Opinion
G057339
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. RYAN PATRICK ALVAREZ, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18WF2354) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
The sole issue in this case is whether the trial court infringed appellant's due process rights at sentencing by ordering him to pay certain fines and fees without determining he had the ability to pay them. Finding no due process violation, we affirm the judgment.
FACTS
On October 28, 2018, two days after he was released from jail for an unrelated offense, appellant was contacted by the police at an apartment complex in Costa Mesa. During the contact, an officer found 23 grams of methamphetamine in appellant's backpack and arrested him for possessing a controlled substance for sale. At trial, appellant testified he bought the methamphetamine for $200 after he got out of jail. Being homeless, he planned to hit the hotel scene in Costa Mesa and find someone to have sex with there.
Following appellant's conviction, he admitted he suffered a prior strike conviction and served a prior prison term. However, the trial court struck those allegations and sentenced appellant to 16 months in prison. It also ordered him to pay a $30 assessment fee for court facilities (Gov. Code, § 70373) and a $40 assessment fee for court operations (Pen. Code, § 1465.8, subd. (a)(1)). In addition, the court ordered appellant to pay a restitution fine of $300, which is the statutory minimum. (Pen. Code, § 1202.4, subd. (b)(1).)
DISCUSSION
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), appellant contends his court-related assessment fees and restitution fine are unconstitutional. We disagree.
In Dueñas, the court ruled imposing such penalties on a criminal defendant without a prior determination of ability to pay violates due process. While recognizing the state has a legitimate interest in imposing revenue-raising fees on people who break the law, the court stated, "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further [any] legislative [policy], and may be counterproductive." (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Indeed, the court found the financial penalties at issue in that case did little more than punish the defendant for being poor and diminish her chances of successfully completing probation. (Id. at pp. 1166-1172.) Accordingly, Dueñas held, as a matter of first impression, trial courts must conduct an ability-to-pay hearing before imposing such penalties on criminal defendants. (Ibid.)
As a preliminary matter, we note that unlike the defendant in Dueñas, appellant did not object to the financial penalties he challenges on appeal, which raises the specter of forfeiture. (See generally People v. Scott (1994) 9 Cal.4th 331, 351-354 [to preserve a sentencing issue for appellate review the defendant must generally raise it in the trial court].) Working on the assumption Dueñas announced a new constitutional principle that could not reasonably have been foreseen prior to its issuance, many courts have refused to apply the forfeiture rule when the defendant's sentence preceded that decision. (See, e.g., People v. Santos (2019) 38 Cal.App.5th 923, 931-933; People v. Johnson (2019) 35 Cal.App.5th 134, 138; People v. Castellano (2019) 33 Cal.App.5th 485, 489.) However, appellant was sentenced on February 8, 2019, a full month after the Dueñas opinion was issued. Under these circumstances, his failure to interpose a Dueñas objection at the time of sentencing is fatal to his appeal.
Notwithstanding the forfeiture doctrine, appellant's Dueñas claim also fails on the merits. The defendant in Dueñas was a poor, homeless woman who suffered an array of "cascading consequences" because she could not afford to pay various fines and fees that were leveled against her for committing minor offenses related to her indigency. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) Not only did she lose her driver's license, she was subjected to additional jail time and the prospect of civil collection efforts, all because she lacked the means to pay off her initial financial penalties. (Id. at pp. 1161-1164.) Given that her criminal history stemmed largely from the lack of monetary resources, the Dueñas court determined there was no rational basis for subjecting her to additional financial penalties in her current case, and therefore the trial court's decision to do so violated due process.
As respondent points out, a number of courts have criticized the soundness of that ruling and questioned the very idea that due process is the appropriate measure by which the constitutionality of criminal fines and fees should be assessed. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320 [Dueñas improperly expanded the boundaries of due process]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 ["Dueñas was wrongly decided" and should have based its analysis on the Eighth Amendment's excessive fines clause instead of the due process clause]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034 (conc. opn. of Benke, J.) [same]; People v. Caceres (2019) 39 Cal.App.5th 917, 920 ["the due process analysis in Dueñas does not support its broad holding"]; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844 [same].) However, we need not weigh in on those issues, because even assuming the result in Dueñas was correct, appellant has not demonstrated the trial court violated his due process rights by failing to ascertain his ability to pay before ordering him to pay the financial penalties at issue in this case. --------
While appellant is no stranger to the criminal justice system, there is nothing in the record suggesting his recidivism was attributable to any financial penalties he may have been ordered to pay in his prior cases. That is a key point of distinction from Dueñas, in which the financial penalties triggered by the defendant's initial crimes had severe consequences on her daily life and created the conditions that contributed to her current offense. (See People v. Caceres, supra, 39 Cal.App.5th at pp. 923, 928 [distinguishing Dueñas on the basis it involved the extreme situation where the defendant's current offense was driven by, and likely to contribute to, her poverty so that she was trapped in an endless cycle of criminal activity and escalating debt]; People v. Kopp, supra, 38 Cal.App.5th at p. 95 [same].)
Moreover, it does not appear appellant is in the same dire predicament as the defendant in Dueñas. Granted, he was homeless when he was released from jail two days before the present case arose. However, according to the probation report, appellant was 40 years old and in good health at that time. Having attended college for two years, he was also certified as a Microsoft service engineer and had held various jobs in the financial industry. As recently as 2013, he was earning $120,000 a year as a company manager, and before that he was bringing home $7,000 a month working for an internet marketing firm. While the record shows appellant's employment prospects have been derailed by a serious drug problem, and he had very little money at the time of his arrest, he clearly has the potential to pay the $370 in financial penalties at issue in this case.
For all these reasons, we reject appellant's sentencing claim. The trial court did not violate his due process rights by imposing the subject financial penalties without conducting an ability-to-pay hearing.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.