Opinion
C087065
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL FLORES ESPINOZA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFE20160015421)
Following a trial, a jury found defendant Gabriel Flores Espinoza guilty of multiple crimes arising from his repeated sexual assault of his girlfriend's child. He was sentenced to a total indeterminate term of 25 years to life plus a determinate term of 13 years in state prison. On appeal, he contends: (1) because the trial court did not orally impose a sex offender fine pursuant to Penal Code section 290.3, the fine must be stricken; and (2) the imposition of the restitution fine and court fees violates his constitutional rights because there was no determination of his ability to pay them. We shall direct the trial court to strike the sex offender fine from the minute order and abstract of judgment. We otherwise affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Due to the limited nature of the claims on appeal, we need not recite defendant's crimes in any detail. It suffices to say that defendant committed multiple sexual acts upon a child under the age of 10 and threatened to kill the child's mother when his conduct was discovered. Following a trial, a jury found defendant guilty of one count of sexual intercourse or sodomy with a child 10 years of age or under (§ 288.7, subd. (a)), three counts of lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a)), and one count of criminal threats (§ 422, subd. (a)). The jury further found true an allegation that defendant personally used a knife in the commission of the offense of making criminal threats (§ 12022, subd. (b)(1)). The trial court sentenced defendant to a total indeterminate term of 25 years to life plus a determinate term of 13 years for an aggregate term of 38 years to life in state prison. The court then imposed various fines and fees, including a restitution fine in the amount of $300, a $40 court operations fee, and a $30 criminal conviction assessment fee. The court did not orally impose a sex offender fine under section 290.3 during sentencing; however, the minute order reflects the imposition of a $300 fine for a "first conviction PC 290 offense."
DISCUSSION
I
Imposition of Sex Offender Fine
Defendant contends, and the Attorney General concedes, that because the trial court did not orally impose a sex offender fine pursuant to section 290.3, the minute order and abstract of judgment should be amended to strike the $300 sex offender fine. We accept the Attorney General's concession.
Generally, when there is a discrepancy between the oral pronouncement of judgment and the minute order of the judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) Here, the court's oral pronouncement did not include imposition of the sex offender fine under section 290.3, and the discrepancy between the oral pronouncement of judgment and the minute order and abstract of judgment is resolved in favor of the court's oral pronouncement. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385-386.) "[T]he trial court's failure to impose a sex offender fine pursuant to section 290.3 is not an unauthorized sentence subject to correction on appeal absent an objection by the People in the trial court." (People v. Burnett (2004) 116 Cal.App.4th 257, 260.) Because the People did not object below, we must instruct the trial court to amend the minute order and abstract of judgment to strike the section 290.3 fine.
II
Imposition of Restitution Fine and Court Fees
In a supplemental brief filed with this court's permission following the Second Appellate District, Division Seven's recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant argues imposition of the following fines and fees violated his constitutional rights because the trial court did not determine his ability to pay before imposing them: (1) a restitution fine of $300 (§ 1202.4), (2) a court operations assessment of $40 (§ 1465.8), and (3) a criminal conviction assessment of $30 (Gov. Code, § 70373). He asks this court to remand to the trial court with instructions to determine his ability pay each of these fines and fees. The Attorney General responds by arguing this claim is forfeited by defendant's failure to raise the issue of his ability to pay below and, in any event, any due process violation was harmless beyond a reasonable doubt. Assuming, without deciding, defendant's challenges to the restitution fine and other fees have not been forfeited, we conclude Dueñas was wrongly decided and therefore reject defendant's claim on that basis. A. Dueñas
In Dueñas, the defendant (Dueñas) was an indigent and homeless young mother with cerebral palsy who pleaded no contest to driving with a suspended license, a crime she committed after losing her license because she was unable to pay certain fines associated with three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The trial court placed Dueñas on probation and, among other things, imposed various mandatory fines and fees. (Id. at pp. 1161-1162.) Dueñas asked the trial court to set a hearing to determine her ability to pay. (Id. at p. 1162.) At the hearing, the trial court found Dueñas lacked an ability to pay but nevertheless confirmed imposition of court facilities and court operations assessments, noting both were "mandatory regardless of Dueñas's inability to pay them," and also confirmed imposition of a restitution fine in the minimum amount, finding "Dueñas had not shown the 'compelling and extraordinary reasons' required by statute (Pen. Code, § 1202.4, subd. (c)) to justify waiving this fine." (Dueñas, at p. 1163.) The trial court also rejected Dueñas's constitutional arguments that due process and equal protection prohibited imposition of these fines and fees without a determination that she possessed the ability to pay them. (Ibid.)
Our colleagues at the Second Appellate District reversed. With respect to the court facilities and court operations assessments, the court held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes [these] assessments." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the constitutional guarantees of due process and equal protection prohibit a state from "inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Id. at p. 1166, citing Griffin v. Illinois (1956) 351 U.S. 12, 17 [100 L.Ed. 891, 898] (Griffin).) Analogizing the imposition of these mandatory assessments, without first determining an ability to pay to the situation in which a convicted defendant is required to serve jail time if he or she is unable to pay a fine and penalty assessment (invalidated by our Supreme Court in In re Antazo (1970) 3 Cal.3d 100, 103-104 (Antazo)) and the situation in which an indigent convicted defendant's probation is automatically revoked upon his or her failure to pay a fine and restitution (invalidated by the United States Supreme Court in Bearden v. Georgia (1983) 461 U.S. 660, 667-668 [76 L.Ed.2d 221, 229-230] (Bearden)), the court stated: "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive. A fine on indigent people 'is not imposed to further any penal objective of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose; the defendant cannot pay because he is indigent . . . .' [Citations.] Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money." (Dueñas, at p. 1167.) The court concluded such a burden "in effect transform[s] a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.)
With respect to the minimum restitution fine, the court held imposition of this fine without first determining ability to pay, while done in accordance with the statutory scheme, also violated due process; execution of such a fine "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, supra, 30 Cal.App.5th at p. 1164.) The court noted the restitution fine is recognized to be "additional punishment for a crime" and concluded the statutory prohibition on considering ability to pay when imposing the minimum fine is fundamentally unfair because it "punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.) B. No Constitutional Violation
Reactions to the new constitutional principle articulated in Dueñas have been mixed. Although many courts have followed its reasoning, others have distinguished (see People v. Caceres (2019) 39 Cal.App.5th 917) or disagreed with the opinion (see People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068). We join the latter group and limit our discussion of the matter to rejecting Dueñas outright.
In Hicks, our colleagues at the Second Appellate District, Division Two rejected the Dueñas court's reliance on "two strands of due process precedent" in "fashioning" a new constitutional principle requiring an ability to pay determination before imposing the fine and assessments challenged therein. (Hicks, supra, 40 Cal.App.5th at p. 326, rev. granted.) The first strand, starting with Griffin, supra, 351 U.S. at p. 17, "secures a due process-based right of access to the courts." (Hicks, at p. 325, original italics.) This strand of precedent, however, "does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Id. at p. 326.) The second strand of due process precedent relied upon by the Dueñas court (see, e.g., Antazo, supra, 3 Cal.3d 100 and Bearden, supra, 461 U.S. 660, described ante) "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, at p. 325.) This strand "also does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Id. at p. 326.)
Finally, the Hicks court also concluded Dueñas erred in expanding due process protections in the manner it did, explaining: "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them. Our Supreme Court in Antazo, supra, 3 Cal.3d 100, expressly declined to 'hold that the imposition upon an indigent offender of a fine [or] penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.' [Citation.] Antazo refused to prohibit the imposition of fines and assessments upon indigent defendants for good reason, which the United States Supreme Court explained best: 'The State . . . has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,' such that '[a] defendant's poverty in no way immunizes him from punishment.' (Bearden, supra, 461 U.S. at pp. 669-670.) To confer such an immunity, that court has said, 'would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other . . . .' (Williams[ v. Illinois (1970)] 399 U.S. [235,] 244 [].) By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision). What is more, Dueñas mandates the very type of 'inverse discrimination' condemned by the court in both Bearden and Williams." (Hicks, supra, 40 Cal.App.5th at p. 327, rev. granted.)
We agree with the Hicks analysis in its entirety. The strands of precedent relied upon by the Dueñas court in expanding due process protections to require an ability to pay determination before imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, such an expansion. Imposition of the challenged financial obligations has not deprived defendant of access to the courts. Nor has defendant been incarcerated because of his inability to pay. There was no due process violation.
DISPOSITION
The trial court is directed to prepare an amended minute order and amended abstract of judgment reflecting that the $300 sex offender fine pursuant to section 290.3 is stricken. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
RENNER, J.