Opinion
G056173
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND MARTIN BOYKIN, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF3891) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Raymond Martin Boykin appeals from the judgment following his conviction for a series of sexual assaults involving three women. He was convicted on all counts and sentenced to a term in excess of 56 years to life in prison.
Boykin's term consisted of an indeterminate term of 45 years to life, plus a consecutive determinate term of 11 years 8 months.
Boykin challenges the judgment on three grounds. First, he argues his convictions must be reversed because the court abused its discretion by not removing a juror after the juror reported a brief encounter with an unidentified woman who expressed support for Boykin. Alternatively, Boykin argues the court was obligated to at least hold a hearing to investigate the incident and its effect on the juror. We find both arguments unpersuasive because the juror's encounter with the woman was brief and non-threatening. There was also no indication the juror was impacted by the encounter, let alone rendered unable to remain neutral. Under the circumstances, we cannot conclude the court abused its discretion by failing to take action after learning of the incident.
Boykin also argues the evidence is insufficient to support his conviction on two separate counts of oral copulation involving one of his victims. He argues the police report detailing how he forced the woman to copulate him, then forced her to do so a second time after she had stopped and made a brief effort to find out his identity, was not sufficiently reliable to constitute substantial evidence. The assertion, which is essentially an attack on witness credibility, is not cognizable on appeal. The police report was part of the evidentiary record, and it was supported by the testimony of the officer who prepared it. It was the jury's job to determine whether it was credible. Apparently, the jurors concluded it was.
Finally, Boykin relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), to argue he was denied due process when the trial court imposed court fees and a restitution fine without first determining he had the present ability to pay them. We conclude Dueñas, which is primarily concerned with the cascade of negative consequences—both civil and penal—stemming from the defendant's long-term inability to pay assessments imposed upon her as a juvenile, is distinguishable. Boykin makes no claim he is at risk of suffering any of the consequences that concerned the court in Dueñas. Even if he did, we would conclude that the proper time to address the propriety of those consequences is when a court concludes Boykin has failed to pay his fees and fine by the appropriate deadline. At that point, he should have the opportunity to demonstrate that his failure was due to an inability to pay, rather than a willful refusal.
The judgment is affirmed.
FACTS
Three women were sexually assaulted within the span of a week in December 2013. On December 7, 2013, Jane Doe 3 was attacked as she was walking to her apartment on Chapman Avenue. Her assailant put his arms around her mouth and throat and pulled her backwards toward the driveway of a nearby fast food restaurant. He told her that he was going to stab and kill her, and he took her phone.
Jane Doe 3 then dropped to the ground. Her assailant was unable to drag her, so she managed to get away. Her assailant fled after a bystander intervened. Boykin's DNA was consistent with DNA found on a swab from Jane Doe 3's right hand.
Four days later, on December 11, Jane Doe 1 was shopping at the MainPlace Mall in Santa Ana. When she returned to her car in a parking structure, she opened the driver's side door and put her purse on the floor on the passenger side. As she was about to sit down in the driver's seat, she felt someone cover her eyes. She thought it might be her boyfriend until she felt hands over her body and a knife on her neck.
Her assailant told Jane Doe 1 to shut up, threatened to kill her, and forced her into the car. He got into the car with her, keeping the knife at her neck. She told him she would do whatever he wanted as long as he put the knife away, which he did.
Jane Doe 1 wanted to call 911, but she never got the chance because her assailant took her phone and put it in his pocket. He then unbuttoned her shirt, fondled her breasts underneath her bra, and kissed her. He took his penis out of his pants and demanded that she perform oral sex. In an effort to stall, Jane Doe 1 told her assailant she wanted to know his name. She later recalled that the assailant's name began with an "R."
At trial, Jane Doe 1 could not remember if she put Boykin's penis in her mouth before she paused to ask his name, and then orally copulated him again after he responded. Her sense was that she asked Boykin his name first and then gave him oral sex, but she was not certain. However, when she spoke to a police officer shortly after the assault, Jane Doe 1 told the officer that there had been two instances of oral copulation—the first, lasting approximately 20 seconds, was before she asked her assailant his name, and the second, for a similar length of time, after he told her to give him oral sex or he was going to kill her. Jane Doe 1 agreed her memory of the incident had been fresher when she spoke to the police officer.
Jane Doe 1 was able to escape from the car after the oral copulation, although her assailant tried to restrain her by pulling her hair, and pulling on her necklace so hard that it broke. She ran toward the mall. Another woman, hearing her screams, let Jane Doe 1 into her car and drove her to safety.
Shortly after the attack, Boykin was captured on surveillance video at a Verizon store in the mall. He purchased a phone with money he did not have when he'd been in the store earlier in the day. After he completed his purchase and left the store, a Verizon employee found Jane Doe 1's purse in the trash can. Boykin's DNA was later determined to be consistent with foreign DNA that was found on a swab taken from Jane Doe 1's breast.
In the early morning of December 13, 2013, two days after the assault on Jane Doe 1, Jane Doe 2 was attacked by a man as she opened the door to her car. Her assailant shocked her with a taser-like device and forced her into the car. He then tried to kiss her and took her jacket and turtleneck off. Jane Doe 2 resisted, and her assailant hit her and bit her shoulder. He then took his penis out of his pants and touched Jane Doe 2's mouth with it. He tried to take her pants off as well, but they were too tight. She was eventually able to kick her assailant, which enabled her to escape. She left her keys in the ignition and her assailant drove off with her car.
Later that same morning, a police officer saw Jane Doe 2's car, which she had reported stolen. Boykin was driving the car, and there were three other men in the vehicle with him. Boykin failed to yield when the officer activated his lights and siren, and instead led the officer on a chase. During the chase, Boykin failed to stop at stop signs and exceeded the speed limit on residential streets. He was eventually arrested.
Jane Doe 2 identified Boykin as her assailant during an in-field show-up. His DNA was found to be consistent with foreign DNA taken from Jane Doe 2's fingernails, breast, and the bite mark on her shoulder.
Boykin was charged by information with two counts of forcible oral copulation with Jane Doe 1 (Pen. Code, § 288a, subd. (c)(2) (counts 1 and 2)); assault with intent to commit a sexual offense on Jane Doe 2 (§ 220, subd. (a)(1) (count 3)); forcible oral copulation with Jane Doe 2 (§ 228a, subd. (c)(2) (count 4)); unlawful taking of Jane Doe 2's vehicle (Veh. Code, § 10851, subd. (a) (count 5)); evading while driving recklessly (Veh. Code, § 2800.2 (count 6)); kidnapping of Jane Doe 3 to commit oral copulation (§ 209, subd. (b)(1) (count 7)); and second degree robbery against Jane Doe 3 (§§ 211, 212.5, subd. (c) (count 8)).
All subsequent statutory references are to the Penal Code unless otherwise noted.
The information further alleged, as to counts 1 and 2, that Boykin personally used a deadly weapon in the commission of the offense (§ 667.61, subds. (b), (e)(3)), and as to counts 1, 2, and 4, that Boykin committed the offense against more than one victim (§ 667.61, subds. (b), (e)(4)).
The jury found Boykin guilty on counts 1 through 6 and count 8. It found him not guilty of aggravated kidnapping on count 7, but guilty of the lesser included offense of simple kidnapping. The jury found the deadly weapon allegation to be true as to the first count of forcible oral copulation of Jane Doe 1, but not true as to the second count. It also found true the multiple victim allegation as to counts 1, 2, and 4.
The court sentenced Boykin to an indeterminate term of 45 years to life, consisting of consecutive 15-year-to-life sentences on counts 1, 2, and 4. The court also imposed a consecutive determinate term of 11 years 8 months, consisting of 8 years on count 7, 16 months on count 3; 8 months on count 5; 8 months on count 6; and 1 year on count 8.
The court imposed certain mandatory court fees, including a court operations fee of $40 for each of his eight convictions (§ 1465.8) and a criminal conviction assessment fee of $30 per conviction (Gov. Code, § 70373, subd. (a)(1)). The court also imposed a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), and imposed but suspended a $200 parole revocation fine pursuant to Penal Code section 1202.45.
DISCUSSION
1. Failure to Discharge Juror or Conduct Inquiry into Third-Party Contact with Juror
Boykin first argues that the judgment must be reversed because the trial court violated his constitutional rights to due process and a fair trial when it failed to discharge a juror for bias after the juror reported being contacted by a member of the public—who was apparently supportive of Boykin—during a break in the trial. In the alternative, Boykin argues the court abused its discretion by failing to conduct an inquiry about the incident before deciding to retain the juror. We are unpersuaded by either contention.
This issue arises out of an incident on May 25, 2017, the third day of the jury trial. After the jurors had been excused for the day, the court called counsel into chambers and informed them that Juror 148 had just presented the court with a note. The court then read the note to counsel, as follows: "I went to the jury assembly room during the lunch break. I was sitting at the first table inside the door. After I was done eating, I noticed a young African/American lady walk into the room. I recognized her from inside the courtroom, and she is not part of the jury. She turned and looked at me and said, 'Free Boykin,' . . . [¶] Then it appeared that she recognized me and said . . . 'Never mind' . . . [¶] And then she turned away. I never spoke any words and went back to reading my book."
After the court finished reading the note, Boykin's counsel immediately responded, "I move to replace that juror." The court replied, "If anything, it appears that the juror, and hopefully all the other ones, are listening to me and obviously are taking their job very seriously. [¶] I do not feel that that particular question warrants any need to inquire of that juror or any jurors." The court then asked the prosecutor and Boykin's counsel if they wished to further address the issue. Both responded "no."
Boykin contends the court violated his rights by refusing his motion to discharge the juror for bias. The issue is an important one. "An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is '"capable and willing to decide the case solely on the evidence before it."'" (In re Hamilton (1999) 20 Cal.4th 273, 293-294 (Hamilton).)
The jury's impartiality may be challenged by evidence of "'statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.'" (Hamilton, supra, 20 Cal.4th at p. 294, quoting Evid. Code, § 1150, subd. (a).) And if the court finds that a juror has become biased as a consequence of contact with a nonjuror during the trial, the court may discharge the juror and draw the name of an alternate to take the discharged juror's place. "A sitting juror's actual bias, which would have supported a challenge for cause, renders him 'unable to perform his duty' and thus subject to discharge and substitution . . . ." (People v. Keenan (1988) 46 Cal.3d 478, 532.)
This analysis applies even in cases such as this, where the juror's own conduct is above reproach. "A sitting juror's involuntary exposure to events outside the trial evidence, even if not 'misconduct' in the pejorative sense, may require similar examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation." (Hamilton, supra, 20 Cal.4th at pp. 294-295.)
In this case, nothing so dramatic occurred. Rather, a woman, who was attending the trial expressed her thought that Boykin should be freed, before backing off when she apparently recognized her audience was Juror 148. It is apparent to us that any juror would likely have suspected that a person attending the trial favored one side or another since this was not a celebrity or political trial that might be expected to attract random members of the public. Thus, the only real revelation in the encounter, to the extent there was one at all, would have been which side the young woman was there to support. Boykin suggests that fact alone may have been enough to bias the juror, arguing "the communication may have caused the juror to become biased against appellant because of the fact the woman was clearly a supporter of appellant who felt compelled to speak out on his behalf."
We disagree. A juror's realization that a person who has been attending a trial supports the defendant, rather than the prosecution, is not enough to suggest the juror may have become biased. The law recognizes that jurors cannot avoid all extraneous information, such as that a defendant has supporters. "It is 'virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' [Citation.] Moreover, the jury is a 'fundamentally human' institution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of the institution. [Citation.] 'If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.'" (Hamilton, supra, 20 Cal.4th at p. 296.)
As for the fact the woman "felt compelled to speak out on his behalf," it is significant that she said nothing of substance. Although "a nonjuror's tampering contact or communication with a sitting juror, usually raises a rebuttable 'presumption' of prejudice" when "'the content of the communication was about the matter pending before the jury, i.e., the guilt or innocence of the defendant'" (Hamilton, supra, 20 Cal.4th at pp. 295, 305-306), the woman who spoke to Juror 148 did not say Boykin was innocent. She made no effort to persuade the juror of anything relative to the merits of the case. She merely stated, out loud, what might have already been obvious to anyone sitting in the juror box—she was there to support Boykin.
In the absence of some indication that the juror had been troubled or influenced by the encounter, there is no basis to presume it would have engendered bias. And there was no such indication. To the contrary, Juror 148 implicitly indicated the encounter had not been troubling or distracting by noting that after the young woman withdrew, "I . . . went back to reading my book."
"Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant." (Hamilton, supra, 20 Cal.4th at p. 296.)
In Hamilton, the Supreme Court concluded that an incident in which a couple who appeared to be the petitioner's sister and her boyfriend had been spotted by a juror parked in an alley behind the juror's house, "g[a]ve rise to no substantial likelihood that the encounter resulted in [the juror's] actual bias against petitioner." As the court explained, "[t]he episode described by [the juror] was brief, isolated, and ambiguous. The people [the juror] saw parked in her alley did not approach or speak to her. [The juror] mentioned no display of weapons or threatening gestures. According to [the juror], the two individuals simply sat in their car, and they drove away rapidly the instant they realized that [the juror] had seen them." (Hamilton, supra, 20 Cal.4th at p. 306.)
The circumstances of this case are, if anything, less troubling than those described in Hamilton. The young woman spoke briefly to Juror 148, but said nothing beyond the revelation of her support for Boykin; she then backed off immediately after appearing to recognize Juror 148. As in Hamilton, the encounter was brief, isolated, and ambiguous. And, like in Hamilton, we find it gave rise to no substantial likelihood that the encounter resulted in Juror 148's actual bias against Boykin. It was strange; nothing more. We consequently find no error in the trial court's denial of the request by Boykin's counsel to discharge Juror 148 from the jury.
In the alternative, Boykin argues that even if the court did not err by refusing to discharge Juror 148 immediately, it erred by failing to conduct an investigation into whether the juror might have been biased by the encounter. Again, we must disagree.
Initially, we note that although Boykin's counsel moved to discharge Juror 148, he backed off after the court responded by expressing admiration for how "the juror, and hopefully all the other ones, are listening to me and obviously are taking their job very seriously," and then stated its belief that no further inquiry into the matter was needed. When asked if he felt the need to address the matter further, Boykin's counsel said "no." The Attorney General argues that amounted to a waiver of the right to seek an inquiry. We reject that assertion for two reasons.
First, in light of the fact Boykin's counsel had sought to dismiss Juror 148 outright, it seems unlikely he suddenly saw no point in conducting an inquiry into the matter. What seems far more likely is that he viewed the court's unequivocal statement that it saw no point in conducting any further inquiry as an indication it would be fruitless to ask.
Second, and more significant, it appears that once a court becomes aware of facts sufficient to call into question a juror's impartiality, the court is obligated to investigate even absent any request by counsel to do so. "[O]nce a juror's [ability to perform his or her duty] is called into question, a hearing to determine the facts is clearly contemplated. [Citations.] Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review." (People v. Burgener (1986) 41 Cal.3d.505, 519-520, disapproved of on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 756; People v. Keenen, supra, 46 Cal.3d at p. 532 ["The law is clear . . . that the court must investigate reports of juror misconduct to determine whether cause exists to replace an offending juror with a substitute"].) In this case, it was the court itself that first became aware of the incident reported by Juror 148; the court then shared the information with counsel. Thus, the court was obligated to engage in whatever remedial activity was called for.
We consequently turn to the merits of whether the court erred by failing to conduct an inquiry. The decision whether to do so, like the ultimate decision to retain or discharge a juror, "rests within the sound discretion of the trial court." (People v. Ray (1996) 13 Cal.4th 313, 343.)
As explained in People v. Ray, supra, 13 Cal.4th at p. 343, a hearing to investigate possible juror bias is required "only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his duties and would justify his removal from the case." However, the incident described by Juror 148, which was apparently assumed by both the court and counsel to have occurred, did not rise to that level. While unusual, the juror's encounter with the young woman who had been attending the trial was neither threatening nor intimidating. It conveyed nothing beyond the fact that the young woman supported Boykin. The young woman backed off from her declaration of support when she appeared to recognize Juror 148, and then departed. The juror then resumed reading a book, and later properly reported the incident to the court without indicating any concern about it. None of that suggested that Juror 148 might have lost the ability to be impartial. Although the court certainly could have conducted some further inquiry, no further action on the court's part was required.
2. Conviction on Two Counts of Oral Copulation with Jane Doe 1
Boykin also contends the evidence was insufficient to sustain his conviction on more than one count of forcible oral copulation involving Jane Doe 1. Specifically, he argues there is no substantial evidence to support the conclusion that Jane Doe 1 orally copulated him once, stopped to ask his name, and then orally copulated him a second time after he told her his name started with "R."
The relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) Consequently, "[a] reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Ibid.)
Boykin acknowledges that Jane Doe 1's statement to the police, in which she described two distinct incidents of oral copulation, is part of the evidentiary record. However, he argues that "a rational trier of fact" could not "conclude that the police report accurately reflects [what occurred]" because Jane Doe 1 herself undermined its credibility by not only failing to recall at trial the two separate incidents of oral copulation that it describes, but also by disagreeing with several other details contained in the report when she reviewed it just prior to trial.
For example, while the report stated Jane Doe 1 saw the suspect place a knife in his pocket, she testified she had no recollection of actually seeing the knife. The report also stated Jane Doe 1 never "punched or kicked the suspect," but she felt that statement was somewhat misleading in its suggestion she had not resisted because she recalled pulling and pushing to get away. She testified that she had made it clear to the officer taking her statement that she and the suspect engaged in a struggle after she was able to get out of the car.
Boykin also emphasizes the police officer who took Jane Doe 1's statement testified that he did not record it, and he wrote the report a few hours later. Thus, Boykin suggests the officer's recollection of what she described was questionable.
All of that may be true, as far as it goes, but it doesn't go very far. "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt . . . .'" (Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) We do not reweigh the credibility of witnesses presented to the jury. (People v. Gomez (2018) 6 Cal.5th 243, 278 ["our task is not to resolve credibility issues or evidentiary conflicts"].) Thus, while Boykin's arguments were ripe to raise issues for the jury, in the hope the jury might choose to disregard the police report, those points are ineffective on appeal. We cannot second-guess the jury's apparent determination that the police report was both credible and persuasive in its description of the two incidents of oral copulation. We consequently reject Boykin's substantial evidence challenge.
3. Imposition of Assessment Fees and Restitution Fines without Determining Ability to Pay
Finally, Boykin contends, based on Dueñas, that the judgment must be reversed because the trial court denied him due process by imposing court fees and a restitution fine without first determining he had the present ability to pay them. We conclude Dueñas is distinguishable and consequently reject the contention.
Dueñas is a case in which the defendant, a probationer who suffered from cerebral palsy, was unemployed, homeless, and the mother of young children, had pleaded no contest to her fourth charge of driving with a suspended license. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas's license had been suspended years earlier because "she could not afford to pay the $1,088 she was assessed for [three juvenile] citations," and she "was unable to have her driver's license reinstated because she could not afford the fees." (Id. at p. 1161.)
As a consequence of Dueñas's three earlier convictions for driving with a suspended license, plus one conviction for failing to appear on a charge of driving without a license, she had been assessed additional court fees (and in one case, attorney fees), which she also could not pay. Those debts were the subject of enforcement efforts by collection agencies. Additionally, Dueñas had been sentenced to 90 days in jail for driving with a suspended license, plus a total of 51 days she had served across the four cases, as an alternative to the imposition of even more fines. Thus, as the appellate court summed up, "Dueñas was sentenced to 141 days in jail for driving with a driver's license that had been suspended because she had been unable to pay her juvenile citations." (Dueñas, supra, 30 Cal.App.5th at p. 1161.) In short, Dueñas found herself deep within a cycle of repeated penal consequences, all of which stemmed from her initial inability to pay fines assessed while she was still a juvenile.
At her sentencing on the most recent charge, Dueñas objected on due process grounds to the trial court's imposition of a $30 court facilities assessment, a $40 court operations assessment, and a statutory minimum $150 restitution fine. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) "The court concluded that the $30 court facilities assessment under Government Code section 70373 and $40 court operations assessment under . . . section 1465.8 were both mandatory regardless of [her] inability to pay them" (id. at p. 1163), and that she failed to show "'compelling and extraordinary reasons' required by statute [citation] to justify waiving [the $150] fine. The court rejected Dueñas's constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments." (Ibid.)
The appellate court reversed, finding that it was a denial of due process to impose further fees and fines on a person with the demonstrated inability to pay them. In reaching its conclusion, the court pointed out "this matter 'doesn't stem from one case for which she's not capable of paying the fines and fees,' but from a series of criminal proceedings driven by, and contributing to, Dueñas's poverty." (Dueñas supra, 30 Cal.App.5th at p. 1164.) As the court explained, it was Dueñas's poverty that caused her to lose her driver's license, and "as a result, Dueñas now has four misdemeanor convictions for driving without a valid license. These, in turn, have occasioned new fines, fees, and assessments that she is unable to pay. [Thus], the repeat criminal proceedings have caused her financial obligations to 'snowball.'" (Ibid.)
The Dueñas court's ultimate concern was not the initial imposition of fees and fines, but the deleterious consequences that the court presumed would necessarily flow from the defendant's inability to pay them. (Dueñas, supra, 30 Cal.App.5th at p. 1165.) The court reasoned that imposing fees on defendants who cannot pay them effectively transforms "a funding mechanism for the courts into additional punishment for a criminal conviction." (Id. at pp. 1165, 1168.)
Hence, it was the court's belief that a defendant's inability to pay the fees and fines—i.e., the defendant's poverty—would result in additional punishment which caused the Dueñas court to conclude that under both the California and United States Constitutions, "due process of law requires [a] trial court to conduct an ability to pay hearing . . . before it imposes court facilities and court operations assessments." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court also applied a similar reasoning to restitution fines imposed pursuant to section 1202.4, explaining that while "section 1202.4 bars consideration of a defendant's ability to pay [the restitution fine] unless the judge is considering increasing [it] over the statutory minimum," due process requires that "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 fine. (Dueñas, at p. 1164.)
The consequences that concerned the Dueñas court included not only the possibility of additional incarceration in lieu of payment, but also various civil impairments: "[C]riminal 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. "What at first glance appears to be easy money for the state can carry significant hidden costs—both human and financial—for individuals, for the government, and for the community at large. . . . [¶] . . . Debt-related mandatory court appearances and probation and parole conditions leave debtors vulnerable for violations that result in a new form of debtor's prison. . . . Aggressive 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.]'" (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
These are serious concerns. But we don't find them pertinent to this case. Boykin has been sentenced to prison for a term of 56 years to life, not to probation. His ability to legally drive during his service of that sentence is not an issue. Moreover, there is nothing in this record to suggest that Boykin's credit rating, job prospects, child support obligations or any other aspect of his life will be materially affected by his potential inability to pay these fees and fines. Instead, the responsibility for collecting his fees and fines has been assigned to the Department of Corrections and Rehabilitation, which can collect them from any wages he may earn in prison or funds available in his prison trust account. (§ 2085.5.) Because Boykin has made no showing—nor even any claim—that he is likely to suffer any significant consequences for non-payment of the fees and fines that were discussed in Dueñas, we conclude the case has no application here.
But even if we concluded Dueñas were applicable to these facts, we would nonetheless deny relief to Boykin at this point. The Dueñas court based much of its reasoning on the belief that a defendant's inability to pay fees and fines would necessarily result in additional punishment, without regard to whether the nonpayment was willful. In People v. Belloso (2019) 42 Cal.App.5th 647, the Dueñas court reiterated that belief, stating that a defendant granted probation who is unable to pay a restitution fine would, as a consequence, "'through no fault of his or her own . . . [be] 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.'" (Belloso, at p. 655; quoting Dueñas, supra, 30 Cal.App.5th at pp. 1170-1171.) We believe that assertion begs the question: would the defendant, who has demonstrated an inability to pay by the deadline, rather than a mere unwillingness to comply, necessarily be punished in that way? In Dueñas, the trial court's order specified that if the defendant did not pay within the specified period (three years), "[t]hose [sums] will go to collections without any further order from this court"—thus automatically triggering the civil consequences for nonpayment that were lamented by the appellate court. (Dueñas, at p. 1163.) But such a self-executing order is not required; and it may be that provision, rather than the imposition of the fees and fines initially, that is at the heart of the problem.
As other courts have pointed out, since it is the additional punitive consequences—rather than the initial imposition of the fees or fines—which create the due process concern, the proper remedy may be to instead provide the defendant with the opportunity to demonstrate, before those further consequences are triggered, that his or her failure to pay was not a willful one. (See People v. Hicks (2019) 40 Cal.App.5th 320, 329; In re M.B. (2020) (44 Cal.App.5th 281, 284) ["the time for a financial hearing should be when someone tries to enforce compliance with a 'criminal' sanction. At that time, inability to pay by reason of indigency is a relevant consideration"].) We agree with this analytical approach to the issue.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.