Opinion
F075854
04-09-2020
THE PEOPLE, Plaintiff and Respondent, v. MARY ELLEN BONIFIELD-CARRILLO, Defendant and Appellant.
Allan E Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF293868A)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Allan E Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Following a 2016 jury trial in which she represented herself, a jury convicted appellant Mary Ellen Bonifield-Carrillo of (then) felony cultivation of marijuana (former Health & Saf. Code, § 11358; count 2), two counts of misdemeanor child abuse (Pen. Code, § 273a, subd. (b); counts 3 & 4) and misdemeanor simple possession of more than 28.5 grams of marijuana (former § 11357, subd. (c); count 5). Appellant was tried with her son, Rumaldo Andrew Carrillo.
Appellant's name appears in various forms in this record. She is sometimes referred as "Mary Bonifield (Carrillo)" and other times as "Mary Bonifield[.]" When introducing herself to the jury, she called herself "Mary Carrillo—actually, Mary Ellen Bonafield Carrillo." The probation report listed her name as "Mary Ellen Carrillo" with aliases of "Mary Garrett" and "Mary Carrillo Bonifield[.]" For this opinion, we use appellant's name as it appears on the title page of her opening brief.
All future statutory references are to the Health and Safety Code unless otherwise noted.
To avoid confusion, we refer to appellant's son as Andrew. He is not a party to this appeal. The jury convicted Andrew of possession of marijuana for sale (former § 11359; count 1) and cultivating marijuana (former § 11358; count 2). He was found not guilty of manufacturing a controlled substance (§ 11379.6, subd. (a); count 6).
The jury found true that appellant had suffered a prior conviction for a serious or violent felony (Pen. Code, § 1170.12, subds. (a)-(d)). The trial court, however, granted appellant's motion to strike that prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In count 2 (cultivation), the trial court sentenced appellant to 365 days in county jail. The court did not impose any additional time for appellant's three misdemeanor convictions. She was placed on formal probation for four years. The court imposed various fees, fines and assessments against her.
Appellant's prior conviction was an assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).
Appellant's criminal conduct in this matter occurred in 2013. At that time, it was illegal in California for a person to cultivate or process any marijuana plants unless the person fell under exemptions existing for medical patients. (Former § 11358.) On November 8, 2016, however, voters passed the Control, Regulate and Tax Adult Use of Marijuana Act, more commonly known as Proposition 64. (People v. Boatwright (2019) 36 Cal.App.5th 848, 853.) "Proposition 64 legalized the recreational use of marijuana and reduced the criminal penalties for various marijuana-related offenses, including the cultivation and possession for sale of marijuana." (Ibid.) After Proposition 64, it is now lawful for a person 21 years of age or older to "[p]ossess, plant, cultivate, harvest, dry, or process not more than six living cannabis plants and possess the cannabis produced by the plants[.]" (§ 11362.1, subd. (a)(3), italics added.)
In 1996, California voters passed Proposition 215, or the Compassionate Use Act of 1996. This permitted "seriously ill Californians" to obtain and use marijuana for medical purposes when recommended by a physician. (§ 11362.5, subds. (a) & (b)(1)(A).) A qualified patient is allowed "no more than eight ounces of dried cannabis" and may "maintain no more than six mature or 12 immature cannabis plants per qualified patient." (§ 11362.77, subd. (a).)
In 2017, following Proposition 64, appellant's felony conviction for cultivating marijuana (former § 11358; count 2) was reduced to a misdemeanor. The court modified her sentence to 70 days.
On June 2, 2017, appellant sought reconsideration of the trial court's ruling. She asserted her cultivation conviction should be dismissed or reduced to an infraction. The trial court denied her request.
In the present appeal, appellant argues the court erred in failing to reduce her conviction in count 2 to an infraction. She also contends certain penalty assessments associated with a criminal laboratory analysis fee (§ 11372.5) and a drug program fee (§ 11372.7) must be stricken. Finally, she relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and argues that imposition of certain other fees and fines must be stayed until this matter is remanded to the lower court for it to conduct a hearing regarding her ability to pay. She claims her rights to due process, equal protection, and the Eighth Amendment's prohibition against excessive fines were violated. We reject appellant's assertions and affirm.
BACKGROUND
I. Sheriff Deputies Search Appellant's Residence.
On October 24, 2013, deputies from the Tulare County Sheriff's Department executed a search warrant at appellant's residence. When deputies searched her residence, appellant resided with Andrew and her two other minor children. Andrew was 19 years old when the residence was searched.
On the south side of the residence, deputies discovered five large flowering marijuana plants growing together. Inside the residence, deputies recovered over two pounds of fully-processed marijuana, and over five pounds of partially-processed marijuana. The master bedroom contained mason jars of fully-processed marijuana. Another bedroom was used to process the marijuana plants. The prosecution introduced into evidence text messages from Andrew's cell phone. The messages, and other evidence, strongly suggested he was selling marijuana.
Certain evidence, such as butane cans around the residence, suggested Andrew had been manufacturing concentrated cannabis, also known as honey oil. The jury, however, found Andrew not guilty of manufacturing a controlled substance (§ 11379.6, subd. (a); count 6).
At trial, a detective with the Tulare County Sheriff's Department explained that appellant's residence, a mobile home, was very unkempt, with a lot of dust, trash and animal feces. It smelled of urine, feces, marijuana, and rotten food. The detective saw animal feces on the floor throughout the residence, and human feces in both toilets of the residence. Old food was sitting out in the kitchen. The entire residence received power through one power cord, which the detective believed created a fire hazard. The residence was very cluttered.
On the same day the search occurred, law enforcement officials interviewed Andrew. That interview was recorded and the audio was played for the jury. During his interview, Andrew stated he had harvested his marijuana "all at once" and "probably about six days" before law enforcement officials searched the property. He said he had harvested marijuana from four of his plants. He stated his marijuana had been drying for about six days.
That same day, law enforcement officials also interviewed appellant. Her interview was recorded and the audio was played for the jury. During her interview, appellant denied ever watering Andrew's marijuana plants. During her interview, a detective stated that messages had been discovered on Andrew's phone in which Andrew had texted appellant asking her to water the plants, and she had agreed to do so. Later text messages between them confirmed she had watered the plants. Appellant informed law enforcement that she did not recall these text messages.
II. Andrew's Trial Testimony.
At trial, Andrew denied selling marijuana. He testified that in February 2013 he had received a medical marijuana recommendation from a physician. He told the jury that "a couple weeks" after he received his medical marijuana license he had planted 12 marijuana plants behind the residence. He started these plants either in "middle or late March, somewhere in between that time." It took about seven months for the plants to grow to produce usable marijuana that could be smoked. According to Andrew, his plants had been producing usable marijuana for "[l]ess than a month" before the sheriff's department executed its search in October.
Andrew testified the growth area had become overcrowded as the plants grew. As the plants started to reach maturity, he had "pulled half of 'em out" so he would not exceed the limit of marijuana plants (12 juvenile or six mature) he could grow as a patient. He agreed at trial that he ended up with more marijuana than he had been expecting. Because this was the first time he had tried growing marijuana, he had not known how much his plants would produce. He told the jury that it was his understanding one mature plant would provide more than eight ounces of marijuana.
Andrew agreed he had been limited to eight ounces of marijuana as a medical marijuana patient, and he agreed he had possessed more than eight ounces of marijuana when deputies searched the residence. He estimated the total weight of his marijuana was "a little under two pounds." He told the jury he had processed so much marijuana in order "to store it and use it throughout the year."
Andrew admitted that, before the deputies had searched the residence, he had given a jar of partially-processed marijuana to appellant. Deputies had discovered this jar of marijuana in appellant's room.
III. Appellant's Trial Testimony.
During her trial testimony, appellant agreed that in July 2013 she had watered Andrew's marijuana plants "for a half hour." She had turned on a faucet connected to multiple hoses. In addition to watering the marijuana plants, she had watered her own garden at the same time. She agreed at trial that, in her interview with law enforcement, she had denied ever watering Andrew's marijuana plants. She told the jury she had forgotten about watering his plants, which had occurred "four months before" her interview.
DISCUSSION
I. The Trial Court Did Not Err In Refusing To Reduce Appellant's Conviction For Cultivation Of Marijuana Below A Misdemeanor.
Appellant argues her cultivation conviction in count 2 must be reduced to an infraction. She claims the prosecution failed to prove the necessary elements to establish a misdemeanor.
A. The legal background of section 11358.
Appellant was convicted under former section 11358. Under this prior statute, a felony occurred for "[e]very person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, ..." (Italics added.)
Following Proposition 64, however, this statute was amended. We highlight the relevant portions of the current wording:
"Each person who plants, cultivates, harvests, dries, or processes cannabis plants, or any part thereof, except as otherwise provided by law, shall be punished as follows:
"(a) Each person under the age of 18 who plants, cultivates, harvests, dries, or processes any cannabis plants shall be punished in the same manner provided in paragraph (1) of subdivision (b) of Section 11357.
"(b) Each person at least 18 years of age but less than 21 years of age who plants, cultivates, harvests, dries, or processes not more than six living cannabis plants shall be guilty of an infraction and a fine of not more than one hundred dollars ($100).
"(c) Each person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both that fine and imprisonment." (§ 11358, subds. (a)-(c), italics added.)
B. The mechanism to recall or dismiss a prior felony conviction.
Proposition 64 created a mechanism for defendants to recall or dismiss their convictions for marijuana-related offenses that no longer qualify as felonies. This process applies to a conviction (such as appellant's) under former section 11358. (§ 11361.8, subd. (a).)
Qualifying persons may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction. (§ 11361.8, subd. (a).) When such a person files a petition, the trial court is to presume the petitioner satisfies the criteria for a recall or dismissal of sentence "unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria." (Id. at subd. (b).) If the petitioner satisfies the criteria, "the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety." (Ibid.)
C. The April 20, 2017, hearing.
On April 20, 2017, the trial court heard oral argument regarding appellant's motion pursuant to Proposition 64 to modify her sentence in count 2. The prosecutor conceded that appellant's sentence should be reduced to a misdemeanor. Appellant, however, asserted her crime did not qualify as a misdemeanor, and she referred to section 11362.1. The prosecutor explained to the court that the substantive offense in this matter was under section 11358. The prosecutor clarified that imposition of an infraction or a misdemeanor depended on the age of the person and the number of plants involved.
Following Proposition 64, section 11362.1 states it is lawful for a person 21 years of age or older to "[p]ossess, plant, cultivate, harvest, dry, or process not more than six living cannabis plants and possess the cannabis produced by the plants[.]" (§ 11362.1, subd. (a)(3), italics added.)
To support his position, the prosecutor referred to a photograph of marijuana plants growing on appellant's property. According to the prosecutor, this photo showed nine plants and this photo had been admitted into evidence at trial. The prosecutor, however, did not identify the trial exhibit number associated with this photo. The prosecutor reminded the court that appellant had testified she had "watered the plants in July." The prosecutor asserted that the nine plants in the photo were "roughly" from the same time period when appellant had watered the plants. The prosecutor noted that, when the sheriff's department searched appellant's residence, there were fewer plants growing than depicted in the photo. The prosecutor, however, believed "the evidence has proven that [appellant] at the time she watered the plants watered more than six marijuana plants, and, thus, the charge is a misdemeanor."
In their respective briefing, the parties agree that this photo originally came from Andrew's cell phone.
Appellant objected to reducing count 2 to a misdemeanor. She argued only five plants were growing when she was arrested and the evidence had not established she had watered nine plants. She commented it was not clear when the prosecution's photo had been taken.
The court stated it had presided at trial and it recalled "many parts" of the evidence. The court recognized that the plants did not look the same when appellant watered them in July as compared to when she was arrested in October. Without providing further justification, the court said it would grant the request to reduce count 2 to a misdemeanor.
D. The June 2, 2017, hearing.
On June 2, 2017, the trial court heard argument regarding appellant's motion to reconsider. Appellant asserted a dismissal of count 2 was appropriate because she had only watered six marijuana plants. Appellant claimed this was "shown clearly" on the prosecutor's photo. During this hearing, appellant submitted her own photo to the court, which she represented was dated May 22, 2013. The court reviewed appellant's photo and commented it depicted "lots of leaves, what appears to be, from what we've learned from this trial, marijuana plants." Appellant stated, "If you compare [the prosecutor's photo from the last hearing] to the one that I submitted to the court, you can see the plants have been thinned out. There are big gaps in between these plants that are different from the first picture that [the prosecutor] submitted to this court, ..."
Appellant argued the prosecutor's photo was misleading. She contended the prosecution's photo really showed six plants, and she said a nearby roof distorted "the natural growth of the plants." She asked the court to compare the prosecutor's photo with other undesignated photos. She asserted that, based on such a comparison, it was possible to see that marijuana plants had been removed from the grow area. Later during the hearing, appellant reiterated that a dismissal of count 2 was appropriate because she had only watered six plants.
The trial court stated that appellant was "assuming the jury based the conviction on your words or your testimony." The court noted a lot of "additional evidence" was received at trial, but the court did not know what evidence the jury had relied upon in reaching their verdicts.
Later in the hearing, appellant conceded that the prosecutor's photo did show more than six plants. She argued, however, that this photo had not been taken in July. She asserted the prosecutor had lied and made erroneous representations regarding when this photo had been taken. In response, the prosecutor stated he had never represented his photograph had been taken in July, and he was not representing it established Andrew had cultivated more than six marijuana plants.
The judge asked appellant what she wanted the court to focus on. Appellant reiterated "there were not more than six plants when I went out there and watered those plants. They weren't mine. They were my son's medical marijuana, and it was way under what he was allowed to have at the time, which was 12." Without providing additional justification, the court denied appellant's request to reconsider its earlier ruling.
E. Analysis.
Appellant asserts she watered six plants or fewer in July 2013, and the prosecution failed to prove by clear and convincing evidence she had watered more than six plants. She contends substantial evidence does not establish when Andrew pulled out "half" of his plants from the grow area as they reached maturity. She maintains the prosecutor "approximated how many plants" she may have watered, and she argues her conviction must be reduced to an infraction. We disagree.
As an initial matter, appellant asserts that Andrew committed an infraction when he cultivated the marijuana plants. As such, she claims that, because she was an aider and abettor, she can only be liable for an infraction. She is mistaken. An infraction is appropriate when a person who is at least 18 years of age but less than 21 years of age plants, cultivates, harvests, dries, or processes not more than six living cannabis plants. (§ 11358, subd. (b), italics added.) Appellant does not meet the age requirement and for that reason alone her argument fails.
Appellant's arguments also suggest an aider and abettor cannot be liable for anything above a perpetrator's liability. That is incorrect. In certain circumstances, an aider and abettor may be liable for a greater offense than that committed by a perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1120.)
Moreover, the circumstantial evidence established that appellant aided and abetted in the cultivation and processing of more than six living cannabis plants. " 'A "person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." ' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) " 'Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact.... [¶] ... [¶] Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' [Citation.]" (Ibid.) " 'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.' [Citation.]" (Id. at p. 1055.) An accomplice's intent to encourage or facilitate the actions of a perpetrator must be formed before or during the commission of the offense. (People v. Montoya (1994) 7 Cal.4th 1027, 1039.)
In this matter, the jury was appropriately instructed on aiding and abetting. During closing argument, the prosecutor asserted appellant aided and abetted Andrew's efforts to cultivate the marijuana plants because "[s]he admitted that on at least one occasion she'd gone out there, and she tries to minimize what she did, but she turned on the water at Andrew's request so that she could water his marijuana plants for him, and someone without a recommendation, she's not allowed to touch those plants, water those plants, fertilize those plants, do anything with them, but she wasn't just doing this out of, you know, her own idea to go out there and water the plants. She was doing that because Andrew asked her to. So she was aiding and abetting his cultivation when she went out there at his request and watered his plants for him."
During closing argument, the prosecutor asserted that five marijuana plants were present when deputies searched appellant's residence.
The jury convicted Andrew of possession of marijuana for sale (former § 11359; count 1) and cultivating marijuana (former § 11358; count 2). According to Andrew's testimony, he planted 12 plants either in "middle or late March, somewhere in between that time." It took about seven months for the plants to grow to produce usable marijuana that could be smoked. Andrew told the jury his plants had been producing usable marijuana for "[l]ess than a month" before the sheriff's department executed its search in October. He testified that, as the 12 plants became bigger, the growth area had become overcrowded. As the plants started to reach maturity, he had "pulled half of 'em out" so he would not exceed the limit of marijuana plants (12 juvenile or six mature) he could grow under his medical marijuana card. He agreed he ended up with more marijuana than he had been expecting.
During his interview with deputies, which the jury heard, Andrew stated he had harvested his marijuana "all at once" and "probably about six days" before the deputies searched the property. He said he had harvested marijuana from four of his plants. He stated his marijuana had been drying for about six days.
Appellant admitted watering Andrew's plants in July. She also admitted that, when speaking with deputies, she had initially denied any involvement with Andrew's plants. Andrew's trial testimony and his statements to deputies overwhelmingly suggested he did not remove some of his plants until well after the time appellant watered them in July. Indeed, he told the deputies that he had just harvested his plants about a week before the search occurred.
Moreover, the circumstantial evidence demonstrates appellant knew Andrew was growing more than six marijuana plants, and she intended to aid him. Andrew gave appellant ajar of partially-processed marijuana, which was in her bedroom when deputies searched the residence. Further, appellant's house was being used to process the marijuana. Inside the residence, deputies recovered over two pounds of fully-processed marijuana, and over five pounds of partially-processed marijuana. The master bedroom contained mason jars of fully-processed marijuana.
Based on this record, appellant acted with knowledge of Andrew's purpose to grow and cultivate more than six cannabis plants, and she acted with an intent or purpose of committing, encouraging or facilitating that growth and cultivation. (See People v. Nguyen, supra, 61 Cal.4th 1054 [setting forth elements of aiding and abetting].) As such, appellant aided and abetted in the cultivation of more than six living cannabis plants and she was liable for a misdemeanor. (§ 11358, subd. (c).) This evidence was substantial because it was reasonable, credible and of solid value. (See People v. Kipp (2001) 26 Cal.4th 1100, 1128 [defining substantial evidence].) Thus, the prosecution met its burden of proof that appellant committed a misdemeanor, and not an infraction, when she aided Andrew's cultivation. (See § 11361.8, subd. (b).) Accordingly, the trial court did not err when it refused to dismiss or further reduce her conviction in count 2, and appellant's assertions are without merit.
II. We Will Not Strike The Penalty Assessments Associated With The Fees Imposed Pursuant To Sections 11372.5 And 11372.7.
At sentencing, the trial court ordered appellant to pay a $50 criminal laboratory analysis fee under section 11372.5, subdivision (a). The court also imposed a $100 drug program fee under section 11372.7, subdivision (a). Additional penalty assessments were added to these fees.
In two separate but related claims, appellant asserts that neither the criminal laboratory analysis fee nor the drug program fee qualify as a fine or punishment. She contends the associated penalties to these fees were thus not authorized. She asks that we strike these additional penalties. Her assertions are without merit.
Section 11372.5 imposes a "criminal laboratory analysis fee" on persons who are convicted of enumerated drug offenses, including a violation of section 11358. (§ 11372.5, subd. (a).) Section 11372.7 establishes a "drug program fee" for persons "convicted of a violation of" chapter 6 of division 10 of the Health and Safety Code, which includes section 11358. (§ 11372.7, subd. (a); see also People v. Ruiz (2018) 4 Cal.5th 1100, 1105 (Ruiz).)
Ruiz reviewed and affirmed an unpublished opinion issued by this court. (People v. Ruiz (May 19, 2016, F068737) 2016 Cal. App. Unpub. Lexis 3742.)
Appellant's arguments turn on whether sections 11372.5 and 11372.7 represent a fee or a fine. "Additional penalties, or assessments, are imposed under California law upon every fine, penalty or forfeiture imposed and collected by the courts for criminal offenses. This requirement is mandated by Penal Code section 1464 and Government Code section 76000." (People v. Sierra (1995) 37 Cal.App.4th 1690, 1694.)
In 2018, our Supreme Court considered whether the fees imposed under sections 11372.5 and 11372.7 actually constituted punishment. Its analysis was limited to considering whether it was permissible to impose these fees on a defendant who had committed a conspiracy to commit a drug offense. (Ruiz, supra, 4 Cal.5th at p. 1104.) After considering the legislative history of the statutes enacting these fees, the Ruiz court determined they constituted punishment. (Ruiz, supra, at p. 1119.)
Prior to Ruiz, at least four appellate opinions had held that laboratory and program fees were not fines, penalties or forfeitures. Ruiz, however, determined that, based on its analysis, it was "clear" the Legislature had intended the fees under section 11372.5, subdivision (a), and section 11372.7, subdivision (a), to be punishment. (Ruiz, supra, 4 Cal.5th at p. 1122.) To the extent they were inconsistent with its analysis and conclusion, Ruiz disapproved of four opinions which appellant had cited in her briefing for these claims: (1) People v. Martinez (2017) 15 Cal.App.5th 659; (2) People v. Webb (2017) 13 Cal.App.5th 486; (3) People v. Watts (2016) 2 Cal.App.5th 223; and (4) People v. Vega (2005) 130 Cal.App.4th 183. (Ruiz, supra, 4 Cal.5th at p. 1122, fn. 8.)
Although Ruiz determined that section 11372.5, subdivision (a), and section 11372.7, subdivision (a), constituted punishment, it did not address whether additional penalty assessments could be levied on the fees imposed in these statutes. In any event, following Ruiz, it is clear that these fees must be considered a fine, penalty, or forfeiture. (See Ruiz, supra, 4 Cal.5th at p. 1119.) As such, additional penalties were required. (See People v. Sierra, supra, 37 Cal.App.4th at p. 1694; Pen. Code, § 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1).) Accordingly, the trial court properly imposed the penalty assessments to these fees, and we reject appellant's assertions. III. Appellant Has Forfeited Her Claims Under Dueñas; In Any Event, Dueñas Is Distinguishable From The Present Matter And The Trial Court Did Not Violate Appellant's Constitutional Rights.
At the 2016 sentencing in this matter, the trial court imposed a $1,200 restitution fine under Penal Code section 1202.4, subdivision (b)(1). In addition, the court imposed a $120 criminal conviction assessment under Government Code section 70373, subdivision (a)(1), and a $160 court operations assessment under Penal Code section 1465.8, subdivision (a)(1).
In 2017, appellant, through her appellate counsel, submitted a letter to the trial court seeking a reduction in the total restitution fines imposed under Penal Code section 1202.4. Appellant asserted in the letter that, when count 2 was reduced to a misdemeanor, it appeared the court had also intended to reduce the restitution fines, but that did not appear in the applicable minute order. On January 16, 2018, the court subsequently issued an order that reduced appellant's total restitution fine to $560. This represented the imposition of four $140 minimum misdemeanor restitution fines under former Penal Code section 1202.4, subdivision (b)(1).
In her present claim, appellant asks this court to stay the restitution fines imposed against her under Penal Code section 1202.4, subdivision (b)(1), and the assessments imposed under Government Code section 70373, subdivision (a)(1), and Penal Code section 1465.8, subdivision (a)(1). She notes that nothing in this record establishes her financial status. She argues a stay is necessary until this matter is remanded to the trial court for it to conduct a hearing regarding her ability to pay. She relies primarily on Dueñas, supra, 30 Cal.App.5th 1157.
A restitution fine (Pen. Code, § 1202.4, subd. (b)(1)) represents punishment. (People v. Hanson (2000) 23 Cal.4th 355, 361-363.) In contrast, a court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) are not considered punishment. (People v. Alford (2007) 42 Cal.4th 749, 757 [Pen. Code, § 1465.8]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [Gov. Code, § 70373].)
According to the 2016 probation report, appellant has "psoriasis on her arms and legs." She also has arthritis in her hips and right knee. She has issues with sleeping due to back pain. She has applied for disability, which was not yet approved. She reported occasional depression, which was undiagnosed. She stated she was "living in a shed because her mother kicked her off the property." In 1999, appellant had purchased an antique store and she had been self-employed since then. Her store closed in 2010, "and she now sells her remaining antique inventory on [eBay]." Despite claiming to live in a shed, she also reported owning a mobile home. She has no bills associated with her mobile home. She receives $194 in food stamps and pays $170 a month for her cell phone.
In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. She had dropped out of high school because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) As a teenager, the defendant's license was suspended when she could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. (Ibid.)
After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. The court imposed a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)); and a minimum $150 restitution fine (Pen. Code, § 1202.4, subd. (b)(1)). The court also imposed and stayed a probation revocation restitution fine (Pen. Code, § 1202.44). (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) The defendant challenged the fees and fines imposed under Penal Code sections 1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The trial court rejected her constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.) On appeal, however, the Dueñas court determined that the defendant's due process rights had been infringed. According to Dueñas, an ability to pay hearing was required so the defendant's "present ability to pay" could be determined before assessments were levied for a court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). (Dueñas, at p. 1164.) The Dueñas court also concluded that the minimum restitution fine of $150 (Pen. Code, § 1202.4, subd. (b)(1)) had to be stayed. The appellate court reached that conclusion despite Penal Code section 1202.4 barring consideration of a defendant's ability to pay unless the judge is considering a fine over the statutory minimum. (Pen. Code, § 1202.4, subd. (c).) Dueñas held that "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." (Dueñas, at p. 1164.)
Nothing in these statutes authorizes a trial court to consider a defendant's ability to pay.
We find appellant's reliance on Dueñas unavailing. As an initial matter, she has forfeited these claims. In any event, Dueñas is distinguishable from the present matter. Moreover, even if Dueñas applies, appellant's constitutional rights were not violated.
A. Appellant has forfeited the Dueñas-related claims.
Penal Code section 1202.4, subdivision (b)(1), requires a court to impose a restitution fine in an amount not less than $300 and not more than $10,000 in every case where a person is convicted of a felony unless it finds compelling and extraordinary reasons not to do so. In 2013, when appellant committed these crimes, the minimum restitution fine for a misdemeanor was $140, and it was $280 for a felony. (Former Pen. Code, § 1202.4, subd. (b)(1).)
Penal Code section 1202.4, subdivision (c), specifies a defendant's inability to pay is not a compelling and extraordinary reason to refuse to impose the fine, but inability to pay may be considered when the restitution fine is increased above the minimum. (Pen. Code, § 1202.4, subd. (c).) While the defendant bears the burden of demonstrating his or her inability to pay, a separate hearing for the restitution fine is not required. (Pen. Code, § 1202.4, subd. (d).) "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." (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)
Here, and unlike the defendant in Dueñas, appellant did not object to the fees, fines and assessments imposed against her. Appellant also did not request a hearing regarding her ability to pay. Contrasting the present circumstances with Dueñas, where the court imposed the minimum restitution fine, appellant originally had a total restitution fine of $1,200 imposed against her for her four convictions. This represented an amount above the minimum permissible of $140 for each misdemeanor conviction (counts 3-5) and $280 for the felony conviction (count 2). (Former Pen. Code, § 1202.4, subd. (b)(1).)
Appellant had a statutory right, and was obligated, to object to the imposition of the restitution fines above the minimum amounts. (Pen. Code, § 1202.4, subd. (c) [inability to pay may be considered when the restitution fine is increased above the minimum].) A factual determination was required regarding her alleged inability to pay. (See People v. Frandsen, supra, 33 Cal.App.5th at p. 1153.) Thus, her objection below would not have been futile under governing law when she was sentenced in this matter. (Id. at p. 1154.) We stand by the traditional rule that a party must raise an issue in the trial court if they would like appellate review. (Id. at p. 1155.)
We reach the same conclusion with respect to the remaining assessments and fees. Because appellant failed to object to the restitution fine, which was above the minimum amount, we likewise reject any assertion she may now complain that the trial court imposed a court operations assessment of $160 (Pen. Code, § 1465.8, subd. (a)(1)); and a criminal conviction assessment of $120 (Gov. Code, § 70373, subd. (a)(1)). (See People v. Jenkins (2019) 40 Cal.App.5th 30, 40-41; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [finding forfeiture of Dueñas-related claims].)
Based on this record, appellant forfeited her Dueñas-related claims. (See, e.g., People v. Avila (2009) 46 Cal.4th 680, 729 [defendant forfeited issue by failing to object to imposition of restitution fine based on inability to pay]; see also People v. Jenkins, supra, 40 Cal.App.5th at pp. 40-41 [Dueñas error forfeited]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073 (Aviles) [same]; People v. Torres (2019) 39 Cal.App.5th 849, 860 [same]; People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033 [same]; People v. Frandsen, supra, 33 Cal.App.5th at p. 1154 [same]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same].)
B. Dueñas is distinguishable from the present matter.
According to the Dueñas court, the defendant lost her driver's license because she was too poor to pay her juvenile citations. She continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as "cascading consequences" stemming from "a series of criminal proceedings driven by, and contributing to, [the defendant's] poverty." (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.)
In contrast to Dueñas, appellant's present convictions were not a consequence of prior criminal assessments and fines. She was not caught in an unfair cycle of incarceration, and she could have avoided the present convictions regardless of her financial circumstances. Dueñas is distinguishable and it has no application in this matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928-929 [declining to apply Dueñas's "broad holding" beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 ["Dueñas is distinguishable."].)
C. The court did not violate appellant's constitutional rights.
Even if Dueñas is applicable here, we reject any argument that the trial court violated appellant's constitutional rights. The Dueñas defendant presented compelling evidence that the imposed assessments resulted in ongoing unintended punitive consequences against her. The Dueñas court determined that these unintended consequences were "fundamentally unfair" for an indigent defendant under principles of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court noted that the imposed financial obligations were also potentially unconstitutional under the excessive fines clause of the Eighth Amendment. However, Dueñas stated that "[t]he due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that '[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.' [Citation.]" (Dueñas, supra, at p. 1171, fn. 8.)
Dueñas's conclusion in this regard has been criticized. It has been noted that "Dueñas did not involve the right to access the courts, the defendant's liberty interests, or any other fundamental right." (People v. Santos (2019) 38 Cal.App.5th 923, 938 (dis. opn. of Elia, J.).) It has also been stated that the imposition of fees, fines and assessments does not satisfy "the traditional due process definition of a taking of life, liberty or property." (People v. Gutierrez, supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, Acting P.J.).)
Both People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks) and this court's opinion in Aviles, supra, 39 Cal.App.5th 1055 have strongly criticized Dueñas's analysis. (Hicks, supra, 40 Cal.App.5th at p. 322, review granted; Aviles, supra, 39 Cal.App.5th at pp. 1059-1060.) We agree with those criticisms. (See also People v. Kingston (2019) 41 Cal.App.5th 272, 279 [finding Hicks to be "better reasoned" than Dueñas]; People v. Caceres, supra, 39 Cal.App.5th at p. 928 ["In light of our concerns with the due process analysis in Dueñas, we decline to apply its broad holding requiring trial courts in all cases to determine a defendant's ability to pay before imposing court assessments or restitution fines."].)
This court in Aviles held that, in contrast to a due process challenge, the " 'excessive fines' " clause in the Eighth Amendment to the United States Constitution was a more appropriate avenue for an indigent defendant to challenge the imposition of fees, fines and assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Under its facts, Aviles found no constitutional violation for the imposition of assessments and fines imposed on a felon who, after fleeing from officers, shot and wounded two of them. (Id. at pp. 1059-1060.) Aviles also concluded that any presumed error was harmless because the felon had the ability to earn money while in prison. (Id. at pp. 1075-1077.)
The Hicks court held that, in contrast to Dueñas's application of due process, a due process violation must be based on a fundamental right, such as denying a defendant access to the courts or incarcerating an indigent defendant for nonpayment. Hicks concluded that Dueñas's analysis was flawed because it expanded due process in a manner that grants criminal defendants a right not conferred by precedent; that is, an ability to pay hearing before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325-326, review granted.) Under its facts, Hicks rejected a due process challenge to the imposition of fines and assessments on a felon who, while under the influence of a stimulant, resisted arrest. (Id. at pp. 323, 329-330.)
1. Appellant's due process rights were not violated.
In this matter, the fees, fines and assessments imposed against appellant do not implicate the traditional concerns of fundamental fairness. Appellant was not denied access to the courts or prohibited from presenting a defense. (See Griffin v. Illinois (1956) 351 U.S. 12, 18-20 [due process and equal protection require a state to provide criminal defendants with a free transcript for use on appeal]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.) Appellant was not incarcerated because she was unable to pay prior fees, fines or assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672-673 (Bearden) [fundamental fairness is violated if a state does not consider alternatives to imprisonment if a probationer in good faith cannot pay a fine or restitution]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.)
The unique concerns addressed in Dueñas are lacking here. Nothing establishes or even reasonably suggests appellant faces ongoing unintended punitive consequences. Appellant does not establish how she suffered a violation of a fundamental liberty interest. Because unintended consequences are not present, it was not fundamentally unfair for the court to impose the fees, fines and assessments in this matter without first determining her ability to pay. As such, the trial court did not violate appellant's due process rights, and this claim fails. (See People v. Kingston, supra, 41 Cal.App.5th at p. 282; Hicks, supra, 40 Cal.App.5th at p. 329, review granted.)
The dissent asserts that imposition of a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) and a court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)) unfairly burden an indigent defendant and implicate access to the criminal courts. Based on this alleged denial of a fundamental right, the dissent claims these assessments do not survive strict scrutiny. (Conc. & dis. opn., post, at p. 2.) The dissent, however, provides no legal authority supporting its position that imposition of these assessments implicates a fundamental constitutional right. Moreover, and contrary to the dissent's position, these assessments are not analogous to court reporter fees for an indigent defendant. (See Griffin v. Illinois, supra, 351 U.S. at pp. 18-20 [due process and equal protection require a state to provide criminal defendants with a free transcript for use on appeal].) The imposition of these assessments upon appellant did not deny her access to the courts, it did not prohibit her from presenting a defense, and it did not prevent her from pursuing her appellate claims. Finally, the dissent has failed to demonstrate how the statutes authorizing these assessments are constitutionally invalid. The defendant in Dueñas presented compelling evidence that the imposed assessments had resulted in ongoing unintended punitive consequences. In contrast, the dissent merely raises speculative assertions that appellant might suffer any number of future unintended consequences. (Conc. & dis. opn., post, at pp. 2-3.) Mere speculation does not establish a present constitutional infirmity. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [hypothetical situations are insufficient to establish a statute is facially unconstitutional].)
We note the court was permitted to impose fines upon appellant following her convictions. (See, e.g., Bearden v. Georgia, supra, 461 U.S. at p. 669 [a state has a fundamental interest in "appropriately punishing persons—rich and poor—who violate its criminal laws" and poverty does not immunize a defendant from punishment].)
Respondent concedes that due process is violated when an indigent defendant is imprisoned for failure to pay a punitive fine "because the fundamental right to liberty is implicated." Respondent urges us to resolve this due process challenge using a rational basis (as opposed to strict scrutiny) analysis. We need not fully respond to respondent's position in this regard or articulate the appropriate standard of review for a due process challenge in this situation. To the contrary, appellant's due process claims are based primarily on Dueñas, which neither articulated what fundamental liberty interest was at stake nor set forth a standard of review.
2. The restitution fine was not grossly disproportionate under the Eighth Amendment.
Appellant contends the $560 total restitution fine (Pen. Code, § 1202.4, subd. (b)(1)) imposed against her violates the Eighth Amendment's prohibition against excessive fines. We disagree.
"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." (United States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) "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.]' [Citations.]" (Aviles, supra, 39 Cal.App.5th at p. 1070.) 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.)
According to Bajakajian, two considerations are particularly relevant in deriving a constitutional excessiveness standard. First, "judgments about the appropriate punishment for an offense belong in the first instance to the legislature." (Bajakajian, supra, 524 U.S. at p. 336.) Second, "any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents." (Ibid.)
Here, after appellant filed the present appeal, the trial court reduced the restitution fines to the minimum amount of $140 in each of her four misdemeanor convictions. We must give deference to the Legislature's determination regarding the appropriate punishment. (Bajakajian, supra, 524 U.S. at p. 336.) When the relevant factors are examined, it is abundantly clear that the minimum restitution fines ultimately imposed against appellant were not "grossly disproportional" under these circumstances. (Id. at p. 334; see also Aviles, supra, 39 Cal.App.5th at p. 1072; People v. Gutierrez, supra, 35 Cal.App.5th at pp. 1040-1041 (conc. opn. of Benke, Acting P.J.).) Appellant was found guilty of cultivation of marijuana, two counts of misdemeanor child abuse, and misdemeanor simple possession of more than 28.5 grams of marijuana. As such, we reject appellant's assertions that the excessive fines clause of the Eighth Amendment was violated.
3. The restitution fine did not violate appellant's rights to equal protection under the law.
Appellant contends that imposition of the restitution fine under Penal Code section 1202.4, subdivision (b)(1), violated her rights to equal protection. She points to Dueñas, which stated an indigent probationer is treated differently from a wealthy defendant. A defendant who has successfully fulfilled the conditions of probation for the entire period of probation has a statutory right to have the charges against him or her dismissed under Penal Code section 1203.4, subdivision (a)(1). "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. Instead, the indigent probationer must appeal to the discretion of the trial court and must persuade the court that dismissal of the charges and relief from the penalties of the offense is in the interest of justice. [Citation.]" (Dueñas, supra, 30 Cal.App.5th at pp. 1170-1171.)
Appellant asserts there is "no meaningful difference" between a denial of access to the criminal justice system (as what occurred in Griffin v. Illinois, supra, 351 U.S. 12, when the state required a criminal defendant to pay for a transcript for an appeal) and being denied the ability to have all her penalties and disabilities released under Penal Code section 1203.4, subdivision (a)(1), following successful completion of probation. She quotes from People v. Neal (2018) 29 Cal.App.5th 820 (Neal) to show how a criminal restitution fine can work "infirmities" on her.
In Neal, the defendant was convicted of possession of a firearm by an ex-felon. (Neal, supra, 29 Cal.App.5th at p. 821.) Based on a recommendation from probation, the court imposed a probation supervision fee of $75 per month. The defendant objected, asserting he was disabled and his wife was the only one who worked. They supported two children and they were in danger of foreclosure. The trial court, however, responded that the probation officer was responsible for this determination. The court declined to "weigh in" on the defendant's financial situation. (Id. at pp. 824-825.) On appeal, the Neal court found several problems, including that the trial court, and not the probation officer, should have made the final determination regarding the defendant's ability to pay the probation costs under Penal Code section 1203.1b, subdivision (a). (Neal, at pp. 825-826.) The Neal court commented that an "unjustified imposition of probation services fees" and other "forms of criminal justice debt creates a significant barrier for individuals seeking to rebuild their lives after a criminal conviction. Criminal justice debt and associated collection practices can damage credit, interfere with a defendant's commitments, such as child support obligations, restrict employment opportunities and otherwise impede reentry and rehabilitation." (Id. at p. 827.) The appellate court noted that " '[a]ggressive collection tactics can disrupt employment, make it difficult to meet other obligations such as child support, and lead to financial insecurity—all of which can lead to recidivism.' [Citations.]" (Ibid.)
We find appellant's equal protection claim unpersuasive. We have already concluded that Dueñas is distinguishable from the present matter and we will not apply it here. In any event, Dueñas based its holding on due process grounds, and not on equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. 4.) Further, Neal did not involve an equal protection challenge. Cases are not authority for propositions not considered or decided. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134.)
To resolve the equal protection challenge, four opinions are instructive. First, in Williams v. Illinois (1970) 399 U.S. 235 (Williams), the United States Supreme Court invalidated on equal protection grounds a facially neutral statute that authorized imprisonment for an indigent's failure to pay fines. (Id. at pp. 241-242.)
Second, in Tate v. Short (1971) 401 U.S. 395 (Tate), the United States Supreme Court expanded upon Williams. The Tate court held that equal protection was violated when an indigent defendant was committed to a "municipal prison farm" because he could not pay accumulated fines of $425 based on nine convictions for traffic offenses. (Tate, at pp. 396-397.) The high court noted that the defendant "was subjected to imprisonment solely because of his indigency." (Id. at p. 398.) Important to the issue before us, the Tate court commented that a state has a "valid interest in enforcing payment of fines." (Id. at p. 399.) According to Tate, a state "is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction." (Ibid.) The high court stated that " 'numerous alternatives' " existed for a state to avoid "imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs." (Ibid.) However, those alternatives were left for the states to explore. (Id. at p. 400.)
Third, in In re Antazo (1970) 3 Cal.3d 100, the California Supreme Court held that an indigent defendant could not be imprisoned for failure to pay a fine. Otherwise, a violation of equal protection would occur based on wealth. (Id. at pp. 103-104.) Importantly, our high court stated that imposing a fine and penalty assessment on an indigent offender did not by itself necessarily constitute a violation of equal protection. Apart from imprisonment, alternatives exist that could permit an indigent offender to be fined. (Id. at p. 116.)
Finally, in Bearden, supra, 461 U.S. 660, the United States Supreme Court held that a court may not revoke probation for an indigent defendant's inability to pay a fine and restitution, absent evidence and findings that the defendant was responsible for the failure or that alternative forms of punishment were inadequate. Otherwise, the "deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment." (Id. at pp. 672-673.) The high court, however, reiterated that a state is not powerless to enforce judgments against those financially unable to pay a fine. (Id. at pp. 671-672.) Bearden also noted that, when a defendant's indigency is involved, due process provides a better analytic framework than equal protection because "a defendant's level of financial resources is a point on a spectrum rather than a classification." (Id. at p. 666, fn. 8.) In the same footnote, Bearden stated that "[t]he more appropriate question is whether consideration of a defendant's financial background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of due process." (Ibid.)
In both Williams and Tate, the United States Supreme Court strongly suggested that the imposition of a fine on an indigent defendant did not by itself violate equal protection. In In re Antazo, our high court made it clear that a court may impose a fine or penalty on an indigent offender so long as the state offers alternatives to imprisonment for purposes of repayment. (In re Antazo, supra, 3 Cal.3d at p. 116.) The Bearden court cautioned that a due process approach, and not equal protection, is more appropriate when "confronting the intertwined question of the role that a defendant's financial background can play in determining an appropriate sentence." (Bearden, supra, 461 U.S. at p. 666, fn. 8.)
The United States Supreme Court has commented that Williams and Tate did not "touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. The Court has not held that fines must be structured to reflect each person's ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant's ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate." (San Antonio Independent School District v. Rodriguez (1973) 411 U.S. 1, 22.)
In light of Williams, Tate, In re Antazo and Bearden, it is clear that equal protection was not violated when the court imposed the reduced restitution fine in this matter. Appellant was not incarcerated because of her alleged poverty. She does not articulate how a fundamental liberty interest was implicated. Thus, the trial court was permitted to impose a fine or penalty on her so long as alternatives to imprisonment are offered for purposes of repayment. (In re Antazo, supra, 3 Cal.3d at p. 116.)
Based on this record, the trial court did not violate appellant's constitutional rights when it imposed the disputed fees, fines and assessments without first determining appellant's ability to pay them. Accordingly, appellant's arguments are without merit, and this claim fails.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, J. I CONCUR: /s/_________
HILL, P.J. SMITH, J., Concurring and Dissenting.
I agree with the majority that there was no error in the trial court's refusal to reduce appellant's conviction for cultivation of marijuana to an infraction. I disagree in some respects with the majority's resolution of appellant's challenge to the fines and fees imposed in this case, specifically the criminal conviction and court operations assessments and the restitution fine. As an initial matter, I do not share the majority's view that this challenge is forfeited for the lack of objection in the trial court. Secondly, while I agree that the trial court was not constitutionally required to conduct an ability to pay hearing on the restitution fine, I conclude an ability to pay hearing was required before the court could impose the criminal conviction and court operations assessments.
Fines imposed as punishment (here the restitution fine imposed pursuant to Pen. Code, § 1202.4, subd. (b)(1) ) are subject to the existing constitutional rule that monetary punishments in and of themselves need not be adjusted in accordance with an ability to pay. (See Williams v. Illinois (1970) 399 U.S. 235, 244; Tate v. Short (1971) 401 U.S. 395, 399; Bearden v. Georgia (1983) 461 U.S. 660, 672; In re Antazo (1970) 3 Cal.3d 100, 115.) However, I part company with the majority with regard to the constitutionality of imposing criminal conviction and court operations assessments (mandated by Gov. Code, § 70373, subd. (a)(1) and Pen. Code, § 1465.8, subd. (a)(1), respectively) without holding an ability to pay hearing. In my view, these assessments, which are designed as user fees to fund the courts, cannot be imposed on criminal defendants without regard to their ability to pay, just as other cost-recovery charges that bear on access to the criminal process—such as fees for trial records to be used on appeal—cannot. (See Griffin v. Illinois (1956) 351 U.S. 12, 16-17.) To that extent I would vacate the criminal conviction and court operations assessments and remand for an ability to pay hearing.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant's sentence included the following assessments and fines: a court operations assessment of $160 (§ 1465.8); a criminal conviction assessment of $120 (Gov. Code, § 70373); and a restitution fine in the amount of $560 (§ 1202.4, subd. (b)). Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), appellant argues that the imposition of these assessments and this fine without a prior hearing to determine the ability to pay them contravened the guaranties of due process of law and equal protection of the laws contained in the state and federal constitutions.
In my view, the nonpunitive criminal conviction and court operations assessments may not be imposed on an indigent defendant because of the fundamental unfairness in granting indigent defendants access to a court in which to defend against criminal accusations only in conjunction with the creation of overwhelming debt, while solvent defendants are granted access without being saddled with overwhelming debt.
The nonpunitive court facilities and court operations assessments may not be imposed on a defendant who is unable to pay because: these charges are imposed on court users for use of the court, burdening their exercise of the fundamental right of access to the criminal courts; their imposition burdens those for whom they are unaffordable more than those for whom they are affordable, triggering an equal protection analysis under strict scrutiny; the difference in the burden on the two groups' rights to access to the courts is not necessary to further the government's interest in funding the courts (not narrowly tailored) because there are many ways to fund the courts that do not involve any such differential burden; and so the scheme fails strict scrutiny.
Thus, there is a constitutional difficulty with the imposition of the court operations assessment (here, $160) and the criminal conviction assessment (here, $120) without a prior determination of a defendant's ability to pay. The implementation of these assessments (here, totaling $280)—designed to function as user fees—without regard to ability to pay places a greater burden on those who cannot pay than on those who can. A defendant who has immediate access to $280 and is ordered to pay it suffers a consequence of the loss of $280. A defendant under the same order who does not have access to the same amount of money experiences the consequences of being a delinquent debtor—loss of access to credit, declarations of delinquency on other debts that have cross-default provisions, actual defaults on other debts caused by the strain of attempting to satisfy the court-imposed debt, harm to employment and housing relationships and prospects, loss in some cases of opportunities for expungement of convictions and early termination of probation, and more—and is still liable for the court-ordered payment, plus collection fees and interest. (See, e.g., People v. Neal (2018) 29 Cal.App.5th 820, 827-828.) This means there are additional consequences to indigent convicted defendants for access to courts in which to defend themselves than for solvent convicted defendants to have the same access. The situation is no different than it would be if the cost of court reporters' transcripts were not waived for indigent criminal appellants but instead became a debt payable to the court upon affirmance of the conviction. The United States Supreme Court has long held that the right of access to the criminal courts is a fundamental right and the exercise of it cannot constitutionally be curtailed on the basis of an ability to pay. (Griffin v. Illinois, supra, 351 U.S. at pp. 16-17 ["all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court'"].)
On the other hand, there is no constitutional impediment in imposing a restitution fine without regard to ability to pay. The restitution fine is not a user fee that funds the courts, but has instead been classified by our Supreme Court as a form of punishment. The United States Supreme Court has stated that the states' enforcement of judgments arising from unpaid fines imposed for punishment, is not constitutionally limited by the indigency of defendants. (See Williams v. Illinois, supra, 399 U.S. at p. 244 (and progeny cases cited above).)
The majority concludes appellant is not entitled to relief because she did not raise the issue decided by Dueñas by objecting in the trial court.
Ordinarily we do not consider claims of error where an objection could have been, but was not, made in some appropriate form at trial. It is usually unfair to the trial court and the adverse party to take advantage of an error on appeal which could have been corrected during the trial. (People v. Saunders (1993) 5 Cal.4th 580, 590; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) In conformity with common sense, however, our Supreme Court has stated that failure to object in the trial court does not forfeit an appellate issue "where to require defense counsel to raise an objection would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule . . . would be changed on appeal." (People v. Rangel (2016) 62 Cal.4th 1192, 1215.) Assessments and fines like those at issue in this case have existed in California for decades and have been imposed in countless cases without previously generating an appellate ruling that imposition of them on the indigent is unconstitutional. Dueñas easily qualifies as a change in the law not likely to have been foreseen—exactly the sort of development it would be unreasonable to expect defense counsel to have on a list of objections to be made in the hope that the law might change someday.
The majority, and some Court of Appeal panels, maintain that Dueñas error is forfeited if not raised in pre-Dueñas proceedings in the trial court. I have great difficulty with this contention as it applies to court user fees. I agree with the majority that "[a]ppellant had a statutory right, and was obligated, to object to the imposition of the restitution fines above the minimum amounts." (Maj. opn. ante, at p. 19.) Under section 1202.4, subdivision (c), "[i]nability 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)," and it would have been counsel's obligation to make the trial court aware of appellant's financial situation. However, in this instance, the court ultimately imposed only minimum restitution fines of $140 (for misdemeanors), when appellant's convictions were converted to misdemeanors. The court's imposition of minimum restitution fines obviated the need for appellant to object at the operative hearing, i.e., the hearing at which the existing minimum restitution fines were imposed. In sum, appellant has not forfeited her challenge to the court operations and criminal conviction assessments and, in this instance, she has not forfeited her challenge to the restitution fine either.
I conclude the laws requiring the imposition of the criminal conviction and court operations assessments without regard to a defendant's ability to pay, fail strict scrutiny and violate the equal protection clause. I would vacate the assessments and remand for the trial court to proceed in a manner that does not result in their imposition despite appellant's inability to pay.
/s/_________
SMITH, J.