Opinion
C088940
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN MICHAEL RILEY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF180002231)
Defendant appeals a judgment entered following his no contest plea to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)) in exchange for a stipulated sentence of two years in prison. At sentencing, the trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended parole revocation fine (§ 1202.45), a $30 conviction assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8). On appeal, defendant requests we remand this matter so the trial court may conduct an ability to pay hearing regarding these fines and assessments in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). In accordance with section 1237.2, defendant first sought relief from the trial court for this single issue appeal. We will affirm the judgment.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pled no contest to a single count of being a felon in possession of a firearm (§ 29800) in exchange for a stipulated sentence of two years in prison. The stipulated factual basis for this plea was that a police officer contacted defendant in response to a suspicious person report. Defendant appeared under the influence and consented to a search, but then "spontaneously offered" that he had a gun. A loaded handgun was recovered from his pants pocket. Defendant had suffered two prior felony convictions.
Thereafter, the trial court sentenced defendant to two years in prison and imposed the fines and assessments we have outlined above. The trial court selected the statutory minimum for the restitution fine because defendant resolved the case "at an early stage in the proceeding." Defendant timely appealed.
DISCUSSION
Defendant requests remand for an ability to pay hearing in light of Dueñas, supra, 30 Cal.App.5th 1157. We disagree with the Attorney General that defendant has forfeited his claim, but disagree with defendant that remand is required.
In Dueñas, an unemployed mother with cerebral palsy surviving on public assistance lost her driver's license because she was unable to pay $1,088 assessed against her for three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Thereafter she received multiple convictions related to driving with a suspended license, each accompanied by jail time and additional fees that she could not pay. (Id. at p. 1161.) After a fourth conviction of driving with a suspended license, the court placed Dueñas on probation and ordered her to pay mandatory fines and assessments under sections 1465.8, 1202.4, and Government Code section 70373. (Dueñas, at p. 1162.) Dueñas asked the trial court to hold a hearing to determine her ability to pay those costs. (Id. at pp. 1161-1163.) Despite Dueñas's uncontested declaration establishing her indigence, the trial court ruled that the assessments were mandatory and that Dueñas had not shown " 'compelling and extraordinary reasons' " to waive the restitution fine. (Id. at p. 1163.)
The Court of Appeal reversed, holding that due process requires the trial court to ascertain a defendant's present ability to pay before imposing the court assessments and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
Reactions to Dueñas have been mixed. Although some courts have followed its reasoning, others have strictly limited it to its facts or simply found that it was wrongly decided. Having reviewed these opinions, we agree with those that have disagreed with Dueñas and therefore declined to follow it. (See, e.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068 (Aviles); People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted Nov. 26, 2019, S258946; People v. Caceres (2019) 39 Cal.App.5th 917, 926-929; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1041 (conc. opn. of Benke, J.) (Gutierrez); People v. Santos (2019) 38 Cal.App.5th 923, 935-940 (dis. opn. of Elia, J.) (Santos).)
We first observe that the facts in this case bear no similarity to the unique factual circumstances in Dueñas. Dueñas faced hardship because she was caught in a cycle of repeated criminal violations stemming from the loss of her driver's license. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Her license was suspended because she was too poor to pay her juvenile citations. She then continued to offend because the escalating assessments and fines prevented her from recovering her license. (Ibid.) On these facts, the court concluded that Dueñas was being punished solely because of her poverty. (Id. at pp. 1163, 1166-1167, 1171.)
We note that legislation enacted in 2017 ended the practice of suspending driver's licenses for failure to pay fines and fees. (See Veh. Code, § 40509; Stats. 2017, ch. 17, § 53 (Assem. Bill No. 103 (2017-2018 Reg. Sess.)), eff. June 27, 2017.) We further note that the legislative and executive branches of state government are focused on the fairness issues raised in Dueñas, and appear committed to finding a solution. (<https://www.gov.ca.gov/wp-content/uploads/2019/10/AB-927-Veto-Message-2019.pdf> [as of Mar. 12, 2020], archived at <https://perma.cc/BSQ2-Z7PH>.)
There is no similar harm to defendant here. Defendant is suffering fines and assessments resulting from his no contest plea to being a felon in possession of a firearm. Even if defendant does not pay the assessments and fines imposed by the trial court, he will suffer none of the "cascading consequences" faced by Dueñas. (People v. Caceres, supra, 39 Cal.App.5th at pp. 928-929; Dueñas, supra, 30 Cal.App.5th at p. 1163.)
In any event, we do not find the reasoning of Dueñas persuasive. We agree with the courts in Hicks and Aviles, and the concurring and dissenting opinions in Gutierrez and Santos, that the Dueñas approach is fundamentally flawed in concluding that the due process doctrine of "fundamental fairness" requires courts to conduct a preassessment ability-to-pay determination before imposing fines and fees on a criminal defendant. (Aviles, supra, 39 Cal.App.5th at pp. 1067-1068; People v. Hicks, supra, 40 Cal.App.5th at pp. 326-327; Gutierrez, supra, 35 Cal.App.5th at pp. 1034-1041 (conc. opn. of Benke, J.); Santos, supra, 38 Cal.App.5th 923, 935-940 (dis. opn. of Elia, J.).) Whether or not it is fundamentally unfair in a constitutional sense for a state to deprive a person of a driver's license because of that person's inability to pay a fine or fee, we are not persuaded that the mere potential an indigent defendant might be unable to pay a debt (and therefore suffer associated collection practices) rises to the level of a due process violation, especially where the defendant has not yet failed to pay or suffered any sanctions for doing so.
To the extent imposing potentially unpayable fees or fines on indigent defendants raises constitutional concerns, we agree that such challenges are properly analyzed under the excessive fines clause, which limits the government's power to extract payments as punishment for an offense. (Aviles, supra, 39 Cal.App.5th at pp. 1068-1069.) We disagree, however, with defendant's argument that his fines and fees fail under an excessive fines analysis.
" '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.' " [Citation.]' (Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in [People v. Bajakajian (1998) 524 U.S. 321 (Bajakajian)]. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.)" (Aviles, supra, 39 Cal.App.5th at p. 1070.)
" 'The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.' (Bajakajian, supra, 524 U.S. at p. 334.)" (Aviles, supra, 39 Cal.App.5th at p. 1070.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (Aviles, supra, 39 Cal.App.5th at p. 1070.)
We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Aviles, supra, 39 Cal.App.5th at p. 1072.) Having done so, we find the $370 imposed by the court is not grossly disproportional to the gravity of being a felon in possession of a loaded firearm or defendant's culpability in that offense. (See Bajakajian, supra, 524 U.S. 321; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; Aviles, at p. 1072.) We are also unconvinced by defendant's argument that he is indigent and unable to pay these amounts. That defendant was unemployed when arrested and without assets to pay the bond on his $25,000 bail, does not foreclose that he will be able to pay $370 in fines and fees. Further, ability to pay alone is not dispositive to an excessive fines analysis. (Aviles, at p. 1070, citing Bajakajian, at pp. 337-338 regarding the four factors for consideration.) Accordingly, we will deny his request for remand and affirm.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Blease, J.