Opinion
D073103
06-04-2019
The PEOPLE, Plaintiff and Respondent, v. Salvador R. GUTIERREZ, Defendant and Appellant.
Nancy J. King and Laura G. Schaefer, San Diego, 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, Melissa Mandel, Alana Butler and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of the Factual and Procedural Background, and parts I and II.A. of the Discussion.
Nancy J. King and Laura G. Schaefer, San Diego, 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, Melissa Mandel, Alana Butler and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
HALLER, J. A jury convicted defendant Salvador R. Gutierrez of nine counts of committing lewd and lascivious acts upon a child ( Pen. Code, § 288, subd. (a) ). In a bifurcated proceeding, the court found true that defendant had been convicted of two serious felonies (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)) and two prior strike offenses (§§ 667, subds. (b)-(i), 668 & 1170.12), and found one of defendant's prior convictions brought him within the One Strike law (§ 667.61, subds. (a), (c), and (d).) The court thus sentenced defendant to 205 years to life in state prison.
All further statutory references are to the Penal Code.
Defendant appealed, arguing (1) his counsel was ineffective for failing to object to the use of an Arizona conviction for impeachment purposes because it was not a crime of moral turpitude, and (2) the court violated his Sixth Amendment right to a jury trial when it determined that this child molestation conviction constituted a serious felony and strike prior under California law because the court had made factual findings regarding the underlying offense. As set forth in People v. Gutierrez (May 22, 2017, DO69706 [nonpub. opn.], 2017 WL 2224358 (Gutierrez I )), we rejected defendant's first argument, but agreed with his second, finding a lack of substantial evidence to support the court's finding that his Arizona conviction constituted a serious felony or strike prior under California law. We remanded the case for resentencing, and affirmed the judgment in all other respects.
At resentencing, the court imposed on defendant a revised term of 35 years plus 100 years to life in prison, as explained post.
In the instant appeal, defendant contends for the first time that his new sentence constitutes cruel and unusual punishment because at the age of about 69 (when he filed his opening brief), the court's sentence means "he will die in prison before he even complet[es] the determinate part of his sentence." Defendant contends his sentence " ‘shocks the conscience and offends fundamental notions of human dignity’ [citation]" because he committed the offenses for which he is being punished about "10 to 15 years" ago, which punishment "was enhanced due to an offense [he] committed in 1988."
As we explain, we conclude defendant forfeited this claim by his failure to raise it either in connection with Gutierrez I or in the trial court following remand. However, to forestall a claim of ineffective assistance of counsel with respect to this specific issue, we further conclude defendant's sentence does not violate either the federal or state constitutional prohibition on cruel and/or unusual punishment.
Defendant in an April 8, 2019 petition for rehearing (petition) alleged that remand was necessary to allow the court to exercise its discretion and determine whether to dismiss one or more of the five-year enhancements imposed under section 667. He also alleged for the first time that the court erred in imposing various fines, fees, and assessments without first affording him a separate ability-to-pay hearing, in reliance on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1160, 242 Cal.Rptr.3d 268 ( Dueñas ). We granted the petition and, on this court's own motion, invited the parties to file supplemental letter briefs addressing only whether defendant was entitled to such a hearing under Dueñas , or whether defendant has forfeited this issue based on his failure to raise it in the trial court, both in connection with the instant appeal and in Gutierrez I . The parties submitted supplemental letter briefs, which we have read and considered.
As we explain, we remand solely for the court to exercise its discretion and determine whether to impose one or more of the five-year enhancements under section 667. In all other respects (including with respect to the imposition of fines, fees, and assessments), the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
See footnote *, ante .
DISCUSSION
See footnote *, ante .
II
Petition
See footnote *, ante .
B. Imposition of Fines, Fees, and Assessments
Briefly, in Gutierrez I the trial court imposed without objection a $10,000 restitution fine ( § 1202.4, subd. (b)(1) ) and a suspended matching parole revocation fine ( § 1202.45 ). The court then stated it "finds the defendant has the financial ability to pay the court security fee of [$]360 [( § 1465.8 )], the ICNA [i.e., Immediate Critical Needs Account] fee of [$]270 [( Gov. Code, § 70373 ), a] Criminal Justice fee of [$]164 [( Gov. Code, § 29550.1 ), and a] sex registration fee of $500 [( § 290.3 )]." Defendant also did not object to the imposition of these fees.
Following People v. Gutierre z (May 22, 2017) 2017 WL 2224358 ( Gutierrez I ), the court at resentencing again imposed without objection a $10,000 restitution fine and a suspended matching parole revocation fine, a $360 court security fee, a $270 ICNA fee, a $154 criminal justice administration fee, and a $500 sex registration fee. As noted, defendant first raised the issue of his alleged inability to pay these fines and fees in his petition, relying on Dueñas, supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268.
The criminal justice administration fee imposed by the court on remand was $10 less than the fee it had previously imposed in Gutierrez I pursuant to Government Code section 29550.1.
In Dueñas , the defendant at sentencing objected on due process grounds to the trial court's imposition of a $30 court facilities assessment ( Gov. Code, § 70373 ), a $40 court operations assessment ( § 1465.8 ), and a statutory minimum $150 restitution fine ( § 1202.4, subd. (b)(1) ). ( Dueñas, supra , 30 Cal.App.5th at p. 1162, 242 Cal.Rptr.3d 268.) The defendant in Dueñas was a probationer who suffered from cerebral palsy, was indigent, homeless, and the mother of young children. The court agreed to, and held, a separate inability-to-pay hearing as requested by the defendant.
The trial court at that hearing considered the defendant's "uncontested declaration concerning her financial circumstances, determined that she lacked the ability to pay the previously ordered attorney fees, and waived them on the basis of her indigence. 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" ( Dueñas, supra , 30 Cal.App.5th at p. 1163, 242 Cal.Rptr.3d 268 ), and that she failed to show " ‘compelling and extraordinary reasons’ required by statute ( Pen. Code, § 1202.4, subd. (c) ) 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 ...." ( Dueñas , at p. 1163, 242 Cal.Rptr.3d 268.)
In reversing, the Dueñas court concluded that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under ... section 1465.8 and Government Code section 70373" ( Dueñas, supra , 30 Cal.App.5th at p. 1164, 242 Cal.Rptr.3d 268 ); and that, "although ... section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." ( Ibid. )
The application of Dueñas has been addressed in several recent cases. In People v. Castellano (2019) 33 Cal.App.5th 485, 245 Cal.Rptr.3d 138 ( Castellano ), the same division of the Second Appellate District that filed Dueñas applied its holding to a defendant who had been assessed various court fees and the statutory minimum restitution fine. ( Castellano , at pp. 488-489, 245 Cal.Rptr.3d 138.) In doing so, the court explained that a defendant must "in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." ( Id. at p. 490, 245 Cal.Rptr.3d 138.) It held, however, that the defendant's failure to object to the fine and fees before Dueñas was decided was not a forfeiture of the issue because Dueñas was "a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial." ( Castellano , at p. 489, 245 Cal.Rptr.3d 138.) More recently in People v. Johnson (2019) 35 Cal.App.5th 134, 247 Cal.Rptr.3d 1 ( Johnson ), the court agreed with Castellano on the forfeiture issue, commenting "we are hard pressed to say [the Dueñas ] holding was predictable and should have been anticipated." ( Johnson , at p. 138, 247 Cal.Rptr.3d 1, fn.,omitted.)
Because we resolve this issue on forfeiture grounds, we express no opinion on whether Dueñas was correctly decided.
In People v. Frandsen (2019) 33 Cal.App.5th 1126, 245 Cal.Rptr.3d 658 ( Frandsen ) the court took a different approach on forfeiture. There, the trial court assessed various fees totaling $120 and imposed a statutory maximum $10,000 restitution fine. The appellate court first rejected the defendant's contention that his Dueñas -based challenge to the fine and fees presented a purely legal claim that could be raised for the first time on appeal. ( Frandsen , at p. 1153, 245 Cal.Rptr.3d 658.) It likewise found unpersuasive the argument that Dueñas was unforeseeable. ( Frandsen , at p. 1154, 245 Cal.Rptr.3d 658.) Finally it noted that an objection would not have been futile because even pre- Dueñas governing law permitted a challenge to a maximum restitution fine based on ability-to-pay grounds. ( Frandsen , at p. 1154, 245 Cal.Rptr.3d 658.)
We find it unnecessary to address any perceived disagreement on the forfeiture issue between Frandsen on one hand and Castellano and Johnson on the other. Both Castellano and Johnson involved situations in which the trial court imposed the statutory minimum restitution fine. ( Castellano, supra , 33 Cal.App.5th at p. 488, 245 Cal.Rptr.3d 138 ; Johnson, supra , 35 Cal.App.5th at pp. 137-138 and fn. 5, 247 Cal.Rptr.3d 1.) In this case, as in Frandsen , the trial court imposed the statutory maximum restitution fine. And as Frandsen correctly notes, even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute ( § 1202.4, subd. (c) ) expressly permitted such a challenge. ( Frandsen, supra , 33 Cal.App.5th at p. 1154, 245 Cal.Rptr.3d 658.)
On two separate occasions, Gutierrez had the statutory right to request that the court consider his ability to pay in setting the restitution fine, but he did not do so. His silence is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas . (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864, 182 Cal.Rptr.3d 137, 340 P.3d 366 [applying the forfeiture rule to challenges to probation-related costs and an order for reimbursement of fees paid to appointed trial counsel]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854, 182 Cal.Rptr.3d 143, 340 P.3d 371 [applying the forfeiture rule to an unpreserved claim regarding probation-related fees and defendant's inability to pay them]; People v. Nelson (2011) 51 Cal.4th 198, 227, 120 Cal.Rptr.3d 406, 246 P.3d 301 [defendant's claim that the trial court erred by failing to consider ability to pay a restitution fine is forfeited by the failure to object].) Thus, even if Dueñas was unforeseeable (a point on which we offer no opinion), under the facts of this case Gutierrez forfeited any ability-to-pay argument regarding the restitution fine by failing to object.
The same is true of the fees the court imposed. As a practical matter, if Gutierrez chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees. Moreover, at the time of sentencing the court relied on trial testimony and the probation report to make a factual finding that "defendant has the financial ability to pay" these fees. Gutierrez did not object, a decision that is understandable in view of his lengthy employment history, including service as an aircraft mechanic, manager of retail tuxedo shops and, at the time of trial, 12 years' experience operating a taco shop.
Gutierrez also forfeited the right to challenge the imposition of the sex registration fee. That statute authorizes the court to consider ability to pay, the court found he had the ability to pay, and he failed to object.
DISPOSITION
The matter is remanded only for resentencing to allow the court to consider whether it should strike one or more of defendant's serious prior felonies on which the enhancements imposed under section 667, subdivision (a)(1) are based. In all other respects, the judgment—including all fines, fees, and assessments imposed by the trial court—is affirmed.
We note that defendant in his supplemental briefing argued that, if the issue of inability to pay is deemed forfeited, as we have concluded, he was deprived effective assistance of counsel based on his counsel's failures to object to the section 1202.4 restitution fine. We decline to reach this issue on this record, without prejudice to defendant raising the ineffective assistance of counsel issue in a separate proceeding, if he so chooses.
I CONCUR:
DATO, J.
BENKE, J., concurring in part.
Defendant in his petition relied on People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), this time seeking an ability-to-pay hearing despite twice failing to object to the imposition of the fines and fees. The majority finds the various fines and fees imposed on defendant at resentencing were not improper. I agree with the majority's conclusion. I write separately, however, because I disagree with the majority's reasoning in support of its conclusion. More fundamentally I write to express my disagreement with Dueñas , which I believe misapplies California's statutory law and erroneously selects a general due process and equal protection theory as the basis for its decision. I instead believe that the Eighth Amendment to the United States Constitution offers a more proper basis for determining when a fine or fee exceeds constitutional limits, to the extent such an analysis is necessary.
The Majority Opinion
As noted, the record shows defendant did not object either in Gutierrez I , or on remand from that appeal, to the imposition of the following fines and fees: a $10,000 restitution fine ( Pen. Code, § 1202.4, subd. (b)(1) ) and a suspended matching parole revocation fine ( § 1202.45 ); a $360 court security fee ( § 1465.8 ); a $270 Immediate and Critical Needs Account fee ( Gov. Code, § 70373 ); a $154 criminal justice administration fee ( Gov. Code, § 29550.1 ); and a $500 sex offender registration fee ( § 290.3 ).
Further statutory references are to the Penal Code unless otherwise stated.
The record shows the People called Catherine McLennan to testify as an expert witness. McLennan, who estimated she had conducted over 3,000 forensic interviews (as of 2015), opined there was "pretty universal agreement" among experts that the "majority" of children "most commonly delay disclosing when they have been sexually abused." McLennan further opined that it was "unusual" in child sexual abuse cases for there to be an "immediate" report; and that on one end of the spectrum, children are much more likely to disclose immediately if they have been abused by a stranger. In that instance, there "are few repercussions, fewer possible negative outcomes for that child in telling. They don't know the person. They're not bonded to them. They're not telling on somebody that they care about. It's not likely to have a big impact on that child's life to tell." On the other end of the spectrum, McLennan noted that if the child is abused by a caretaker, a parent, or a "parent figure, there's a huge bond. There's a huge possible allegiance or loyalty to that individual. There is a perception on the child's part that if they tell on this person, who's very close to them, there's very likely to be some changes in their lives, and some of those are viewed by the child as not necessarily positive."
The majority expresses no opinion on whether Dueñas was properly decided (fn. 11), but instead finds the case inapplicable because the trial court here imposed a restitution fine under section 1202.4, subdivision (b)(1) above the statutory minimum, and thus, defendant, unlike Ms. Dueñas, had the right under subdivision (c) of this statute to object on inability-to-pay grounds.
San Diego Police Department detective Wendy Valentin testified that she worked in the sex crimes unit in 2008; that she received a "courtesy report from the Riverside Sheriff's Department and a CPS referral" about a "late disclosure that a victim at the age of 15 had reported that her maternal grandfather had molested her"; that Detective Valentin first spoke to Paula, then to Raquel, on the telephone; that Raquel was unsure if she wanted the police involved; and that as she was starting her investigation she learned the alleged abuse did not take place in the City of San Diego, but instead within the jurisdiction of the San Diego County Sheriff's Department. Detective Valentin thus forwarded her October 2008 report and the information she had received from Riverside to the sheriff's department in the City of Lemon Grove, for it to continue the investigation. In 2011, Detective Valentin transferred to the homicide unit. Sometime thereafter she spoke to Paula, who wanted to know the status of the case involving her daughter. Detective Valentin instructed Paula to call the sheriff's department, as the detective then knew nothing about the status of the case.
The majority goes on to find that, as a result of section 1202.4, subdivision (c), defendant's failure to object to the restitution fine constituted a forfeiture irrespective of Dueñas . On that basis, the majority also finds that, if defendant did not object based on inability to pay the $10,000 restitution fine, he certainly could not complain about the remaining fees, which collectively were substantially less than the restitution fine; and that, in any event, the trial court made a finding defendant had the ability to pay.
Dueñas and its Constitutional Underpinning
Unlike the majority, I am not certain that Dueñas can be so easily dismissed. Dueñas involved unique facts that have been well-documented by others, so I will refrain from repeating them here. But the directive of Dueñas is clear: "due process of law requires the trial court to conduct an inability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under ... section 1465.8 and Government Code section 70373" ( Duenas, supra , 30 Cal.App.5th at p. 1164, 242 Cal.Rptr.3d 268, italics added); and that, "although ... section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." ( Ibid. , italics added.)
In support of its reasoning, the Dueñas court relied on Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 ( Griffin ) and related case law. It also cited several Government Code sections in concluding our Legislature also "has recognized the deleterious impact of increased court fees on indigent people" (Dueñas, supra , 30 Cal.App.5th at p. 1165, 242 Cal.Rptr.3d 268 ); further noting as follows on this point: "The Legislature has declared that ‘our legal system cannot provide "equal justice under law" unless all persons have access to the courts without regard to their economic means. California law and court procedures should ensure that court fees are not a barrier to court access for those with insufficient economic means to pay those fees.’ ( Gov. Code, § 68630, subd. (a).) The Legislature has also declared that ‘fiscal responsibility should be tempered with concern for litigants' rights to access the justice system. The procedure for allowing the poor to use court services without paying ordinary fees must be one that applies rules fairly to similarly situated persons, is accessible to those with limited knowledge of court processes, and does not delay access to court services.’ ( Gov. Code, § 68630, subd. (b).)
"Accordingly, the Legislature has provided for fee waivers for indigent litigants at the trial and appellate court levels that excuse them from paying fees for the first pleading or other paper, and other court fees and costs, including assessments for certain court investigations. ( Gov. Code, § 68631.) Government Code section 68632 grants permission to proceed without paying costs to those receiving certain public assistance benefits, to those whose monthly income is 125 percent or less of government poverty guidelines, and to those who ‘cannot pay court fees without using moneys that normally would pay for the common necessaries of life for the applicant and the applicant's family.’ ( Gov. Code, § 68632, subds. (a) - (c).)
"While this protective mechanism lessens the disproportionate burden that these fundraising fees present to indigent litigants in the civil context, the Legislature neither instituted nor rejected a corresponding safeguard for assessments attached to a criminal conviction. Both Government Code section 70373 and ... section 1465.8 are silent as to the consideration of a defendant's ability to pay in imposing the assessments." ( Dueñas, supra , 30 Cal.App.5th at pp. 1165–1166, 242 Cal.Rptr.3d 268, italics added, fn. omitted.)
After additional policy discussion, the Dueñas court concluded the assessment provisions of Government Code section 70373 and section 1465.8, "if imposed without a determination that the defendant is able to pay, are thus fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution. ( U.S. Const. 14th Amend.; Cal. Const., art. I, § 7.) These fees, assessed as part of a larger statutory scheme to raise revenue to fund court operations, should be treated no differently than their civil counterparts enacted in the same legislation and imposed only on those with the means to pay them. [Citation.]" ( Dueñas, supra , 30 Cal.App.5th at pp. 1168–1169, 242 Cal.Rptr.3d 268, fn. omitted.)
Dueñas and its Repercussions
Since Dueñas was decided, this court has been flooded with petitions for rehearing and requests to submit supplemental briefing on the issue of ability to pay fines and fees imposed on defendants. Defendant in the instant case is no exception. I note new cases, most unpublished, are filed almost daily in which Dueñas 's ability-to-pay hearing is an issue. Some defendants in the first instance are also moving under Dueñas for such relief in the trial courts, despite having pending appeals, and then moving to augment the records on appeal with minute orders showing the trial courts in the first instance granted their " Dueñas motions." (See, e.g., People v. Adame (May 29, 2019), 2019 WL 2281260, *1, fn. 2, 2019 LEXIS 3642, *1, fn. 2.)
Further rule references are to the California Rules of Court.
There has also been a succession of cases analyzing whether a defendant forfeits Dueñas ‘s newly created constitutional right to a preassessment ability-to-pay hearing by failing to make this specific objection in the trial court. Some of the cases have found there was a forfeiture, others have found no forfeiture, and still others have either found Dueñas to be factually distinguishable, or refused to decide the issue altogether, stating that because remand was necessary on another ground, a defendant then could raise the ability-to-pay issue in the trial court. To these cases the majority here adds refusal to apply Dueñas altogether. The result of Dueñas has been neither fair to all appellants nor consistent. I see no reason to refrain from examining its correctness.
Section 667.61 was amended effective January 1, 2019. (Stats. 2018, ch. 423 (Sen. Bill No. 1494), § 68, eff. Jan. 1, 2019.) The amendment made no substantive changes to subdivisions (a), (c), and (d) of former section 667.61, the provisions relied on by the trial court in resentencing defendant. Former section 667.61, subdivision (a) of the One Strike law provides in relevant part that any person "convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) ... shall be punished by imprisonment in the state prison for 25 years to life." Subdivision (c) applies to offenses including "(4) Lewd or lascivious act, in violation of subdivision (b) of [former] Section 288." Subdivision (d) sets out various "circumstances" that "shall apply to the offenses specified in subdivision (c)" including, in part, "(1) The defendant has been previously convicted of an offense specified in subdivision (c) ...."
The record shows defendant's sentence could have been even longer, inasmuch as the court adopted probation's "cautious[ ]" recommendation not to sentence defendant under the One Strike law with respect to count 7—when defendant touched Raquel's vagina with his penis—because of the lack of both a "specific ... time frame" and "information" with respect to this count.
Section 667.5, like section 667.61, was amended effective January 1, 2019. (Stats. 2018, ch. 423 (Sen. Bill No. 1494), § 68, eff. Jan. 1, 2019.)
Dueñas's Analysis is Fundamentally Flawed
Unlike the majority, I instead would conclude the Dueñas decision incorrectly applies California statutes; and in addition, is fundamentally flawed in that general "fairness" grounds of due process and/or equal protection principles do not afford a defendant a preassessment ability-to-pay hearing before a trial court imposes fines and fees on him or her.
First, I believe that in reaching its conclusions, Dueñas by judicial fiat inserted language into statutes that did not exist. That is, I note the adjective "present" used by the Dueñas court in its ability-to-pay analysis is nowhere to be found in Penal Code sections 1202.4 and 1465.8, or in Government Code section 70373. (See Dueñas, supra , 30 Cal.App.5th at p. 1164, 242 Cal.Rptr.3d 268 ; but see Pen. Code, § 987.8 [noting if a defendant is provided legal assistance, following the conclusion of criminal proceedings a court "may, after notice and hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof" (italics added)].)
Perhaps more egregiously, Dueñas in its analysis completely disregarded unambiguous language in subdivision (c) of section 1202.4 stating that inability to pay cannot be considered when only the statutory minimum is imposed, as was the case there. Moreover, by also adding the word "present" to the ability-to-pay analysis with respect to the restitution fine, Dueñas ignored section 1202.4, subdivision (d), which says the exact opposite: "Consideration of a defendant's inability to pay may include his or her future earning capacity. " (Italics added.) A court lacks the power to rewrite a statute either so as to make it conform to a presumed intention that is not stated, or to ignore a statute's plain and unambiguous language. (See People v. Statum (2002) 28 Cal.4th 682, 692, 122 Cal.Rptr.2d 572, 50 P.3d 355.)
I would conclude that, to the extent the Legislature provided such a right, which in the instant case it did with respect to the restitution fine (see § 1202.4, subds. (b)(1) & (c) ) and the sex offender registration fee (see § 290.3, subd. (a) ), a defendant's failure to avail him-or herself of that statutory relief constituted a forfeiture under the "traditional" rule. (See Frandsen, supra , 33 Cal.App.5th at p. 1155, 245 Cal.Rptr.3d 658.)
Although we concluded in Gutierrez I that defendant's Arizona conviction could not be used as a prior serious felony strike in California, it appears that conviction could potentially qualify as a "sex crime" within the meaning of section 137.719(1) of the Oregon code. (See Or. Rev. Stat., § 163A.005, subd. (5) [defining "sex crime" to include (d) "[s]exual abuse in any degree," (g) "[e]ncouraging child sexual abuse in any degree," and/or (n) "[s]exual misconduct if the offender is at least 18 years of age"].)
Second, with regard to the application of general due process and equal protection principles, the heavy reliance Dueñas places on Griffin was, in my view, misplaced. Griffin involved the issue of court access. Specifically, that case concluded that due process and equal protection guaranteed an indigent criminal defendant a free transcript of trial proceedings in order to provide that defendant with access to a court of review, where he would receive an adequate and effective examination of his criminal conviction. ( Griffin, supra , 351 U.S. at p. 16, 76 S.Ct. 585.)
I, for one, do not believe the imposition of the two assessments and one restitution fine on the defendant in Dueñas is an issue of access to our courts or justice system, as was the case in Griffin and similar authorities. Nor do I believe the fines or fees imposed on the defendant in Dueñas satisfied the traditional due process definition of a taking of life, liberty or property.
We noted in Baker that California, among other states, was not an "outlier[ ]" when it came to imposing a harsh punishment on a defendant for engaging in serious sexual misconduct of a child under the age of 14 (i.e., oral copulation with a minor): "Fla. Stat. Ann. §§ 800.04(5)(b) & 775.082(3)(a) 4 [life or 25-year minimum for lewd act on child under 12]; Kan. Stat. Ann. §§ 21-5506(b)(3)(A), 21-6627(a)(1)(C) ; Nev. Rev. Stat. Ann. §§ 201.230(2) , 200.366(1)(b) & (3) [35 years to life for sexual penetration of a child under 14 if no substantial bodily harm; else, life without parole]; Ariz. Rev. Stat. §§ 13-705(A) [life sentence for dangerous crimes against children including sexual conduct with a child under 12]; Mich. Comp. Laws Serv. § 750.520b (1)(a) & (2)(b) ; Miss. Code Ann. §§ 97-3-101(3), 97-3-95(1)(d) ; Neb. Rev. Stat. Ann. § 28-319.01(1)(a) & (2) [15-year minimum for sexual penetration of a child under 12]; R.I. Gen. Laws §§ 37-8.1, 37-8.2 ; S.C. Code Ann. §§ 16-3-651(h), 16-3-655(A)(1), (D)(1) ; Utah Code Ann. § 76-5-403.1(1) & (2)(a) [25 years to life for oral copulation of a child under the age of 14.]" (Baker , at p. 731.)
Likewise, Dueñas ’s citations to multiple provisions of the Government Code do not support its conclusion that our "Legislature has recognized the deleterious impact of increased court fees on indigent people." ( Dueñas, supra , 30 Cal.App.5th at p. 1165, 242 Cal.Rptr.3d 268.) In my view, these statutes instead ensure that all people, without regard to economic status, have equal access to our justice system. Again, in my opinion the imposition of the two assessments and one restitution fine on the defendant in Dueñas was not an issue of access to the courts or our system of justice.
In sum, I find no general due process and equal protection authority which requires a court to conduct a preassessment present ability-to-pay hearing before imposing any fine or fee on a defendant, as Dueñas seems to conclude. On a practical note, it takes little imagination to envision the potential expansion of the holding of Dueñas to a multitude of other fines or fees that were not the subject of that case, or the instant case. One such possible fine is victim restitution, which is encompassed in subdivision (f) of section 1202.4 —one of the same statutes at issue in Dueñas . Although that subdivision expressly requires a court to order "full restitution" to the victim, should the constitutional basis of Dueñas stand, any restitution hearing might require a finding of present ability to pay victim restitution.
Finally, I would further conclude relief from fines or fees based on inability to pay is more properly analyzed under the Eighth Amendment prohibition against excessive fines, fees, and punishment, which analysis I turn to next.
The Excessive Fines Clause
Rejection of the due process and equal protection analysis of Dueñas does not leave parties without recourse if they believe a statutory assessment of fines, fees, and punishment amounts to a constitutional violation as written or applied.
To the extent defendant in the instant case claimed poverty is the "only reason [he] cannot pay the fine[s] and fees," as was the case in Dueñas ( Dueñas, supra , 30 Cal.App.5th at p. 1160, 242 Cal.Rptr.3d 268 ), I would analyze that claim under the excessive fines clauses of both the Eighth Amendment, made applicable to the states through the Fourteenth Amendment, as recently announced by the United Supreme Court in Timbs v. Indiana (2019) ––– U.S. ––––, 139 S.Ct. 682, 203 L.Ed.2d 11, as well as article 1, section 17, of our state constitution.
The Eighth Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Article 1, section 17 of our state Constitution provides, "Cruel or unusual punishment may not be inflicted or excessive fines imposed."
The Eighth Amendment prohibits the imposition of excessive fines. The word "fine," as used in that provision, has been interpreted to be " ‘a payment to a sovereign as punishment for some offense.’ " ( United States v. Bajakajian (1998) 524 U.S. 321, 327–328, 118 S.Ct. 2028, 141 L.Ed.2d 314 ( Bajakajian ).) A fine is excessive for purposes of the Eighth Amendment "if it is grossly disproportionate to the gravity of the defendant's offense." ( Id. at p. 334, 118 S.Ct. 2028.)
Briefly, in Bajakajian the defendant attempted to take $357,144 out of the country, in contravention of federal law requiring any person transporting more than $10,000 out of the United States to file a report with the appropriate government agency. The government in Bajakajian claimed that the entire $357,144 was forfeited. ( Bajakajian, supra , 524 U.S. at p. 325, 118 S.Ct. 2028.)
The high court in Bajakajian pointed out that "[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality." ( Bajakajian, supra , 524 U.S. at p. 334, 118 S.Ct. 2028.) As found by our own high court, Bajakajian "then set out four considerations: (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. " ( People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728, 36 Cal.Rptr.3d 814, 124 P.3d 408 ( R.J. Reynolds ), citing Bajakajian , at pp. 337–338, 118 S.Ct. 2028.) After reviewing those considerations, the Bajakajian court held that the forfeiture of the defendant's currency constituted an excessive fine barred by the Eighth Amendment. ( Bajakajian , at p. 343, 118 S.Ct. 2028.)
I believe the application of an Eighth Amendment analysis allows for consistent and fair review of fines and fees imposed on individuals while they are focused both legally and factually in the trial court, with the appeal process remaining available for review.
In the instant case, with respect to the restitution fine of $10,000 and the sex offender registration fee of $500, I would find that defendant forfeited his statutory right by failing to object to such imposition and make a showing of inability to pay. With respect to the remaining fines and fees, I would find that, to the extent defendant challenged them based only on his indigency, such fines and fees are not "excessive" in violation of the Eight amendment of the federal Constitution, or article 1, section 17 of our state Constitution, based on the Bajakajian "considerations" as identified by our own high court. (See R.J. Reynolds, supra , 37 Cal.4th at p. 728, 36 Cal.Rptr.3d 814, 124 P.3d 408, citing Bajakajian, supra , 524 U.S. at pp. 337–338, 118 S.Ct. 2028.) On this basis, I thus would affirm the fines and fees imposed on defendant in the instant case.