Opinion
H046596
02-13-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN ANDERS SORENSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1894472)
Defendant John Anders Sorenson pleaded no contest to possessing a firearm as a felon. The trial court granted a three-year term of probation and imposed various fines and fees.
We appointed counsel, who filed an opening brief stating the case but raising no specific issues. After we reviewed the record under People v. Wende (1979) 25 Cal.3d 436 (Wende), we requested supplemental briefing from the parties on whether the trial court erred in the imposition of any fines or fees without determining whether Sorenson had an ability to pay. (See People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) [imposition of certain fines and fees without determining defendant's ability to pay was a violation of due process].) Citing Dueñas, Sorenson then challenged the trial court's imposition of two assessments—a $40 court operations assessment and a $30 criminal conviction assessment—without determining whether he had the ability to pay them as required by Dueñas. Sorenson did not challenge the imposition of restitution fines or any other amounts.
For the reasons set forth in Dueñas and People v. Santos (2019) 38 Cal.App.5th 923 (Santos), we conclude the trial court erred by imposing the challenged assessments without determining whether Sorenson had the ability to pay them. We will reverse and remand with instructions to hold a hearing on Sorenson's ability to pay.
I. BACKGROUND
The prosecution charged Sorenson with possession of a firearm by a felon. (Pen. Code, § 29800, subd. (a)(1).) He was appointed a public defender, and he pleaded no contest to the count as charged. The trial court suspended imposition of sentence and granted a three-year term of probation with 364 days in county jail. The court also imposed various fines and fees, including a $300 restitution fine with a 10 percent administrative fee (§ 1202.4); a $40 court operations assessment (§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); a $129.75 criminal justice administration fee (Gov. Code, §§ 29550, 29550.1, 29550.2); and a $300 probation revocation fine, which the court suspended (§ 1202.44). Sorenson did not object.
The record does not contain any description of the facts of the offense. It appears they are immaterial to the resolution of this appeal.
Subsequent undesignated statutory references are to the Penal Code.
Sorenson timely appealed. We appointed counsel to represent him in this court. Appointed counsel filed an opening brief stating the case but raised no specific issues on appeal. After we reviewed the record under Wende, we requested supplemental briefing from the parties on whether the trial court erred in the imposition of any fines or fees without determining whether Sorenson had the ability to pay them. (See Dueñas, supra, 30 Cal.App.5th 1157.)
While the appeal was pending, Sorenson filed a motion under section 1237.2 in the trial court to strike the fines and fees on the ground that the court erred by imposing them without determining his ability to pay. The trial court denied the motion without holding a hearing on the matter and without making any determination of Sorenson's ability to pay.
II. DISCUSSION
In response to the request for letter briefing, Sorenson argues that we must remand the case to the trial court for a hearing on his ability to pay the $40 court operations assessment and the $30 criminal conviction assessment under Dueñas, supra, 30 Cal.App.5th 1157. He does not challenge the imposition of the restitution fines or any other amounts.
Although Sorenson did not challenge the restitution fine, the respondent's brief disputes the holdings of Dueñas with respect to the imposition of restitution fines. In his reply brief, Sorenson argues Dueñas was properly decided on the issue of restitution fines. Because Sorenson never raised that claim in the first instance, we consider those arguments to be purely academic in the context of this appeal.
The Attorney General contends Sorenson forfeited his claim by failing to object below when the trial court imposed the assessments. On the merits of the claim, however, the Attorney General concedes that Dueñas requires us to remand for a hearing on Sorenson's ability to pay the challenged assessments.
The Attorney General also argued that we lacked jurisdiction over the appeal because Sorenson had not yet filed a motion to correct the error in the trial court under section 1237.2. As noted above, Sorenson has since corrected this defect, such that the appeal is now within our jurisdiction.
We conclude Sorenson did not forfeit his claim because it was not reasonably foreseeable the trial court would have entertained an objection based on inability to pay the assessments. (Santos, supra, 38 Cal.App.5th at p. 932; People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano).) On the merits of the claim, we accept the Attorney General's concession.
A. Sorenson Did Not Forfeit His Challenge Concerning Ability to Pay
The trial court imposed the challenged assessments in November 2018, before Dueñas was decided. The Attorney General nonetheless contends Sorenson forfeited his claim because he failed to object at that time. (See People v. Aguilar (2015) 60 Cal.4th 862, 864 [failure to object to fees in the trial court precluded defendant's challenge on appeal].) But as we explained in Santos, "The question as to forfeiture is whether Dueñas represents an unforeseen significant shift in the pertinent law that trial counsel could not have anticipated, thus excusing the failure to raise the issue." (Santos, supra, 38 Cal.App.5th at p. 931, citing People v. Black (2007) 41 Cal.4th 799, 810; see also Castellano, supra, 33 Cal.App.5th at pp. 488-489.) We concluded that Dueñas did represent such an unforeseen shift, such that prior to that case, "it was not reasonably foreseeable that a trial court would entertain an objection to assessments that are prescribed by statute." (Santos, supra, 38 Cal.App.5th at p. 932.) For the reasons set forth in that opinion, we conclude that Sorenson's claim on appeal based on the principles established in Dueñas was not forfeited by the failure to object at sentencing.
B. Sorenson Is Entitled to a Limited Remand for a Hearing on Ability to Pay
Sorenson challenges the imposition of two assessments—a $40 court operations assessment and a $30 criminal conviction assessment—based on the principles established in Dueñas. As to the imposition of those two assessments, the Attorney General concedes that Dueñas was correctly decided. He agrees with Sorenson that the correct remedy is a limited remand for a hearing on his ability to pay those assessments.
The Attorney General's concession is well-taken. As with the defendant in Santos, Sorenson was represented by the public defender—a fact that while not determinative, entitles him " 'to a presumption of indigence for most purposes.' " (Santos, supra, 38 Cal.App.5th at p. 933, quoting People v. Rodriguez (2019) 34 Cal.App.5th 641, 645.) He was 64 years old at the time of sentencing, and there is no evidence he was gainfully employed. Therefore, "in accordance with the principles announced in Dueñas, the trial court should not have imposed the court operations and criminal conviction assessments without first determining [defendant's] ability to pay." (Santos at p. 933.)
Accordingly, we will reverse the judgment and remand the matter to the trial court for the limited purpose of holding a hearing to determine whether Sorenson has the ability to pay the challenged assessments.
III. DISPOSITION
The judgment is reversed and the matter is remanded for the limited purpose of holding a hearing on Sorenson's ability to pay the challenged assessments. If Sorenson demonstrates the inability to pay, the trial court must strike the court operations assessment (Pen. Code, § 1465.8) and the criminal conviction assessment (Gov. Code, § 70373). If he fails to demonstrate his inability to pay these amounts, the assessments may remain as imposed.
/s/_________
Greenwood, P.J. I CONCUR: /s/_________
Premo, J. Elia, J., Dissenting.
I continue to believe that People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) was wrongly decided. For the reasons set forth in my dissenting opinion in People v. Santos (2019) 38 Cal.App.5th 923, 935 to 940 (dis. opn. of Elia, J.), and for the reasons discussed below, I respectfully dissent in this case.
On November 13, 2019, the California Supreme Court granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (S257844) (Kopp). The court limited review to the following issues: "(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant's inability to pay?" (<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2296622&doc_no=S257844&request_token=NiIwLSEmXkw9WyBJSCNdVEJJQEg0UDxTJiMuJz5SMCAgCg%3D%3D&bck=yes> [as of Feb. 11, 2020], archived at <https://perma.cc/LZ8B-73V2>.) On November 26, 2019, the Supreme Court granted review in People v. Hicks (2019) 40 Cal.App.5th 320 (S258946) (Hicks) but deferred further action pending consideration and disposition of a related issue in Kopp or pending further order of the court. Hicks disagreed with Dueñas's due process analysis and concluded that Dueñas was wrongly decided. (Hicks, supra, 40 Cal.App.5th at pp. 322, 326-329.)
In Dueñas, the Court of Appeal, Second District, Division held that due process required the trial court (1) to conduct a hearing to ascertain the defendant's present ability to pay before it imposed a court operations assessment (Pen. Code, § 1465.8) or a court facilities assessment (Gov. Code § 70373) and (2) to stay execution of any restitution fine (Pen. Code, § 1202.4) "unless and until" it held an ability-to-pay hearing and concluded that the defendant had the ability to pay the fine. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In reaching those holdings, Dueñas primarily relied upon Griffin v. Illinois (1956) 351 U.S. 12 (plur. opn.) (Griffin), Bearden v. Georgia (1983) 461 U.S. 660 (Bearden), and In re Antazo (1970) 3 Cal.3d 100 (Antazo). (See Dueñas, supra, at pp. 1166-1167, 1171.)
In Griffin, the United States Supreme Court assumed that "errors were committed in the trial [that] would merit reversal, but that the petitioners could not get appellate review of those errors solely because they were too poor to buy a stenographic transcript." (Griffin, supra, 351 U.S. at p. 16.) While the court recognized that a state is "not required by the [f]ederal Constitution to provide appellate courts or a right to appellate review at all" (id. at p. 18), it concluded that if a state establishes a right of appeal, "[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." (Ibid.) "[T]he Griffin plurality drew support from the Due Process and Equal Protection Clauses. [Citation.]" (M.L.B. v. S.L.J. (1996) 519 U.S. 102, 110 (M.L.B.).)
In his concurring opinion in Griffin, Justice Frankfurter agreed that "when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons . . . from securing such . . . review . . . ." (Griffin, supra, 351 U.S. at p. 23 (conc. opn. of Frankfurter, J.).) However, Justice Frankfurter also explained: "Of course a State need not equalize economic conditions. A man of means may be able to afford the retention of an expensive, able counsel not within reach of a poor man's purse. Those are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion." (Ibid.; see Lindsey v. Normet (1972) 405 U.S. 56, 74 ["The Constitution does not provide judicial remedies for every social and economic ill"].)
In Ross v. Moffitt (1974) 417 U.S. 600 (Ross), the United States Supreme Court described Griffin and subsequent cases invaliding "state-imposed financial barriers to the adjudication of a criminal defendant's appeal" as "stand[ing] for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons." (Id. at 607.) Nevertheless, the United States Supreme Court held in Ross that the due process clause of the Fourteenth Amendment did not require North Carolina to provide an indigent defendant with counsel on his discretionary appeal—beyond the first appeal as of right—to the state's supreme court (id. at p. 610) and that the equal protection clause did not require North Carolina to provide free counsel to indigent defendants seeking to take discretionary appeals to the state's supreme court or to file petitions for certiorari in the United States Supreme Court. (Id. at p. 612.) While the high court understood that "[a]n indigent defendant seeking review in the Supreme Court of North Carolina [was] somewhat handicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable manner at every stage in the proceeding" (id. at p. 616), it also recognized that "[t]he Fourteenth Amendment 'does not require absolute equality or precisely equal advantages,' San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 24 (1973), nor does it require the State to 'equalize economic conditions.' Griffin v. Illinois, 351 U.S., at 23 (Frankfurter, J., concurring)." (Id. at p. 612.)
In M.L.B., the United States Supreme Court considered the question, "May a State, consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment, condition appeals from trial court decrees terminating parental rights on the affected parent's ability to pay record preparation fees?" (M.L.B., supra, 519 U.S. at p. 107.) The court held that Mississippi was not entitled to deny appellate review to M.L.B. because of her poverty (ibid.) or to withhold from her a record sufficiently complete to permit appellate consideration of her claims. (Id. at p. 128.) The court did not, however, "question the general rule, stated in Ortwein [v. Schwab (1973) 410 U.S. 656 (per curiam)], that fee requirements ordinarily are examined only for rationality. [Citation.]" (Id. at p. 123.) The court stated: "The State's need for revenue to offset costs, in the mine run of cases, satisfies the rationality requirement [citation]; States are not forced by the Constitution to adjust all tolls to account for 'disparity in material circumstances.' Griffin, 351 U.S., at 23 (Frankfurter, J., concurring in judgment)." (Id. at pp. 123-124.)
In Ortwein, welfare recipients petitioned the Supreme Court of Oregon for a writ of mandamus compelling the Oregon Court of Appeals to accept their cases without requiring their payment of filing fees. (Ortwein v. Schwab, supra, 410 U.S. at p. 658.) The United States Supreme Court stated that "[t]he Oregon court system incurs operating costs, and the [filing] fee produces some small revenue to assist in offsetting those expenses." (Id. at p. 660.) The court determined that the equal protection standard was rationality and that the standard was satisfied. (Ibid.)
The Griffin line of cases involving financial barriers to meaningful access to the judicial system was inapposite to the restitution fine and assessments at issue in Dueñas because their imposition did not interfere with such access. I turn then to Bearden and related cases that stemmed from the Griffin's principle of "equal justice" (Griffin, supra, 351 U.S. at p. 19) and involved the incarceration of indigent criminal defendants for their failure to pay a fine or restitution. Even this line of precedents did not hold that due process is violated by mere imposition of such financial obligations unless the court first holds an ability-to-pay hearing and finds that the criminal defendant has the wherewithal to presently pay.
The issue before the United States Supreme Court in Williams v. Illinois (1970) 399 U.S. 235 (Williams), a case later relied upon in Bearden, was "whether an indigent may be continued in confinement beyond the maximum term specified by statute because of his failure to satisfy the monetary provisions of the sentence." (Id. at p. 236.) Applying Griffin's "teaching" of equal justice, the Supreme Court concluded that "an indigent criminal defendant may not be imprisoned in default of payment of a fine beyond the maximum authorized by the statute regulating the substantive offense." (Id. at p. 241.) The court explained that "once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency." (Id. at pp. 241-242.) It held that "the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status." (Id. at p. 244, fn. omitted.)
Tate v. Short (1971) 401 U.S. 395 (Tate), another case relied upon in Bearden and mentioned in Dueñas, involved an indigent's incarceration based on his "accumulated fines of $425 on nine [traffic offense] convictions." (Id. at p. 396.) Pursuant to statute, the indigent was committed to a "municipal prison farm" until the fines were satisfied "at the rate of five dollars per day." (Id. at pp. 396-397.) The United States Supreme Court concluded that the "imprisonment for nonpayment constitute[d] precisely the same unconstitutional discrimination [addressed in Williams] since, like Williams, petitioner was subjected to imprisonment solely because of his indigency." (Id. at pp. 397-398, fn. omitted.)
In Bearden, a trial court had revoked probation for Bearden's failure to fully pay a $500 fine and $250 in restitution, entered a conviction upon defendant's previously entered guilty plea, and sentenced him to serve time in prison. (Bearden, supra, 461 U.S. at pp. 662-663.) The United States Supreme Court framed the question as "whether a sentencing court can revoke a defendant's probation for failure to pay the imposed fine and restitution, absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate." (Id. at p. 665.)
The Supreme Court in Bearden first considered Williams and Tate. (Bearden, supra, 461 U.S. at pp. 664, 667.) It summarized: "The rule of Williams and Tate . . . is that the State cannot 'impos[e] a fine as a sentence and then automatically conver[t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.' [Citation.] In other words, if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he [or she] lacked the resources to pay it. Both Williams and Tate carefully distinguished this substantive limitation on the imprisonment of indigents from the situation where a defendant was at fault in failing to pay the fine." (Id. at pp. 667-668.)
In Bearden, the Supreme Court further explained: "This distinction, based on the reasons for non-payment, is of critical importance here. If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. [Citation.] Similarly, a probationer's failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense." (Bearden, supra, 461 U.S. at p. 668.) It held that "in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay." (Id. at p. 672.)
The Supreme Court in Bearden believed that a state's clear interest in punishment and deterrence often could be fully served by means other than imprisonment of an indigent defendant. (Bearden, supra, 461 U.S. at pp. 671-672.) It concluded that "if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available." (Id. at pp. 668-669, fn. omitted.) The court suggested that, "[f]or example, the sentencing court could extend the time for making payments, or reduce the fine, or direct that the probationer perform some form of labor or public service in lieu of the fine." (Id. at p. 672.) The court held that "[o]nly if the sentencing court determines that alternatives to imprisonment are not adequate in a particular situation to meet the State's interest in punishment and deterrence may the State imprison a probationer who has made sufficient bona fide efforts to pay." (Ibid.)
The Supreme Court recognized in Bearden that "[t]he State, of course, has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws" (Bearden, supra, 461 U.S. at p. 669) and that "[a] defendant's poverty in no way immunizes him from punishment." (Ibid.) But, as indicated, it also recognized a "substantive limitation on the imprisonment of indigents." (Id. at p. 668, italics added.)
In Antazo, which predated Bearden, the California Supreme Court held that a probationer's "imprisonment because of his inability, due solely to his indigency, to pay the fine and penalty assessment imposed upon him as a condition of probation . . . constituted an invidious discrimination based on his poverty in violation of the equal protection clause of the Fourteenth Amendment." (Antazo, supra, 3 Cal.3d at p. 115, italics added.) The court expressly made clear that it was not "hold[ing] that the imposition upon an indigent offender of a fine and 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." (Id. at p. 116, italics added.) As indicated, Antazo's holding was not based on due process. Moreover, the view of the California Supreme Court in Antazo that the poor constituted a suspect classification subject to stricter judicial scrutiny under the equal protection clause of Fourteenth Amendment (Antazo, supra, at p. 112) has been rejected by the United States Supreme Court. Even in Bearden, the United States Supreme Court did not conclude that indigents constituted a constitutionally suspect classification for purposes of its due process analysis. Rather, Bearden found that "[w]hen the court is initially considering what sentence to impose, a defendant's level of financial resources is a point on a spectrum rather than a classification." (Bearden, supra, 461 U.S. at p. 667, fn. 8.)
In San Antonio Independent School Dist. v. Rodriguez, supra, 411 U.S. 1, a class action, a federal district court found that public education was a fundamental right and that Texas's system of financing public education, which was funded in part through local property taxes, discriminated against students in poorer school districts on the basis of wealth, which the court regarded as a suspect class. (Id. at pp. 5, 16, 18.) The United States Supreme Court found that the financing system was not unconstitutional under the equal protection clause of the Fourteenth Amendment (id. at pp. 54-55), stating in part that the court had "never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny." (Id. at p. 29.) Later high court cases continued to adhere to the view that the poor or indigent are not a suspect class. (See Harris v. McRae (1980) 448 U.S. 297, 323 ["Court has held repeatedly that poverty, standing alone, is not a suspect classification. [Citation.]"]; Maher v. Roe (1977) 432 U.S. 464, 471 ["[T]his Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis"].) In Kadrmas v. Dickinson Public Schools (1988) 487 U.S. 450, the Supreme Court confirmed that it had "rejected the suggestion that statutes having different effects on the wealthy and the poor should on that account alone be subjected to strict equal protection scrutiny. [Citations.]" (Id. at p. 458.) Under traditional rational-basis review, "a classification 'must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.' [Citations.]" (Heller v. Doe by Doe (1993) 509 U.S. 312, 320.) Moreover, "[a] statute is presumed constitutional [citation], and '[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,' [citation], whether or not the basis has a foundation in the record." (Id. at pp. 320-321.)
The due process clause of the Fourteenth Amendment prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law." The United States Supreme Court's thinking has evolved, and the clause is now understood to provide three types of protection. First, it "incorporates many of the specific protections defined in the Bill of Rights." (Zinermon v. Burch (1990) 494 U.S. 113, 125.) Second, the clause "contains a substantive component that bars certain arbitrary, wrongful government actions 'regardless of the fairness of the procedures used to implement them.' [Citation.]" (Ibid.) Third, the due process clause "encompasses . . . a guarantee of fair procedure." (Ibid.) "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. [Citations.]" (Id. at p. 126, fn. omitted.) "Procedural due process rules . . . protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." (Carey v. Piphus (1978) 435 U.S. 247, 259.)
In the modern context, Dueñas's due process holdings are untethered. As stated in Hicks, "Dueñas engaged in a bit of constitutional synergy in fashioning what its authoring court acknowledged was a 'newly announced constitutional principle' (People v. Castellano (2019) 33 Cal.App.5th 485, 489) from . . . two strands of due process precedent . . . that themselves do not dictate Dueñas's rule." (Hicks, supra, 40 Cal.App.5th at p. 326.) In constructing such a supposed due process right, Dueñas failed to differentiate between substantive and procedural due process. It did not identify (1) any substantive due process right being infringed or (2) any life, liberty, or property interest at stake that required the procedural protection of a pre-imposition ability-to-pay hearing. Obviously, mere imposition of a court facilities or operations assessment or a minimum restitution fine does not deprive a criminal defendant of liberty or interfere with his or her meaningful access to our courts.
In general, "legislative [a]cts adjusting the burdens and benefits of economic life come to the [c]ourt with a presumption of constitutionality, and . . . the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. [Citations.]" (Usery v. Turner Elkhorn Mining Co. (1976) 428 U.S. 1, 15.) The appellate court in Dueñas understood that Penal Code section 1465.8's current purpose is " '[t]o assist in funding court operations' " (Dueñas, supra, 30 Cal.App.5th at p. 1165) and that Government Code section 70373's "purpose is '[t]o ensure and maintain adequate funding for court facilities.' (Gov. Code, § 70373, subd. (a)(1).)" (Dueñas, supra, at p. 1165.) Thus, even if the court operations and facilities assessments fall harder on economically disadvantaged defendants, the authorizing statutory provisions are not arbitrary or irrational. I also reject Dueñas's view that in the absence of an ability-to-pay hearing, a mandated minimum restitution fine is not "reasonably related to any proper legislative goal." (Id. at p. 1171, fn. 8.) I may easily conceive of legitimate state interests that rationally support the statutory provisions at issue, such as the purpose of funding court facilities or operations or the state's Restitution Fund or deterring, punishing, or rehabilitating offenders.
Further, I disagree with Dueñas's conclusion that due process requires trial courts to consider a defendant's present ability to pay before imposing a court operations or facilities assessment or that a court must stay execution of a restitution fine until the defendant's present ability to pay has been established. In this regard I find the Supreme Court's observations in Fuller v. Oregon (1974) 417 U.S. 40 (Fuller), which involved an equal protection challenge to a state recoupment statute, germane.
In Fuller, the United States Supreme Court upheld an Oregon recoupment statute, under which the state could require a previously indigent person to repay the costs of the person's court-appointed counsel and legal defense if the person was convicted and subsequently acquired the means to pay without hardship. (Fuller, supra, 417 U.S. at pp. 41, 45-46.) In Fuller, the Supreme Court stated in part: "A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship." (Id. at pp. 53-54.)
The Oregon statute "retain[ed] all the exemptions accorded other judgment debtors, in addition to [providing the person with] the opportunity to show at any time that recovery of the costs of his legal defense [would] impose 'manifest hardship[]' [citation]." (Fuller, supra, 417 U.S. at p. 47.)
As Fuller reflects, a criminal defendant's ability to pay is not frozen in time. A defendant may acquire the ability to pay after the court grants probation or imposes sentence. I do not see that a criminal defendant is constitutionally entitled, as a matter of due process, to avoid altogether the mere imposition of a court facilities or operations assessment, or to have a minimum restitution fine stayed, because there has been no showing of defendant's "present ability to pay" (Dueñas, supra, 30 Cal.App.5th at p. 1164) at the moment when the court is statutorily required to impose the assessment or fine. The issue whether due process places some limitation on the state's enforcement or collection of such assessment or fine is not before this court.
Although I would affirm the judgment in this case because Dueñas's due process analysis is fatally flawed, I am aware of the proliferation of financial obligations and sanctions imposed on criminal defendants in California. Those burdens cumulatively may result in severe economic hardship for some defendants, and those financially dependent upon them, and may potentially interfere with those defendants' successful reintegration into society. (See Bearden, supra, 461 U.S. at pp. 670-671 [observing that a policy of revocation regardless of a probationer's ability to pay "may have the perverse effect of inducing the probationer to use illegal means to acquire funds to pay in order to avoid revocation"].) It is the Legislature's role to reevaluate the wisdom of the ever-expanding panoply of financial burdens imposed on criminal defendants. (Ferguson v. Skrupa (1963) 372 U.S. 726, 729 ["it is up to legislatures, not courts, to decide on the wisdom and utility of legislation"].) "A wise public policy . . . may require that higher standards be adopted than those minimally tolerable under the Constitution." (Lassiter v. Department of Social Services of Durham County, N.C. (1981) 452 U.S. 18, 33.)
/s/_________
ELIA, J.