Opinion
C088289
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN CARMELL TAYLOR, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16CF03422, 17CF05035, 18CF03421)
In two separate cases, defendant John Carmell Taylor pleaded no contest to misdemeanor carrying a dirk or dagger and felony failure to appear, and the trial court found he had violated probation. The trial court imposed the minimum restitution fines (Pen. Code, § 1202.4; undesignated statutory references are to the Penal Code), $40 court operations assessments (§ 1465.8), and $30 criminal conviction assessments (Gov. Code, § 70373). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1172 (Dueñas), defendant argues these fines and fees should be stayed until the trial court holds an ability to pay hearing. We disagree with Dueñas and its reasoning. Accordingly, we affirm the judgment.
BACKGROUND
The substantive facts underlying this appeal are not relevant to the issue raised on appeal, and therefore not recounted. --------
Defendant pleaded no contest to felony failure to appear (§ 1320) and misdemeanor carrying a dirk or dagger (§ 21310). Based on these pleas, the trial court took judicial notice that the pleas constituted violations of probation in two separate misdemeanor cases. The trial court sentenced him to two years in prison on the felony, with a concurrent one year term on the misdemeanor. The trial court imposed a $300 restitution fine (§ 1202.4) on the felony, a $150 restitution fine on the misdemeanor, and a $40 court operations fee on both convictions (§ 1465.8), and $30 criminal conviction assessment on both convictions (Gov. Code, § 70373). As to the two probation violations, the trial court unstayed the previously imposed $150 probation revocation fee and confirmed the previously imposed fines and fees in each.
DISCUSSION
Defendant claims that pursuant to the holding in Dueñas, supra, 30 Cal.App.5th at pages 1168 and 1172, the portion of the trial court order directing defendant to pay the minimum restitution fines and probation revocation fines, the $40 court operations assessments and $30 criminal conviction assessments should be stricken or stayed pending a hearing on his ability to pay.
We disagree because we conclude that Dueñas was wrongly decided.
Dueñas held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under []section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held "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 Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12, which itself rested on the "constitutional guaranties of due process and equal protection" and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin v. Illinois, supra, 351 U.S. at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).) Griffin also stated broadly, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." (Griffin, supra, at p. 19.) Another line of cases relied upon by Dueñas is related by this "principle of 'equal justice' " and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, supra, at pp. 1166-1168.)
The fine and assessments at issue in Dueñas and this appeal subject an indigent defendant "only to a civil judgment that she [or he] cannot satisfy." (Dueñas, supra, 30 Cal.App.5th at p. 1167; see also id. at p. 1169.) Thus, the authorities prohibiting incarceration for indigence alone are inapplicable. (People v. Hicks, supra, 40 Cal.App.5th at p. 326, review granted Nov. 26, 2019, S258946; People v. Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted the petition for the writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation, but did not relieve him from any obligations in his probation order. (Id. at p. 117.) The court explained, "we do not hold 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.) In other words, "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them." (People v. Hicks, supra, 40 Cal.App.5th at p. 327, review granted Nov. 26, 2019, S258946.)
Further, "the fundamental policy question presented in Dueñas is a nettlesome one—namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?" (People v. Hicks, supra, 40 Cal.App.5th at p. 328, review granted Nov. 26, 2019, S258946.) This "is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature." (Id. at p. 329, review granted Nov. 26, 2019, S258946.)
We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (People v. Hicks, supra, 40 Cal.App.5th at p. 329, review granted Nov. 26, 2019, S258946; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; People v. Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided and defendant's claim pursuant thereto is without merit.
DISPOSITION
The judgment affirmed.
/s/_________
HULL, J. We concur: /s/_________
RAYE, P. J. /s/_________
RENNER, J.