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holding proper framework for analyzing ability to pay is Eighth Amendment's prohibition against excessive fines, rejecting Dueñas's due process analysis
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F073846
09-13-2019
The PEOPLE, Plaintiff and Respondent, v. Luis Arrellanes AVILES, Defendant and Appellant.
POOCHIGIAN, Acting P.J. INTRODUCTION
Appellant/defendant Luis Arrellanes Aviles led officers on a foot pursuit through houses, garages, and backyards in a residential neighborhood. An officer found defendant hiding inside a bedroom closet of a residence and ordered him to surrender; the officer did not realize that defendant was in possession of a firearm. Instead of complying with the officer's orders to surrender, defendant fired multiple gunshots and wounded two officers. One officer was shot four times, and the second officer was shot once. The other officers at the scene returned fire, and defendant finally surrendered after being wounded.
Defendant was charged and convicted of counts 1 and 2, the attempted premeditated murders of the two police officers (Pen. Code, §§ 664/187, subd. (a)) with firearm enhancements (§ 12022.53, subd. (d)); and count 3, possession of a firearm by a felon (§ 29800, subd. (a)(1)). Defendant was sentenced to an aggregate term of 80 years to life in state prison, plus a consecutive term of two years for his plea in a separate case for assault with a deadly weapon – a cutting instrument – by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1)). We affirm defendant's convictions in counts 1, 2, and 3 and the jury's findings on the firearm enhancements.
All further statutory citations are to the Penal Code unless otherwise indicated.
In the published portion of this opinion, we address defendant's reliance on People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 (Dueñas ) to argue that the trial court violated his constitutional rights to due process and equal protection by ordering him to pay certain fines, fees, and assessments without finding he had the ability to pay those amounts. We find Dueñas was wrongly decided, and that a constitutional challenge to the imposition of fines, fees, and assessments should be based on the Excessive Fines Clause of the Eighth Amendment instead of the due process rationale utilized in Dueñas.
We will remand the matter for the trial court to address specific sentencing issues as set forth in the unpublished portion of this opinion, and otherwise affirm defendant's convictions, the firearm enhancements, and the fines, fees, and assessments imposed.
See footnote *, ante .
THE PROSECUTION'S GANG EVIDENCE
See footnote *, ante .
See footnote *, ante .
See footnote *, ante .
See footnote *, ante .
DISCUSSION
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction, Part VI of the Discussion, the Disposition, and the Concurring Opinion are certified for publication.
See footnote *, ante .
VI. The Court's Imposition of Restitution Fines, Fees, and Assessments
Defendant argues the court violated his constitutional rights to due process and equal protection because it ordered him to pay restitution fines, fees, and assessments without conducting a hearing to determine whether he had the ability to pay those amounts. Defendant did not object to the court's orders but argues he has not forfeited review because any objection would have been futile under the statutory and case law at that time, and the issue raises a pure legal question. Defendant requests this court remand the matter for the trial court to conduct a hearing on his ability to pay so that it can either strike or stay the amounts previously imposed.
Defendant's due process arguments are based on People v. Dueñas, supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268, that was decided after his sentencing hearing was held and while this appeal was pending. We disagree with Dueñas's due process analysis and find a defendant's constitutional challenge to the court's imposition of such amounts should be raised under the Eighth Amendment to the United States Constitution to determine whether the fines, fees, and assessments are "grossly disproportional to the gravity of a defendant's offense" and thus "excessive." ( United States v. Bajakajian (1998) 524 U.S. 321, 334, 118 S.Ct. 2028, 141 L.Ed.2d 314 (Bajakajian ), superseded on other grounds as explained in U.S. v. Jose (1st Cir.P.R. 2007) 499 F.3d 105, 110.)
We also find that, to the extent defendant attempts to rely on Dueñas , he forfeited review of his ability to pay argument by failing to object when the sentencing court imposed restitution fines above the statutory minimum, and any error is harmless beyond a reasonable doubt because the record shows he has the ability to pay the amounts ordered in this case.
A. The Sentencing Hearing
We begin with the sentencing hearing that was held in May 2016, before Dueñas was decided.
The court found multiple aggravating factors, no mitigating factors, and sentenced defendant to an aggregate term of 80 years to life for two counts of attempted murder with firearm enhancements, and one count of possession of a firearm by a felon. The court followed the probation report's recommendation and imposed the maximum statutory restitution fine of $10,000 (§ 1202.4, subd. (b)) , and imposed and stayed the parole revocation fine of $10,000 (§ 1202.45). The court also imposed the court operations assessment of $120 (§ 1465.8) and the court facilities funding assessment of $90 ( Gov. Code, § 70373 ).
Section 1202.4, subdivision (b) mandates the court to impose a "separate and additional restitution fine" in "every case where a person is convicted of a crime," unless the court "finds compelling and extraordinary reasons for not doing so and states those reasons on the record." Upon conviction of a felony, the minimum fine is $300 and the maximum fine is $10,000. (§ 1202.4, subd. (b)(1).) "In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (1202.4, subd. (b)(2).)
"The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph ( 1) of subdivision (b).... " (§ 1202.4, subd. (c), italics added.)
If the court sets the restitution fine in excess of the minimum amount, it shall consider "any relevant factors, including, but not limited to, the defendant's inability to pay , the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime..... Consideration of a defendant's inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required." (§ 1202.4, subd. (d), italics added.)
Section 1465.8, the court operations assessment, requires the court to impose an assessment of $40 on "every conviction for a criminal offense," with certain exceptions, "[t]o assist in funding court operations." (§ 1465.8, subd. (a)(1).) It does not refer to a defendant's ability to pay.
Government Code section 70373, the court facilities funding assessment, requires the court to impose an assessment on every criminal conviction, with certain exceptions, "[t]o ensure and maintain adequate funding for court facilities," in the amount of $30 for each misdemeanor or felony, and $35 for each infraction. (Gov. Code, § 70373, subd. (a)(1).) It does not refer to the defendant's ability to pay.
The court also sentenced defendant to a consecutive lower term of two years for assault with a deadly weapon; the conviction was based on defendant's assault on his cellmate during the pendency of his trial. The court again followed the probation report's recommendation and imposed a restitution fine of $600, an amount above the statutory minimum, and imposed and stayed the parole revocation fine of $600. The court also imposed a $40 court operations assessment (§ 1465.8); and a $30 court facilities funding assessment ( Gov. Code, § 70373 ).
Defendant was thus ordered to pay a total of $10,600 in restitution fines, $160 in court operations assessments, and $120 in court facilities funding assessments. The court did not order any victim restitution. Defense counsel objected to the court's findings on aggravating and mitigating factors but did not object to the court's imposition of any of the fines, fees, and assessments.
The court stated the public defender's office had requested reimbursement of attorney fees in the amount of $50,000. The court denied the request because "[i]n light of the life sentence that [defendant] has been sentenced to, I'm gonna [sic ] find no ability [to pay]."
As we will discuss below, section 987.8, subdivision authorizes the court to order a defendant to repay the courts of appointed counsel upon notice and a hearing, but presumes a defendant sentenced to state prison does not have the ability to reimburse these costs absent unusual circumstances. (People v. Rodriguez (2019) 34 Cal.App.5th 641, 645–646, 246 Cal.Rptr.3d 392.)
B. Dueñas, Castellano, and Frandsen
In Dueñas , supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268, an impoverished defendant had been repeatedly convicted of driving with a suspended license. She lacked the financial means to pay multiple fees imposed for her previous citations and clear her record to obtain a valid license. She remained liable for court fees and the debts were sent to collection agencies. ( Id. at pp. 1160–1161, 242 Cal.Rptr.3d 268.) The court subsequently placed the defendant on probation on condition of serving 30 days and paying a $300 fine and offered to convert the fine into an additional nine days in jail. Her attorney agreed because she did not have the ability to pay. The court also ordered her to pay a restitution fine of $150, the statutory minimum for a misdemeanor; $30 for the court facilities assessment ( Gov. Code, § 70373 ); and $40 for the court operations assessment (§ 1465.8). It did not impose victim restitution. ( Dueñas , supra , 30 Cal.App.5th at pp. 1162, 1169, 242 Cal.Rptr.3d 268.)
After the court imposed the fees and fines, it granted the defendant's motion for a hearing on her ability to pay the attorney fees she had previously been assessed with under section 987.8, subdivision (b), and also to challenge the other fines and fees. ( Dueñas , supra , 30 Cal.App.5th at pp. 1162–1163, 242 Cal.Rptr.3d 268.) The defendant introduced uncontested evidence about her indigence. The court determined she lacked the ability to pay the previously-ordered attorney fees and waived them. The court found the assessments imposed under section 1465.8 and Government Code section 70373 were mandatory regardless of her inability to pay. The court further found she failed to show the " ‘compelling and extraordinary reasons’ " required by section 1202.4, subdivision (c) to justify waiving the minimum $150 restitution fine. ( Dueñas , supra , at p. 1163, 242 Cal.Rptr.3d 268.) The court rejected defendant's argument that due process and equal protection required it to determine her ability to pay the fees and fines or strike the orders. (Ibid. )
Dueñas held the trial court's imposition of these amounts without finding the defendant had the ability to pay, and "using the criminal process to collect a fine she cannot pay is unconstitutional" because "the only reason [the defendant] cannot pay the fine and fees is her poverty." ( Dueñas , supra , 30 Cal.App.5th at p. 1160, 242 Cal.Rptr.3d 268.)
"We conclude that due process of law requires the
trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under ... section
1465.8 and Government Code section 70373. We also hold that although ... section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." ( Id. at p. 1164, 242 Cal.Rptr.3d 268, italics added.)
In reviewing the fees and assessments, Dueñas found that section 1465.8 and Government Code section 70373 were not enacted with the intent to be punitive in nature, but they had been "parts of more comprehensive legislation intended to raise funds for California courts." ( Dueñas , supra , 30 Cal.App.5th at p. 1165, 242 Cal.Rptr.3d 268.) The Legislature had provided "fee waivers for indigent litigants at the trial and appellate court levels that excuse them from paying fees for the first pleading or other paper, and other court fees and costs, including assessments for certain court investigations," and listed several statutory examples. These waivers lessened "the disproportionate burden that these fundraising fees present to indigent litigants in the civil context." ( Id. at pp. 1165–1166, 242 Cal.Rptr.3d 268.) By comparison, the Legislature failed to enact "a corresponding safeguard for assessments attached to a criminal conviction," since both section 1465.8 and Government Code section 70373 were silent as to the consideration of a defendant's ability to pay in imposing the assessments. ( Dueñas , at p. 1166, 242 Cal.Rptr.3d 268.)
Dueñas held that, in the absence of such waivers and safeguards, the probationer faced significant consequences "if she blamelessly fails to pay her assessments," whether those amounts are "considered as a criminal penalty or as a civil judgment." ( Dueñas , supra , 30 Cal.App.5th at p. 1168, 242 Cal.Rptr.3d 268.) "These additional, potentially devastating consequences suffered only by indigent persons in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Ibid. , italics added.)
Dueñas reversed the two assessments because imposing them "upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution. [Citations.] These fees, assessed as part of a larger statutory scheme to raise revenue to fund court operations, should be treated no differently than their civil counterparts enacted in the same legislation and imposed only on those with the means to pay them. [Citation.]" ( Dueñas , supra , 30 Cal.App.5th at pp. 1168–1169, 242 Cal.Rptr.3d 268, fns. omitted.)
Dueñas relied on Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, In re Antazo (1970) 3 Cal.3d 100, 89 Cal.Rptr. 255, 473 P.2d 999, and Bearden v. Georgia (1983) 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 to reach these conclusions, and rejected the People's argument that these cases were distinguishable because the defendants therein faced imprisonment only on the basis on their poverty, while the defendant in Dueñas was subject to a civil judgment she could not satisfy. (Dueñas , supra , 30 Cal.App.5th at pp. 1167–1168, 242 Cal.Rptr.3d 268.)
As for the restitution fine, Dueñas recognized that it was intended to be additional punishment, but it posed constitutional concerns where the fines are imposed as conditions of probation. Any unpaid restitution fines remaining at the end of probation are enforceable as a civil judgment, and the debt may be enforced by litigation or offset against any amounted owed to the defendant by a state agency. ( Dueñas , supra , 30 Cal.App.5th at pp. 1169–1170, 242 Cal.Rptr.3d 268.) "[A]lthough ... section 1202.4 permits the court to waive imposition of a restitution fine if it finds ‘compelling and extraordinary reasons’ why the fine should not be imposed, the statute expressly states that inability to pay the fine does not qualify" when the minimum fine is imposed. ( Id. at p. 1170 and fn. 6, 242 Cal.Rptr.3d 268.) As a result, "the criminal justice system punishes indigent defendants in a way that it does not punish wealthy defendants," who may have the charges dismissed after the successful completion of probation. ( Id. at p. 1170, 242 Cal.Rptr.3d 268 ) "But if a probationer cannot afford the mandatory restitution fine, through no fault of his or her own he or she is categorically barred from earning the right to have his or her charges dropped and to relief from the penalties and disabilities of the offense for which he or she has been on probation, no matter how completely he or she complies with every other condition of his or her probation." (Ibid. )
"The statutory scheme thus results in a limitation of rights to those who are unable to pay. The heart of the due process inquiry is whether it is ‘fundamentally unfair’ to use the criminal justice system to impose punitive burdens on probationers who have ‘made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of [their] own ....’ [Citation.]" ( Id. at p. 1171, 242 Cal.Rptr.3d 268.)
Dueñas remanded the matter to the superior court to stay execution of the restitution fine "until and unless the People demonstrate that the defendant has the ability to pay the fine." ( Dueñas , supra , 30 Cal.App.5th at pp. 1172–1173, 242 Cal.Rptr.3d 268, italics added.)
In People v. Castellano (2019) 33 Cal.App.5th 485, 245 Cal.Rptr.3d 138 (Castellano ), the defendant was convicted of possession of cocaine base for sale with prior conviction enhancements and sentenced to six years, split between three years in local custody and three years on mandatory supervised release. The court ordered him to pay the statutory minimum $300 restitution fine (§ 1202.4, subd. (b)) and other fees and assessments. The sentencing hearing was held before Dueñas was decided. The defendant did not object to any of the amounts imposed by the court. On appeal, after Dueñas was decided, the defendant argued the fines and fees similarly violated his due process rights, and the appellate court should strike the trial court's orders because it failed to find he had the ability to pay. ( Castellano , at pp. 487, 488, 245 Cal.Rptr.3d 138.)
Castellano held the defendant did not forfeit appellate review of his ability to pay claim, even though he did not object at the sentencing hearing, because Dueñas had not yet been decided, "no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant's ability to pay," and Dueñas was based on "a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial." ( Castellano , supra , 33 Cal.App.5th at p. 489, 245 Cal.Rptr.3d 138.) In addition, the relevant statutory authority did not allow the sentencing court to consider a defendant's ability to pay since it imposed the minimum restitution fine. (Ibid. )
As to the merits, Castellano rejected the defendant's assertion that Dueñas required the summary reversal of the fees and fines that had been imposed at the sentencing hearing. Castellano distinguished Dueñas since the probationer in that case requested a hearing and presented credible evidence she lacked the ability to pay. Castellano further held that Dueñas required "a defendant ... in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." ( Castellano , supra , 33 Cal.App.5th at p. 490, 245 Cal.Rptr.3d 138.)
However, Castellano concluded that since the defendant's conviction and sentence were not yet final, Dueñas applied to his case, and the matter should be remanded to the trial court "so that he may request a hearing and present evidence demonstrating his inability to pay the fines, fees and assessments imposed by the trial court." ( Castellano , supra , 33 Cal.App.5th at p. 491, 245 Cal.Rptr.3d 138.)
"If he demonstrates the inability to pay, the trial court must strike the court facilities assessment ( Gov. Code, § 70373 ), the court operations assessment ( [ ] § 1465.8) and the criminal laboratory analysis fee ( Health & Saf. Code, § 11372.5 ); and it must stay the execution of the restitution fine. If [he] fails to demonstrate his inability to pay these amounts, the fines, fees and assessments imposed may be enforced." (Ibid. )
In People v. Frandsen (2019) 33 Cal.App.5th 1126, 245 Cal.Rptr.3d 658 (Frandsen ), the court sentenced defendant to prison and imposed the statutory maximum restitution fine of $10,000, in addition to other fees and assessments. The sentencing hearing was held before Dueñas was decided, and the defendant did not object to the fees and fines. ( Frandsen , at pp. 1139, 1152–1153, 245 Cal.Rptr.3d 658.) Frandsen held the defendant forfeited his appellate arguments based on Dueñas about his ability to pay the fines and fees because he failed to object at the sentencing hearing to the restitution fine that was imposed above the statutory minimum, he was raising a question of fact and not of law, and there was nothing in the record to indicate that he would have been foreclosed from making the same objections as the probationer in Dueñas. ( Frandsen , supra , 33 Cal.App.5th at pp. 1153–1154, 245 Cal.Rptr.3d 658.)
Frandsen also "fundamentally" disagreed with Castellano on the assertion that Dueñas was " ‘a dramatic and unforeseen change in the law,’ " since the defendant in Dueñas "foresaw it" by raising the ability to pay issue based on existing cases. ( Frandsen , supra , 33 Cal.App.5th at p. 1154, 245 Cal.Rptr.3d 658.) "Dueñas applied law that was old, not new." ( Id. at p. 1155, 245 Cal.Rptr.3d 658.)
C. Defendant's Contentions
In this appeal, defendant acknowledges that he did not object to the court's imposition of the fines, fees, and assessments at the sentencing hearing, or claim that he lacked the ability to pay those amounts. However, defendant asserts that he is in the same position as the defendant in Castellano , who also failed to object but still obtained relief on the same issue. Defendant asserts that he did not forfeit appellate review since he could not have anticipated the holding in Dueñas. Defendant argues that under Castellano , the instant matter must be remanded to the trial court so that he can raise a constitutional objection based on Dueñas , and the court can determine whether he has the ability to pay the fines, fees, and assessments.
Defendant's argument is based on the supposition that Dueñas was correctly decided. We disagree and find that it is more appropriate to rely upon the Eighth Amendment to raise a constitutional challenge to the court's imposition of statutorily mandated fines, fees and assessments.
As noted in Castellano , a bill is currently pending in the Legislature that "proposes the following factors be considered in determining a defendant's ability to pay: the defendant's present financial circumstances; whether the defendant is receiving any type of government benefits, including means-tested benefits; whether the defendant was represented by court-appointed counsel; the defendant's reasonably discernible future financial circumstances; the likelihood the defendant will be able to obtain employment within a six-month period from the date of the court's consideration of the issue; the amount of victim restitution ordered, if any; and any other factor that may bear upon the defendant's inability to pay. (Assem. Bill No. 927 (2019–2020 Reg. Sess.) § 1.)" (People v. Castellano , supra , 33 Cal.App.5th at p. 490, fn. 5, 245 Cal.Rptr.3d 138.) This bill has not yet been enacted. In any event, we are compelled to address the issues raised by the defendant.
We find that Dueñas was wrongly decided and agree with Justice Benke's concurring opinion in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 247 Cal.Rptr.3d 850, petition for review pending, petition filed on July 15, 2019, that Dueñas's analysis is "fundamentally flawed in that general ‘fairness’ grounds of due process and/or equal protection principles do not afford a defendant a preassessment ability-to-pay hearing before a trial court imposes fines and fees on him or her." ( Gutierrez , supra , at p. 1038, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.); see also People v. Kopp (2019) 38 Cal.App.5th 47, 81–83, 250 Cal.Rptr.3d 852 (conc. opn. of Benke, J.) and People v. Santos (Aug. 15, 2019, H045518) 38 Cal.App.5th 923, 934–40, 251 Cal.Rptr.3d 483, 2019 WL 3821793, *7–11, 2019 Cal.App. LEXIS 759, 18–27 (dis. opn. of Elia, J.).)
The majority opinion in Gutierrez did not address whether Dueñas was correctly decided. Instead, it found the defendant forfeited appellate review by failing to raise an ability to pay objection under existing statutory law because the court imposed the maximum restitution fine. Since the defendant chose not to object to the $10,000 restitution fine, "he surely would not complain on similar grounds regarding an additional $1,300 in fees." (Gutierrez , supra , 35 Cal.App.5th at p. 1033, 247 Cal.Rptr.3d 850 (maj. opn. of Haller, J.).)
"[I]n reaching its conclusions, Dueñas by judicial fiat inserted language into statutes that did not exist. That is, I note the adjective ‘present’ used by the Dueñas court in its ability-to-pay analysis is nowhere to be found in ... sections 1202.4 and 1465.8, or in Government Code section 70373. [Citations.]
"Perhaps more egregiously, Dueñas in its analysis completely disregarded unambiguous language in subdivision (c) of section 1202.4 stating that inability to pay cannot be considered when only the statutory minimum is imposed, as was the case there. Moreover, by also adding the word ‘present’ to the ability-to-pay analysis with respect to the restitution fine, Dueñas ignored section 1202.4, subdivision (d), which says the exact opposite: ‘Consideration of a defendant's inability to pay may include his or her future earning capacity. ’ (Italics added.) A court lacks the power to rewrite a statute either so as to make it conform to a presumed intention that is not stated, or to ignore a statute's plain and unambiguous language. [Citation.]" ( Gutierrez , supra , 35 Cal.App.5th at p. 1038, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).)
Dueñas's due process and equal protection analysis was improperly based on a series of cases that addressed the concern that "that due process and equal protection guaranteed an indigent criminal defendant a free transcript of trial proceedings in order to provide that defendant with access to a court of review, where he would receive an adequate and effective examination of his criminal conviction. [Citation.]" ( Gutierrez , supra , 35 Cal.App.5th at p. 1039, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).) Dueñas 's reliance on certain statutes was also incorrect because "[t]hese statutes instead ensure that all people, without regard to economic status, have equal access to our justice system." ( Gutierrez , supra , at p. 1039, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).) The fine and assessments imposed on the probationer in Dueñas did not raise "an issue of access to our courts or justice system" or satisfy "the traditional due process definition of a taking of life, liberty or property." ( Gutierrez , supra , p. 1039, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).)
"[There is] no general due process and equal protection authority which requires a court to conduct a preassessment present ability-to-pay hearing before imposing any fine or fee on a defendant, as Dueñas seems to conclude. On a practical note, it takes little imagination to envision the potential expansion of the holding of Dueñas to a multitude of other fines or fees that were not the subject of that case, or the instant case. One such possible fine is victim restitution, which is encompassed in subdivision (f) of section 1202.4 – one of the same statutes at issue in Dueñas. Although that subdivision expressly requires a court to order ‘full restitution’ to the victim, should the constitutional basis of Dueñas stand, any restitution hearing might require a finding of present ability to pay victim restitution." (Ibid. )
Dueñas thus incorrectly relied upon a due process analysis to examine the probationer's constitutional objections to the court's imposition of the fines, fees, and assessments in that case. We further find Castellano incorrectly extended Dueñas 's due process analysis to cases where a defendant is sentenced to prison and ordered to pay such amounts.
D. The Eighth Amendment
While we reject Dueñas's due process analysis, a defendant who raises a constitutional objection at a sentencing hearing, based on his or her inability to pay statutorily mandated fines, fees, and assessments, is not without a remedy. Such a challenge should be based instead on the prohibition against "excessive fines" contained in the Eighth Amendment to the United States Constitution, as recently applied to state action in Timbs v. Indiana (2019) ––– U.S. ––––, , 203 L.Ed.2d 11.)
The Eighth Amendment to the United States Constitution states: "Excessive bail shall not be required, nor excessive fines imposed , nor cruel and unusual punishments inflicted." (Italics added.) Article I, section 17 of the California Constitution states: "Cruel or unusual punishment may not be inflicted or excessive fines imposed. " (Italics added.)
"Like the Eighth Amendment's proscriptions of ‘cruel and unusual punishment’ and ‘[e]xcessive bail,’ the protection against excessive fines guards against abuses of government's punitive or criminal-law-enforcement authority. This safeguard, we hold, is ‘fundamental to our scheme of ordered liberty,’ with ‘dee[p] root[s] in [our] history and tradition.’ [Citation.] The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment." ( Timbs v. Indiana, supra , 139 S.Ct. at pp. 686–687, italics added.) An Eighth Amendment analysis is more appropriate because such an analysis "allows for consistent and fair review of fines and fees imposed on individuals while they are focused both legally and factually in the trial court, with the appeal process remaining available for review." ( Gutierrez , supra , 35 Cal.App.5th at p. 1040, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).)
"The Eighth Amendment prohibits the imposition of excessive fines. The word ‘fine,’ as used in that provision, has been interpreted to be ‘ "a payment to a sovereign as punishment for some offense." ’ [Citation.]" ( Gutierrez , supra , 35 Cal.App.5th at p. 1040, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in Bajakajian, supra , 524 U.S. 321, 118 S.Ct. 2028. ( People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728, 36 Cal.Rptr.3d 814, 124 P.3d 408.)
"The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." ( Bajakajian, supra , 524 U.S. at p. 334, 118 S.Ct. 2028.)
The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: "(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]" ( People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra , 37 Cal.4th at p. 728, 36 Cal.Rptr.3d 814, 124 P.3d 408 ; Gutierrez , supra , 35 Cal.App.5th at p. 1040, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. ( Bajakajian, supra , 524 U.S. at pp. 337–338, 118 S.Ct. 2028.)
In People v. Urbano (2005) 128 Cal.App.4th 396, 26 Cal.Rptr.3d 871, the defendant was convicted of assault by means likely to produce great bodily injury. ( Id. at p. 400, 26 Cal.Rptr.3d 871.) This court relied on Bajakajian to reject the defendant's claim that a $3,800 restitution fine (§ 1202.4, subd. (b)(1)) was excessive under the state and federal Constitutions. "The record of a completely unprovoked attack by a two-striker causing great bodily injury solely to promote a criminal street gang amply justifies the amount at issue." ( People v. Urbano , supra , at p. 406, 26 Cal.Rptr.3d 871.)
In Gutierrez , the defendant was convicted of nine counts of committing lewd and lascivious acts upon a child, along with prior strike convictions, and sentenced to 35 years plus 100 years to life. ( Gutierrez, supra , 35 Cal.App.5th at pp. 1028–1029, 247 Cal.Rptr.3d 850 (maj. opn. of Haller, J.).) The concurring opinion, having rejected Dueñas's due process analysis, found a constitutional objection to such amounts should be based on the Eighth Amendment. It also found that based on defendant's claimed inability to pay the $10,000 restitution fine, the $360 court security fee (§ 1465.8), the $270 fee under Government Code section 70373, and the $154 criminal justice administration fee under Government Code section 29550.1, an Eighth Amendment challenge would have been meritless because those amounts were not " ‘excessive’ " in violation of either the federal or state Constitutions based on the proportionality factors in Bajakajian. ( Gutierrez , supra , 35 Cal.App.5th p. 1040, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).)
1. Application of Eighth Amendment to Fees and Assessments
We find an Eighth Amendment analysis is appropriate to address a defendant's constitutional challenge to both restitution fines as well as other fees and assessments imposed after conviction.
"The Excessive Fines Clause ... ‘limits the government's power to extract payments, whether in cash or in kind, "as punishment for some offense." ’ [Citation.]" ( Bajakajian, supra , 524 U.S. at p. 328, 118 S.Ct. 2028.) Restitution fines imposed under section 1202.4, subdivision (b) are recognized as criminal penalties and a form of punishment. ( People v. Hanson (2000) 23 Cal.4th 355, 361–363, 97 Cal.Rptr.2d 58, 1 P.3d 650 ; People v. Harvest (2000) 84 Cal.App.4th 641, 647, 101 Cal.Rptr.2d 135 (Harvest ).)
In contrast to restitution fines, victim restitution imposed under section 1202.4, subdivision (e) is not defined as punishment since it is paid to the victim as compensation for loss and not to " ‘a sovereign as punishment for some offense.’ " (Harvest , supra , 84 Cal.App.4th at pp. 647, 650, 101 Cal.Rptr.2d 135 ; Gutierrez , supra , 35 Cal.App.5th at p. 1040, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).) The concurring opinion in Gutierrez cautioned that Dueñas's due process analysis could be extended to victim restitution orders. (Gutierrez, supra , at p. 1039, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).) Indeed, in U.S. v. Dubose (9th Cir.1998) 146 F.3d 1141, 1144–1145, the court relied on Bajakajian and held that under the federal restitution law, victim restitution awards are punishment and may be subject to the excessive fines clause if they are grossly disproportional to the criminal offense. However, the court further held proportionality between the defendant's illegal activities and the victim's loss is inherent in a victim restitution order. (U.S. v. Dubose , at p. 1144–1145.)
Dueñas recognized the court facilities and court operations assessments were not enacted to be "punitive in nature," but instead were part "of more comprehensive legislation intended to raise funds for California courts." ( Dueñas, supra , 30 Cal.App.5th at pp. 1164–1165, 242 Cal.Rptr.3d 268.) As explained above, however, Dueñas also found a defendant could raise a constitutional challenge to the imposition of fees and assessments because the "potentially devastating consequences" suffered by indigent persons unable to pay those amounts "in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." ( Id. at p. 1168, 242 Cal.Rptr.3d 268, italics added.) Dueñas essentially held that fees and assessments, like restitution fines, constitute "punishment" for purposes of a constitutional challenge. (Ibid. )
2. Analysis Under the Eighth Amendment
We may review de novo whether a fine is excessive under the Eighth Amendment. ( Bajakajian, supra , 524 U.S. at p. 336, fn. 10, 118 S.Ct. 2028.)
We find the $10,000 restitution fine, the court operations assessment of $120, and the court facilities funding assessment of $90 are not grossly disproportionate to defendant's convictions for attempting to murder the two officers and possession of a firearm by a felon. Defendant repeatedly refused to stop when the officers lawfully ordered him to. He entered private residences without permission, concealed himself inside rooms and within garages, and evaded detection until Officer Collins found him in a bedroom closet. Collins holstered his service weapon and directed defendant to step outside. Instead of doing so, defendant fired multiple gunshots at point-blank range at the officers who tried to take him into custody. He shot Collins in the shoulder, fired additional shots when Officer Ferreira tried to assist Collins, shot Ferreira in the shoulder, kept firing and hit Collins in the chest. Collins was shot four times and Ferreira was shot once. Defendant continued to fire his weapon until additional officers arrived in the small bedroom, returned fire, and wounded and disarmed him.
We similarly find the $600 restitution fine, the $40 court operations assessment, and the $30 court facilities funding assessment imposed for his assault conviction are not grossly disproportionate under the relevant factors. According to the victim, who was defendant's cellmate, defendant became intoxicated after drinking "prison" alcohol and stabbed him numerous times without provocation.
The aggregate amounts of fines, fees, and assessments imposed in defendant's two cases are not grossly disproportionate to his level of culpability and the harm he caused, and thus not excessive under the Eighth Amendment. E. Forfeiture
If the probationer in Dueñas had raised a constitutional challenge based on the Eighth Amendment, it would have surely led to the trial court's conclusion that the fines and fees imposed in that case were grossly disproportionate and excessive given the undisputed facts about the probationer's dire financial circumstances and minimal criminal culpability. (Bajakajian, supra , 524 U.S. at p. 334, 118 S.Ct. 2028 ; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. , supra , 37 Cal.4th at p. 728, 36 Cal.Rptr.3d 814, 124 P.3d 408.)
Even if Dueñas applied to this case, defendant forfeited his ability to pay challenge because he failed to object to the amounts imposed at the sentencing hearing. ( People v. Frandsen , supra , 33 Cal.App.5th at p. 1153, 245 Cal.Rptr.3d 658 ; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464, 246 Cal.Rptr.3d 177.)
1. Futility
Defendant asserts he did not forfeit review because any objection at the sentencing hearing would have been futile based on case law and statutory authority that existed at that time; and the Dueñas ruling was unforeseeable.
"Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.]" ( People v. Welch (1993) 5 Cal.4th 228, 237–238, 19 Cal.Rptr.2d 520, 851 P.2d 802.) While Dueñas had not been decided at the time of defendant's sentencing hearing, defendant's futility argument is meritless because "[s]ection 1202.4 expressly contemplates an objection based on inability to pay." ( Frandsen , supra , 33 Cal.App.5th at p. 1153, 245 Cal.Rptr.3d 658.) In both of defendant's cases, the court imposed restitution fines above the statutory minimum: $600 for his assault conviction, and $10,000 for his attempted murder and felon in possession convictions. "[T]he trial court imposed the maximum restitution fine. [The defendant] was thus obligated to object to the amount of the fine and demonstrate his inability to pay anything more than the $300 minimum. Such an objection would not have been futile under governing law at the time of his sentencing hearing. [Citations.]" ( Frandsen, supra , 33 Cal.App.5th at p. 1154, 245 Cal.Rptr.3d 658.)
The California Supreme Court has repeatedly held that when a court imposes fees and/or fines pursuant to statutes that specifically include ability to pay findings, the defendant must raise an objection at the sentencing hearing or forfeit the appellate claim that the court failed to make such a finding or there was no evidence of the defendant's ability to pay the imposed amounts. (See People v. Gamache (2010) 48 Cal.4th 347, 409, 106 Cal.Rptr.3d 771, 227 P.3d 342 ; People v. Case (2018) 5 Cal.5th 1, 52–53, 233 Cal.Rptr.3d 439, 418 P.3d 360 ; People v. Avila (2009) 46 Cal.4th 680, 728–729, 94 Cal.Rptr.3d 699, 208 P.3d 634 ; People v. Nelson (2011) 51 Cal.4th 198, 227, 120 Cal.Rptr.3d 406, 246 P.3d 301 ; People v. McCullough (2013) 56 Cal.4th 589, 590, 598–599, 155 Cal.Rptr.3d 365, 298 P.3d 860 ; People v. Trujillo (2015) 60 Cal.4th 850, 858–861, 182 Cal.Rptr.3d 143, 340 P.3d 371.)
Despite having the statutory ability to object, defendant did not raise an ability to pay objection to the court's imposition of two restitution fines that were well above the statutory minimum amounts, and consistent with the amounts recommended in the probation report. "Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed. [Citations.]" ( Frandsen, supra , 33 Cal.App.5th at p. 1154, 245 Cal.Rptr.3d 658.)
As in Frandsen , we also reject the argument that any objections to the assessments imposed under section 1465.8 and Government Code section 70373 would have been futile. "Although both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [the defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [The defendant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [the defendant] was obligated to create a record showing his inability to pay the maximum restitution fine, which would have served to also address his ability to pay the assessments. Given his failure to object to [total restitution fines of $10,600] based on inability to pay, [defendant] has not shown a basis to vacate" the aggregate assessments imposed in this case of $280. ( Frandsen , supra , 33 Cal.App.5th at p. 1154, 245 Cal.Rptr.3d 658.)
2. Question of Law
Another exception to the rule of forfeiture is when a defendant raises constitutional claims on appeal that "involve pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. [Citations.]" ( People v. Welch, supra , 5 Cal.4th at p. 235, 19 Cal.Rptr.2d 520, 851 P.2d 802.)
Defendant has not raised a pure question of law based on undisputed facts, but his contention instead seeks "a factual determination of his alleged inability to pay based on a record that contains nothing more than his reliance on appointed counsel at trial." ( Frandsen, supra , 33 Cal.App.5th at p. 1153, 245 Cal.Rptr.3d 658.)
Defendant cannot rely on the court's finding that he lacked the ability to repay the costs of his appointed counsel under section 987.8 as the factual basis for his challenge to the fines, fees, and assessments. At the sentencing hearing in this case, the court denied the public defender's request for reimbursement of attorney fees in the amount of $50,000 because "[i]n light of the life sentence that [defendant] has been sentenced to, I'm gonna [sic ] find no ability [to pay]."
Section 987.8 is based on a different statutory scheme than those relied on to impose the fines, fees, and assessments. Section 987.8, subdivision (b) states that in considering the defendant's ability to pay and reimburse the county for the costs of appointed counsel, the court must give defendant notice that such costs may be assessed and an opportunity to be heard. In addition, the court may consider both the defendant's "present financial position and his reasonably discernible financial position during the following six months. [Citation.]" ( People v. Rodriguez, supra , 34 Cal.App.5th at p. 646, 246 Cal.Rptr.3d 392.) "But there's an important exception: If the defendant is sentenced to prison or to county jail for more than 364 days, he ‘shall be determined not to have a reasonably discernible future financial ability to reimburse’ defense costs ‘[u]nless the court finds unusual circumstances.’ [Citation.] [¶] Put another way, there is ‘a presumption under the statute that a defendant sentenced to prison does not have the ability to reimburse defense costs.’ [Citation.] To rebut this presumption, there must be ‘unusual circumstances.’ [Citation.]" (Ibid. )
Rodriguez held the trial court's order to reimburse the costs of appointed counsel in that case was improper, and the defendant did not forfeit the error by failing to object, since the defendant never received the requisite statutory notice of the proposed payment order. In addition, the defendant was sentenced to state prison and not granted probation and, based on the express language of the statute, he was presumed to be unable to pay attorney fees and costs. ( People v. Rodriguez, supra , 34 Cal.App.5th at pp. 647–648, 246 Cal.Rptr.3d 392.)
As applied to this case, the sentencing court's finding that defendant lacked the ability to reimburse the county for his public defender was correct under section 987.8 since he was sentenced to state prison. The court's finding does not provide a factual basis to overcome defendant's failure to object to the imposition of the fines and fees since he received notice of these amounts in the probation report.
3. Harmless Error; Ability to Pay
Even if we agreed with Dueñas and Castellano and found defendant did not waive his objections to the court's failure to conduct a hearing on his ability to pay, we would still reject his constitutional claims and find any error was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 ; People v. Johnson (2019) 35 Cal.App.5th 134, 139–140, 247 Cal.Rptr.3d 1 ; People v. Jones (2019) 36 Cal.App.5th 1028, 1030–1031, 249 Cal.Rptr.3d 190, petn. for review pending, petn. filed July 31, 2019.)
As explained above, a court's decision to deny a government request for reimbursement of attorney fees under section 987.8 does not similarly mean the defendant lacked the ability to pay the fines and fees imposed in this case. "[A] defendant may lack the ‘ability to pay’ the costs of court-appointed counsel yet have the ‘ability to pay’ a restitution fine" or other fees imposed by the trial court. ( People v. Douglas (1995) 39 Cal.App.4th 1385, 1397, 46 Cal.Rptr.2d 534.)
" ‘Ability to pay does not necessarily require existing employment or cash on hand.’ [Citation.] ‘[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.’ [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody. [Citation.]" ( People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837, 44 Cal.Rptr.2d 792 ; People v. Frye (1994) 21 Cal.App.4th 1483, 1487, 27 Cal.Rptr.2d 52 ; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377, 46 Cal.Rptr.2d 530.)
We can infer defendant in this case has the ability to pay the fines and fees imposed upon him from probable future wages, including prison wages. ( People v. Douglas , supra , 39 Cal.App.4th at p. 1397, 46 Cal.Rptr.2d 534.) Prison wages range from $12 to $56 per month, depending on the prisoner's skill level. ( Cal. Code. Regs., tit. 15, § 3041.2 ; Cal. Dept. of Corrections and Rehabilitation, Adult Institutions Operations Manual (2019), art. 12 (Inmate Pay), §§ 51120.1, 51120.6, pp. 354–356.) The state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b) restitution fine. (§ 2085.5, subds. (a), (c); People v. Ellis (2019) 31 Cal.App.5th 1090, 1094, 242 Cal.Rptr.3d 881.)
Defendant suggests the probation report supports an implied finding that he does not have the ability to pay because of certain physical and mental conditions. This claim is refuted by the record. Defendant's mental status was extensively addressed during the pretrial proceedings, he was found competent to stand trial, and he did not satisfy the criteria to plead not guilty by reason of insanity. Defendant testified at trial that he previously attempted suicide, and he was wounded when the officers returned fire. His mental status was further addressed during the trial testimony of the defense expert about his alleged intellectual disabilities. Defendant relied on the expert's testimony for an instruction on mental impairment – that the jury could consider evidence that he may have suffered from a mental disease, defect, or disorder to decide whether he acted with the specific intent to kill for the attempted murder charges. The jury rejected the defense evidence because it found defendant guilty of the two counts of attempted premeditated murder of the officers.
The record shows defendant has the ability to pay the total fines, fees, and assessments imposed by the court while he serves his aggregate prison term of 82 years to life. There is no evidence he suffered any permanent disabilities as a result of the gunshot wounds he received when the assisting officers returned fire. Defendant was held in jail prior to and during his trial without any apparent limitations. Indeed, defendant had the physical ability to attack his cellmate with a homemade weapon while these proceedings were pending, which resulted in his assault conviction.
Defendant's circumstances are vastly different from the probationer's situation in Dueñas. While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his lengthy prison sentence. (See, e.g., § 2085.5, subd. (a); People v. Potts (2019) 6 Cal.5th 1012, 1055–1057, 245 Cal.Rptr.3d 2, 436 P.3d 899 ; People v. Lewis (2009) 46 Cal.4th 1255, 1259, 96 Cal.Rptr.3d 512, 210 P.3d 1119 ; People v. DeFrance (2008) 167 Cal.App.4th 486, 505, 84 Cal.Rptr.3d 204.)
The same analysis would apply to the extent that ability to pay is one of the proportionality factors in Bajakajian.
DISPOSITION
The gang enhancement found true for count 3 is reversed for insufficient evidence, and the term imposed and stayed for that enhancement is stricken.
Since the trial court stayed the term imposed for the gang enhancement, the striking of that enhancement will not affect defendant's aggregate prison sentence.
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The matter is remanded for the court to correct and clarify the record on the specific sentencing issues set forth in part V, ante.
On remand, the court must determine whether to exercise its discretion to dismiss the section 12022.53, subdivision (d) firearm enhancements and the indeterminate terms imposed for those enhancements for counts 1 and/or 2, based on the recent statutory amendments that have granted such discretion to sentencing courts.
Also, on remand, the court shall conduct a hearing for defendant to make a record of information relevant to an eventual youth offender parole hearing.
In all other respects, the judgment as modified – including all fines, fees, and assessments imposed by the trial court – is affirmed.
I CONCUR:
DETJEN, J.
PEÑA, J., Concurring.
I concur in the judgment and most of the reasoning employed in the majority opinion. I am reluctant to consider, however, the question of whether People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 (Dueñas ) was wrongly decided or that the excessive fines clause of the Eighth Amendment is the only constitutional basis for challenging fines if a criminal defendant can establish his or her inability to pay the amount imposed.
The majority opinion examines two cases relevant to the question of forfeiture, People v. Frandsen (2019) 33 Cal.App.5th 1126, 245 Cal.Rptr.3d 658 and People v. Castellano (2019) 33 Cal.App.5th 485, 245 Cal.Rptr.3d 138, but then abruptly pivots to a multipage discussion about the Eighth Amendment. I believe our analysis should begin and end with the forfeiture issue. Given defendant's forfeiture of the inability-to-pay claim, it does not matter whether the merits of his claim could be resolved on due process, equal protection, or Eighth Amendment grounds. (See People v. Bipialaka (2019) 34 Cal.App.5th 455, 464, 246 Cal.Rptr.3d 177 [failure to object to various fines and fees resulted in forfeiture of the issue on appeal]; Frandsen , at pp. 1153–1154, 245 Cal.Rptr.3d 658 [limiting analysis of forfeited Dueñas claim to dispositive issues of futility and foreseeability].)
Defendant raised no issues with the trial court regarding its imposition of fines and fees. He also failed to present any evidence of an inability to pay the fines and fees. Since no constitutional arguments were made below, the majority opinion's musings about the soundness of Dueñas and whether defendant's forfeited claim should be analyzed under the Eighth Amendment constitute dicta, if not an advisory opinion. Because those questions are not properly before us, we should wait for a case in which they are squarely presented and ripe for determination.
My hesitation to criticize Dueñas is also based on the extreme set of facts and circumstances involved in that case. The Dueñas defendant was an indigent and homeless mother of two who relied on public aid for necessities due, in part, to her cerebral palsy illness. ( Dueñas , supra , 30 Cal.App.5th at pp. 1160–1161, 242 Cal.Rptr.3d 268.) Her driver's license had been suspended because she was unable to pay $1,088 in assessments stemming from three juvenile citations. ( Id. at p. 1161, 242 Cal.Rptr.3d 268.) She then suffered three misdemeanor convictions for driving on a suspended license and "was offered the ostensible choice of paying a fine or serving jail time in lieu of payment." (Ibid. ) With no financial means to choose the first option, she was repeatedly incarcerated and her outstanding debt continued to increase with each conviction.
Following another misdemeanor conviction for driving on a suspended license, the Dueñas defendant challenged the mandatory fees and fines imposed under Government Code section 70373 and Penal Code sections 1465.8 and 1202.4. She also proved her inability to pay the fines and fees. The trial court ruled her indigency was not a valid consideration and thus ordered her to pay the imposed sum. However, the Court of Appeal concluded "that due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under [the applicable statutes]." ( Dueñas , supra , 30 Cal.App.5th at p. 1164, 242 Cal.Rptr.3d 268.) Furthermore, "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid. )
Defendant Aviles is not similarly situated to the Dueñas defendant. Because the trial court imposed the maximum restitution fine under Penal Code section 1202.4, defendant had a statutory right to object to the fine based on a variety factors, including his inability to pay it. (Id. , subds. (c), (d).) No objections were made, which renders superfluous any discussion of Dueñas , due process rights, and/or the Eighth Amendment. (See People v. Johnson (2019) 35 Cal.App.5th 134, 138, fn. 5, 247 Cal.Rptr.3d 1 ["The distinction between minimum and above minimum restitution fines has consequences for the applicability of [the] forfeiture doctrine"].) I would thus reserve consideration of those issues for a proper case.
Certified for Partial Publication.*