthe ability to makefuturerestitution payments where the amountofrestitution was not “exorbitant” and there was no evidence that the minor was impoverished or cisebed)) C. The juvenile court was statutoril Section 742.16, subdivision (n) capsrestitution at $20,000 per tort of ne . P|the Court of Appeal foundthe argumentforfeited. (Slip Op., at p. 16.) The Court of Appeal reasoned,“considerations of fairness preclude us from considering minor’s claim on appea ” because the 30 “juvenile court and the prosecutor did not have an opportunity to addre ss minor’s specific claim, and facts concerning which acts of vandalism minor committed were not developed.”(Slip Op., at p. 16.) There is nothing unfair about enforcing the requirements of section 742.16. Forfeiture and the applicability of section 742.16 are legal questions, which this Court reviews de novo. (See People v. Cromer (2001) 24 Ca l.4th 889, 894.) Somechallengesto restitution orders are forfeited if they are not raised below. (See People v. Brasure (2008) 42 Cal.4th 1037, 1075.) For example, in Brasure, the defendant was convicted of murder and,at the prosecutor’s request, the court imposed $102,500 in restitution for the victim’s mother’s lost wages. While the defendant did not object to that order, he argued on appealthat the evidence offered in support of it was insufficient. (Jbid.) This Court foundthe issue forfeited: ‘“[B]y his failure to object, defendant forfeited any claim thatthe order was merely unwarranted by the evidence,as distinct from being unauthorized bystatute.” ([bid.) The claim in this caseis different than the one involved in Brasure because it involves an orderthat is both unauthorized by statute and unwarranted by the evidence. As discussed above, section 742.16, subdivision (n) authorizes a maximum of $20,000 in restitution per tort of the minor. Thus, imposition of any amount beyondthatcap is unauthorized unless it is supported by evidencethat the minor committed more than one tort that resulted in damages. 31 WENN (Cf. People v. Harvey (1979) 25 Cal.34754.) Where,as here,a restitution statute imposesa particular requirement and that requirementis not met, the evidence is insufficient and reversalis required. (See Luis M. v. Superior Court (2014) 59 Cal.4th 300.) Assuming, arguendo, that there has been a forfeiture,J.G. respectfully requests that this Court exercise its discretion to reach the merits. (See People v. Williams (1998) 17 Cal.4th 148,fn. 6 [appellate court possesses discretion to reach merits of issues that are technically forfeited].) eK OK KOK CONCLUSION For the reasonsset forth above, the juvenile court violatedI Byaffirming, the Court of Appeal perpetuated those errors. This Court should reverse the judgmentand vacate DATED:July 19, 2017 Respectfully submitted, WILLIAM C. WHALEY Attorney for Appellant 33 Certificate of Appellate Counsel Pursuantto rule 8.204(c)(1) and rule 8.360(b) of the California Rules of Court 1, William Whaley, appointed counsel for appellant, certify pursuant to rule 8.204 of the California Rules of Court, that I prepared this Brief On the Merits on behalf of myclient, and that the word countforthis briefis 7,672 words. I certify that I prepared this documentin WordPerfect and that this is the word count generated for this document. Dated: July 19, 2017 Wim William Whaley Attorney for Appellant 34 Re: The People v. J.G., Case No. S240397 DECLARATION OF ELECTRONIC SERVICE AND SERVICE BY PLACEMENTAT PLACE OF BUSINESS FOR COLLECTION AND DEPOSIT IN MAIL (Code Civ. Proc., § 1013a, subd. (3); Cal. Rules of Court, rules 8.71(f) and 8.77) I, Debra Lancaster, declare as follows: I am, and wasat the timeofthe service mentionedinthis declaration, over the age of 18 years and am not a party to this cause. My electronic service address is eservice@capcentral.org and my business address is 2150 River Plaza Dr., Ste. 300, Sacramento, CA 95833 in Sacramento County, California. . | On July 20, 2017, I served the persons and/orentities listed below by the method checked. For those marked “Served Electronically,”I transmitted a PDF version ofREDACTED VERSION Redacts Material from Sealed Record Contains material from sealed record Contains material from sealed record by TrueFiling electronic service or by e-mail to the e-mail service address(es) provided below. Transmission occurred at approximately 11:30 AM Forthose marked “Served by Mail,” I enclosed a copy ofthe documentidentified above in an envelope or envelopes, addressed as provided below,and placed the envelope(s) for collection and mailing on the date andat the place shown below,following the Central California Appellate Program’s ordinary business practices. I am readily familiar with this business’s practice of collecting and processing correspondencefor mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the U.S. Postal Service, in sealed envelope(s) with postage fully prepaid. Office of the Attorney General J.G. P.O. Box 944255 (Addressonfile) Sacramento, CA 94244 SacAWTTrueFiling@doj.ca.gov AND Third District Court of Appeal 914 Capitol Mall Sacramento, CA 95814 X__ Served Electronically ____ Served Electronically Served by Mail _X_ Served by Mail 35 Shasta County Superior Court Shasta County District Attorney 1500 Court Street 1355 West Street Redding, CA 96001 Redding, CA 96001 Served Electronically Served Electronically X__ Served by Mail X__ Served by Mail I declare underpenalty ofperjury under the laws of the State of California © that the foregoingis true and correct. Executed on July 20, 2017, at Sacramento, California. -. A fhi UL Debra Lancaster F ve 36