Opinion
C087875
01-13-2020
THE PEOPLE, Plaintiff and Respondent, v. BRITTNEY LYNETTE LOVELING, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF180000779)
Defendant Brittney Lynette Loveling attempted to drive off two pickup trucks without the owner's consent. Defendant agreed to plead no contest to two counts of unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) and admit a prior strike (assault with a deadly weapon, Pen. Code, § 245, subd. (a)(1)), in exchange for which she was given one opportunity to complete a one-year residential rehabilitation program and obtain a grant of probation, for which she would otherwise be ineligible due to the strike. (Cal. Rules of Court, rule 4.413(c); Pen. Code, §§ 667, subd. (c)(2), 1170.12, subd. (a)(2).) If defendant did not complete the rehab program, the trial court stated it would sentence her "straight up."
Defendant was refused admission to the Salvation Army rehab program she chose because of "discrepancies" in her medical and mental health disclosures. The trial court sentenced defendant to the upper term of six years on each vehicle theft count (as doubled by the strike), to be served concurrently. (Veh. Code, § 10851, subd. (a); Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).)
Defendant contends that (1) she was denied due process because she did not breach the plea agreement and the trial court failed to follow the probation revocation procedures set forth in Penal Code section 1203.2 in determining that she did, and (2) sentencing her to prison violated equal protection because she was similarly situated to a probationer but failed to receive the due process protections afforded a probationer.
We conclude defendant's contentions were forfeited by defense counsel's failure to object to the sentence or argue that defendant should be given another chance at rehabilitation. Contrary to defendant's contention, we further conclude that her counsel was not ineffective in failing to object to the trial court sentencing defendant under the terms of the plea agreement when she failed to complete the Salvation Army rehab program.
Defendant also contends that, to extent the trial court sentenced defendant to prison for failing to appear at a review hearing, the court failed to advise her of the right to withdraw her plea pursuant to Penal Code section 1192.5 and failed to obtain a waiver of that right under People v. Cruz (1988) 44 Cal.3d 1247 (Cruz). However, the plea form defendant signed did advise her that she could withdraw the plea if the court disapproved the plea agreement. Moreover, a Cruz waiver was not required because the court did not sentence defendant for failing to appear at a review hearing, but for failing to complete the rehab program.
Finally, defendant contends the court erred in imposing assessments under Penal Code section 1465.8 and Government Code section 70373 and a restitution fine under Penal Code section 1202.4 without conducting a hearing on defendant's ability to pay, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On May 23, 2018, defendant entered a plea of no contest to two counts of violating Vehicle Code section 10851, subdivision (a), and admitted a prior strike, a conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The factual basis for the plea was that, on May 9, 2018, defendant had driven a 1997 Chevrolet and a 1995 GMC Sierra pickup truck without the owner's consent and with the intent to the deprive the owner of possession. The underlying details were that defendant attempted to take the 1997 Chevrolet pickup (with trailer attached), crashed it into a fence, and was unable to get free. Defendant left that truck and attempted to drive away in the 1995 GMC Sierra pickup belonging to the same owner but was blocked by the owner and his brother.
Vehicle Code section 10851, taking or driving a vehicle without the owner's consent, has been described as a lesser included offense of Penal Code section 487, subdivision (d)(1), grand theft automobile. (People v. Page (2017) 3 Cal.5th 1175, 1182 & fn. 2.) However, because the statute can also be violated by simply driving without the owner's consent, not every violation would constitute theft under Penal Code section 487. (Page, supra, at p. 1182 & fn. 2.) In this case, defendant was charged with taking the vehicles without the owner's consent.
The plea agreement created an opportunity for defendant to avoid a prison sentence and obtain a grant of probation. As described by defense counsel to the trial court, defendant "is also going to enter a one-year residential rehab program. If she successfully completes that program, her strike admission will be stricken. She'll be allowed to take back her admission to the strike. And she would earn an unusual case finding and receive felony probation on the three counts of 10851. [¶] If [defendant] does not successfully complete the one-year residential rehab program, she is looking at a straight-up sentencing on the three violations of Vehicle Code Section 10851 with the strike admission. So she'd be looking at, I believe, anywhere from five years, four months to eight years, eight months state prison at possibly 80 percent."
The amended complaint charged defendant with three counts of unlawful taking of a 1995 GMC Sierra Truck, a 1997 Chevrolet 2500 Pickup, and a 2005 Featherlite Trailer. The third count was dismissed because the trailer was attached to one of the trucks. After that dismissal, according to defense counsel, defendant was facing a maximum sentence of seven years, four months.
At the plea hearing, defendant told the trial court she understood that if she did not complete the residential treatment program, she would not get a grant of probation. Defendant confirmed that she had read the plea agreement form; she also signed and initialed each term of the agreement. The plea form stated that defendant would plead no contest to counts I and II and admit the prior strike; defendant would enter into a residential rehabilitation program; if defendant completed residential rehabilitation, defendant's strike would be stricken, she would earn an unusual case finding, and a grant of two to five years' probation; if defendant did not complete residential rehabilitation, she would be sentenced straight up.
Per California Rules of Court, rule 4.413(c), the trial court may make an "unusual case" finding rebutting the presumption of probation ineligibility and grant probation. Defendant was presumptively ineligible due to the prior strike. (Pen. Code, §§ 667, subd. (c)(2), 1170.12, subd. (a)(2).) The term "straight up" indicates a plea to the charges without conditions. (People v. Cobb (1983) 139 Cal.App.3d 578, 581.)
On June 27, 2018, defense counsel and defendant appeared and informed the trial court that defendant was going to the Salvation Army program in San Francisco. The court reiterated the terms of the plea. "[T]he deal in her case was she has two 10851's and a strike. A minimum of a one-year residential treatment program. She will have one opportunity to complete a one-year residential treatment program. If she is successful, she will earn a grant of probation with an unusual case finding. If not, her plea will become straight up."
On June 27, 2018, defense counsel informed the trial court that defendant would be entering a Salvation Army program the following day. The trial court issued an order releasing defendant on her own recognizance for delivery to the program. Defendant agreed to the condition that if she left the residential rehabilitation program, she would return to court within 48 hours. The court set a review hearing for July 2, 2018, at which defendant was ordered to be personally present if she was not in the program.
At the July 2, 2018 review hearing, defense counsel appeared and explained: "My understanding is [defendant] was not allowed to enter the program due to her intake interview. There were discrepancies with her medical history and mental health that she had disclosed. It does not appear she came back and turned herself in to Probation." The trial court issued a warrant for defendant's arrest.
Defendant was arrested on July 11, 2018. On July 12, 2018, the trial court conducted another review hearing, this time with both counsel and defendant present. Defense counsel requested that the matter be continued to July 23, 2018. Counsel advised the court that "[t]his is kind of an odd case. I want to figure out exactly what happened with [defendant's] program. I've gotten various information from various sources, so I'd like to speak with [substance abuse counselor] Randy [Inman], as well as [defendant], and figure out exactly what happened and come back on the 23rd." Counsel explained again that "[defendant] was going to enter into a program to earn a grant of probation. If she didn't successfully complete the program, I believe it was seven years, four months. The issue is I think there might have been some issue with the information given to the program which led to [defendant] not being accepted." At counsel's request, the court set another review hearing for July 23, 2018.
On July 23, 2018, defendant and defense counsel were again both present at the review hearing. Counsel explained that he had not been able to speak to the substance abuse counselor or defendant's parole officer "to get to the bottom" of defendant's not being admitted by the Salvation Army. In response to the court's question as to what the issue was with the Salvation Army, counsel stated "[m]y understanding is [defendant] was not admitted into the program because there is some discrepancies with her medical disclosures. That's really the only information I have. [¶] I do have an email from them. They indicate she's not allowed to enter the program based on the intake interview discrepancies with her medical history and mental health that was disclosed. [¶] So I'm just trying to sort out exactly what happened and if there was a misrepresentation or a misunderstanding; kind of what I'm trying to figure out here." The trial court continued the matter to July 27, 2018.
On July 27, 2018, defense counsel and defendant were present in court. Defense counsel stated, "I think we need to set it for sentencing -- refer it to Probation and set it for sentencing. [Defendant] was not admitted into the program. However, after she was not admitted, she did not turn herself back in to Probation or the courts. Defendant was going to attempt to complete a residential rehab program to earn a shot at probation and an unusual case finding. [¶] She will now be referred for sentencing with the understanding that she did not do so."
The trial court summarized the plea agreement: "So [defendant] pled no contest to Counts I and II, admitted a strike prior. If she doesn't complete the program, she would be sentenced straight up." The court referred the matter to the probation department and set the matter for judgment and sentencing.
At the sentencing hearing on August 20, 2018, counsel argued for the lower term on the vehicle theft counts, pointing out as mitigating factors that defendant was stranded and suffering from a shoulder condition that made her feel she needed immediate medical care, prompting her to attempt to take the vehicles. She further argued that defendant was dealing with addiction, had acknowledged her wrongdoing at an early stage, and, but for the strike, probation would be considered under the circumstances. Counsel also noted that defendant was participating in an addiction recovery class in jail, offered a letter to that effect, and argued that defendant should be treated in jail.
Pursuant to Vehicle Code section 10851 and Penal Code section 1170, subdivision (h), each count of unlawful vehicle taking was punishable by a term of imprisonment of 16 months, or two or three years, in this case doubled by the prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
We granted defendant's request to augment the record that included this letter, but it could not be located in the lower court's files.
The court commented, "[y]ou have some excellent points here."
In response, the prosecutor stated that there was no medical emergency because the injury defendant described occurred a year before. Further, as to drug use, the probation report noted that since 2016 defendant had enrolled in three separate substance abuse programs and parole had directed her nine times to residential treatment programs but she did not participate. The only circumstance in mitigation was defendant's early admission of wrongdoing.
The trial court sentenced defendant to the upper term of six years on each count, to be served concurrently because both offenses occurred on the same occasion. The court commented that it would not grant probation even if defendant were eligible. The court reviewed defendant's history of assaults, profanity, and intoxication, as well as the prior strike for conviction of assault with a deadly weapon. The court noted "[h]abitual cases where she was under the influence. She's been given numerous opportunities to address her substance abuse issues. She's chosen not to." The court rejected defense counsel's argument that defendant could be treated locally. In summary, the court said, "[Defendant] served a prison term. She was on four grants of summary probation and on active parole when she committed this crime. She has poor performance habitually on probation and parole. Her prior convictions as an adult are numerous and of increasing seriousness." The court concluded that, notwithstanding defendant's early acknowledgement of wrongdoing and the arguments of defense counsel, aggravating factors on both counts outweighed mitigating factors.
The trial court sentenced defendant to an aggregate term of six years. Defendant was ordered to pay a restitution fine of $1,800 (Pen. Code, § 1202.4, subd. (b)), a court operations assessment of $80 (Pen. Code, § 1465.8, subd. (a)(1)), a conviction assessment of $60 (Gov. Code, § 70373), and $2,180.77 in victim restitution to the owner of the trucks. The court also imposed and suspended a matching parole revocation fine of $1,800 (Pen. Code, § 1202.45, subd. (a)).
Defendant did not obtain a certificate of probable cause from the trial court. In the notice of appeal, defendant stated that "[t]his appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).)"
As a threshold matter, we reject the state's argument that defendant's claim should be dismissed because she did not obtain a certificate of probable cause. A certificate of probable cause is not required when an "appeal is based on '[g]rounds that arose after the entry of the plea that do not affect the plea's validity.' " (People v. Rabanales (2008) 168 Cal.App.4th 494, 500, quoting Cal. Rules of Court, rule 8.304(b)(4)(B).) Defendant challenges the manner of enforcement of the plea, not its validity. A certificate of probable cause is not required.
DISCUSSION
Defendant's Due Process and Equal Protection Claims
Defendant contends that she did not violate the plea agreement's requirement that she complete a one-year rehabilitation program. Defendant argues she was denied entry to the program for "unknown reasons related to her medical and mental health history" and "no facts were elicited or presented to explain it," resulting in imposition of a six-year sentence that violated due process and equal protection.
The due process defendant asserts she was entitled to is that set forth in Penal Code section 1203.2 for probation revocation. (People v. Woodall (2013) 216 Cal.App.4th 1221, 1237 ["section 1203.2 requires that a probationer be given notice of a motion to revoke probation, and provides for a hearing before a court to determine whether probation should be revoked," citing Pen. Code, § 1203.2, subds. (a), (b)]; see also People v. Minor (2010) 189 Cal.App.4th 1, 18; 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2018 & 2019 Supp.) Punishment, § 693.)
Defendant's equal protection argument is also based on the procedure to revoke probation. Defendant contends that she was similarly situated to a defendant on probation and denial of the protections afforded in revocation of probation violated equal protection.
We conclude that these claims were forfeited because defense counsel did not object to the sentence, specifically to argue that defendant was entitled to further proceedings to determine whether she failed to complete a rehab program or should be given another chance to enroll. Where a defendant has failed to object to the procedure in which an agreed upon sentence condition was imposed, the issue cannot be raised on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott) ["Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing"]; People v. Brach (2002) 95 Cal.App.4th 571, 577; see also People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.) Defendant understood and acknowledged that the plea agreement called for a "straight up" sentence if she did not complete a one-year residential rehabilitation program. In the course of multiple review hearings, as well as at the sentencing hearing itself, defendant and her counsel did not object to the manner in which the trial determined that defendant had failed to complete a rehab program. Defense counsel did not claim that defendant would be denied due process or equal protection if the trial court did not conduct the proceedings in line with Penal Code section 1203.2. Indeed, defendant offered no argument or evidence to adequately explain the Salvation Army program rejection, to demonstrate that defendant should have qualified for that program, or that defendant could qualify for another program. To the contrary, by the July 27 review hearing, defense counsel conceded that defendant had failed to complete a rehabilitation program and a hearing should be set for sentencing under the terms of the plea agreement.
Defendant contends that defense counsel was ineffective in failing to object to "the summary termination of [defendant's] release to rehab." We disagree. As mentioned, defense counsel requested and received from the trial court multiple continuances to investigate the reasons why defendant was not admitted into the Salvation Army program. As of the July 12 hearing, defendant herself was present and available to provide information to counsel that would explain why rejection by the Salvation Army program should not preclude her from qualifying for rehabilitation there or somewhere else. Counsel's concession at the hearing on July 27 that the court should go forward with sentencing because defendant did not complete one year of rehabilitation signaled that no such information was forthcoming, or worse that any further information would be detrimental to defendant. At that point, counsel could have reasonably determined that defendant was best served by an argument that the court should sentence defendant to the lower term of 32 months, an argument which counsel did in fact make at the sentencing hearing (leading the court to comment that counsel had made "some excellent points here"). In any event, we cannot find ineffective assistance of counsel on direct appeal based on a record that is silent as to the reasons why counsel did not object, unless there can be no good explanation. (People v. Maury (2003) 30 Cal.4th 342, 389.) That is not the case here.
But even if defendant's contentions were not waived, they would fail on the merits. Defendant does not explain how she is entitled to the probation revocation procedures set forth in Penal Code section 1203.2, when the objective of the plea agreement was to allow defendant to earn probation, for which she was presumptively ineligible due to the prior strike. Further defendant did receive due process in the form of multiple review hearings, as well as the sentencing hearing, where she was afforded the opportunity to argue and present evidence in support of a claim that she had not failed to complete rehabilitation despite rejection from the Salvation Army program and could qualify for a program there or elsewhere. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84 [" 'The fundamental requisite of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. [Citations.]' [Citation.]"].) Nothing in the record suggests that defendant or defense counsel was denied a meaningful opportunity to state her case that, notwithstanding the Salvation Army's rejection, she had not yet failed to complete a rehab program and should be given another chance. (Ibid.)
Defendant's Penal Code Section 1192 .5 and Cruz Waiver Claims
Defendant asserts that "[t]o the extent that the trial court found that [defendant] violated the terms of her plea deal by her failure [to] appear for the July 2, 2018, review hearing, this determination is wrong."
Defendant's contention fails in its premise. The court did not find that defendant violated the plea agreement by her failure to appear. The court found that defendant failed to complete a rehab program, which under the terms of the plea agreement required her to be sentenced to prison instead of earning a grant of probation. The court articulated these terms on multiple occasions, as did defense counsel and the written plea agreement. Defense counsel conceded at the July 27 review hearing that defendant "was going to attempt to complete a residential rehab program to earn a shot at probation and an unusual case finding. [¶] She will now be referred for sentencing with the understanding that she did not do so." The court then stated: "So she pled no contest to Counts I and II, admitted a strike prior. If she doesn't complete the program, she would be sentenced straight up. [¶] So I will refer the matter to the Probation Department for judgment and sentencing and a presentence report." It is plain from this exchange that defendant was sentenced because she failed to complete a rehab program.
Defendant attempts to take advantage of stray remarks by the trial court erroneously referring to a Cruz waiver. At the July 2 review hearing, when defense counsel informed the trial court that defendant was rejected by the Salvation Army program and had not turned herself in, the court said, "She has violated the Cruz waiver and it looks like she is straight up with a strike." At the next review hearing on July 12, when defense counsel asked to continue the hearing to investigate further defendant's rejection by the Salvation Army program, the court asked, "So since it's post plea -- was there a Cruz waiver on this one?" Defense counsel responded by restating the terms of the plea agreement: "She was going to enter into a program to earn a grant of probation. If she didn't successfully complete the program, I believe it was seven years, four months." Defense counsel correctly informed the court that defendant would be sentenced to prison, not for failing to appear at a review hearing, but under the terms of the plea agreement because she did not complete the rehab program. There were no further references to a Cruz waiver in the proceedings.
Thus, a Cruz waiver was not obtained nor was it necessary in this instance. In Cruz, the Supreme Court held that where a defendant enters into a plea agreement and does not appear at the sentencing hearing, the court may refuse to approve the agreement. (Cruz, supra, 44 Cal.3d at p. 1250.) But defendant then is entitled to either stick with the plea bargain or withdraw the plea under Penal Code section 1192.5. (Cruz, supra, at p. 1250.) A defendant may waive the right to withdraw the plea upon failure to appear at the sentencing hearing, i.e., a Cruz waiver. (Id. at p. 1254, fn. 5.) In the absence of a waiver, a sentence greater than agreed to in the plea agreement is improper. (Id. at p. 1253.)
Penal Code section 1192.5 provides in relevant part: "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so."
Here, the trial court did not refuse to approve the plea agreement for defendant's failure to appear at the July 2 review hearing. In fact, this hearing was followed by further review hearings allowed by the court at which defendant appeared, as well as the sentencing hearing. The trial court enforced the plea agreement and imposed the prison sentence expressly called for by the terms to which the parties agreed: if defendant did not complete one year in a rehab program, defendant would be sentenced "straight up." Enforcement of the terms of a plea by imposing the specified sentence in the agreement does not require a Cruz waiver. (See People v. Vargas (1990) 223 Cal.App.3d 1107, 1113.)
Nonetheless, defendant contends that when she "pleaded no contest, she was not advised that she had the right to withdraw her plea if the court sentenced her to a term greater than probation, nor did she expressly waive her right to do so." However, defendant was advised in the plea agreement form she signed of her right under Penal Code section 1192.5 to withdraw the plea if the court did not approve it. The trial court did not disapprove the plea agreement, thereby triggering the application of Penal Code section 1192.5. Nor did the court impose a term greater than defendant agreed to in the plea. As mentioned, the court enforced the terms of the plea agreement that called for defendant to be sentenced to prison if she failed to successfully complete one year of a residential rehabilitation program. The agreement did not provide that defendant could withdraw the plea if she was unsuccessful and did not receive a grant of probation. Defendant seems to propose a different deal where she agreed to nothing more than to attempt to complete a program. But that is not the bargain that she struck. The sentence imposed was not more severe than the plea agreement; it was the sentence specified and required by the plea agreement.
The plea agreement form stated: "I understand that if the court approves this plea agreement the approval of the court is not binding, and that the court may withdraw its approval of the plea agreement upon further consideration of the matter. I understand that if the court withdraws its approval of the plea agreement I will be allowed to withdraw my plea. (Pen. Code, § 1192.5.)"
In a concluding mash-up of her contentions, defendant argues that "because [defendant] was not advised at the plea hearing that she could withdraw her plea if the court sentenced her to a term greater than probation for mere failure to appear, the fact that she did not later request to withdraw her plea does not mean she forfeited the right." To be sure, "when the trial court fails to give a [Penal Code] section 1192.5 admonition, the defendant's failure to object at sentencing does not waive his claim on appeal. [Citations.]" (People v. Silva (2016) 247 Cal.App.4th 578, 589.) However, the admonition required by Penal Code section 1192.5 was given and the trial court did not sentence defendant to prison for failure to appear, but rather because she failed to successfully complete one year of a rehabilitation program.
Defendant's Inability to Pay Assessments and Fine Claims
In supplemental briefing, defendant contends that assessments under Penal Code section 1465.8 and Government Code section 70373, as well as the restitution fine under Penal Code section 1202.4, "must be stayed unless and until the trial court holds an ability to pay hearing." This argument is based on the recent Dueñas decision.
In Dueñas, supra, 30 Cal.App.5th 1157 an indigent and homeless mother of young children was trapped in a cycle where she could not pay the fees to reinstate a suspended driver's license and incurred additional fees and fines associated with misdemeanor convictions for driving with a suspended license, which she could not afford to pay. (Id. at pp. 1160-1161.) After pleading no contest to another misdemeanor charge of driving with a suspended license, Dueñas requested that the trial court conduct an ability to pay hearing, at which the court determined that she lacked the ability to pay attorney's fees for representation by a public defender (Pen. Code, § 987.8, subd. (b)) and waived these fees. (Dueñas, supra, at p. 1163.) Nonetheless, the court imposed assessments and a minimum restitution fine. (Ibid.)
The appellate court held "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . 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." (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
The court acknowledged "case law in this area historically has drawn on both due process and equal protection principles." (Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. 4, citations omitted.)
As for the restitution fine under Penal Code section 1202.4, the statute prohibits a trial court from considering a defendant's ability to pay unless the fine exceeds the statutory minimum amount. (Pen. Code, § 1202.4, subds. (b)(1), (c).) The court in Dueñas held that this statute violates due process. (Dueñas, supra, 30 Cal.App.5th at p. 1171.)
The court also acknowledged that in that context due process and the constitutional ban on excessive fines are similar in application. (Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8.)
We also lament the plight of indigent defendants who, like Dueñas, find themselves trapped in a set of unfortunate circumstances created by the imposition of fines and fees they cannot afford to pay. Though the seeds of their predicament were sowed by their own misconduct, it may nonetheless seem unfair that those with money can avail themselves of opportunities and avoid consequences that the poor cannot. But the constitutionality of a fine or fee does not rest on whether it seems unfair. As pointed out in People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946, the constitution has been held to bar the imposition of financial exactions on the impecunious only in limited circumstances when to do so "would otherwise preclude criminal and civil litigants from prosecuting or defending lawsuits or from having an appellate court review the propriety of any judgment," or when the failure to pay would result in the incarceration of persons lacking the ability to pay. (Id. at p. 325.)
We agree with Hick's explication of the constitutional principles on which Dueñas relies and therefore disagree with the holding in Dueñas. The imposition of fees and fines in this case does not compromise defendant's constitutional right of access to the courts nor will it result in any additional incarceration, and thus no liberty interest protected by due process is implicated. Indigency is not a defense to criminal sanctions, and does not warrant the relief sought here.
DISPOSITION
The judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
BLEASE, J. /s/_________
KRAUSE, J.