People v. Son (2020) · DecisionDepot

People v. Son

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal May 29, 2020 No. F076252MPublished

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Holding. The court held that the trial court's imposition of court operations and facilities assessments without an ability-to-pay hearing was unconstitutional, requiring a remand for such a hearing, while affirming the restitution fine as it does not require such a hearing. The court also rejected the defendant's claim of structural error under McCoy v. Louisiana, finding that the defense theory of self-defense was consistent with the defendant's own trial testimony.

Issues

Whether trial counsel committed structural error under McCoy v. Louisiana by pursuing a self-defense theory.
Whether the trial court erred in failing to instruct the jury on involuntary manslaughter.
Whether the trial court erred in imposing court assessments and a restitution fine without an ability-to-pay hearing.

Disposition. remanded

Quotations verified verbatim against the opinion

“With regard to the court assessments, we conclude imposition of these assessments, without first giving the defendant an opportunity to request an ability to pay hearing to show he cannot pay them, is unconstitutional.”

“As for the restitution fine, we conclude that, in contrast to the court assessments, an ability to pay hearing is not constitutionally required before imposition of the restitution fine.”

“In cases where minimum fines are imposed, Penal Code section 1202.4, subdivision (c), precludes consideration of the defendant’s ability to pay.”

Filed 5/29/20 (unmodified opn. attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F076252 Plaintiff and Respondent, (Super. Ct. No.: BF150700A) v.

JOSEPH SON, ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] Defendant and Appellant.

THE COURT:

It is hereby ordered that the opinion filed herein on May 27, 2020, be modified as follows:

1. In the lead opinion, on page 28, the first sentence under the heading “A. Synopsis of Analysis,” is deleted and replaced with the following:

Son, at sentencing, was ordered to pay a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $280 restitution fine (§ 1202.4, subd. (b)).14

2. In Justice Snauffer’s concurring opinion, the second and third sentences of the second paragraph are deleted and replaced with the following:

In cases where minimum fines are imposed, Penal Code section 1202.4, subdivision (c), precludes consideration of the defendant’s ability to pay.

14 The court also imposed and stayed a matching $280 parole revocation restitution fine (§ 1202.45, subd. (a)). However, because this fine is essentially a corollary of the restitution fine imposed under section 1202.4, subdivision (b), we will not separately address it. (See § 1202.45, subd. (a).)

Except for the modification set forth above, the opinion previously filed remains unchanged.

This modification does not effect a change in the judgment.

SMITH, J.

WE CONCUR:

FRANSON, Acting P.J.

SNAUFFER, J.

Filed 5/27/20 (unmodified version)

CERTIFIED FOR PARTIAL PUBLICATION*

Related research

prison’s emergency room, where he was declared dead. Son, who was in a holding cell, remarked to Eveland: “Is he dead? He fell down twice and I helped him up.” Son was searched for contraband (including weapons) but none was found. Nor were any injuries detected on his body. Officer Robert Zaragoza photographed cell 228, which had been padlocked following Graham’s death. Zaragoza determined that “nothing was disturbed” in the cell. He explained: “[T]here was no struggle as I viewed the cell inside; however, I have been in numerous cells when I’ve done crime scenes, and I’ve discovered different evidence whereas this one I didn’t discover anything that would lead me to believe there was a struggle involved.” Zaragoza did not find any weapons in the cell or in the toilet. Zaragoza did, however, discover two letters sent to Son by another inmate, discussing the possibility of Son moving to a different cell.6 D. Graham’s Autopsy Forensic pathologist Robert Whitmore performed an autopsy on Graham’s body. Dr. Whitmore determined that the cause of death was “multiple blunt force trauma,” that in turn caused bleeding and impaired Graham’s ability to breathe. Dr. Whitmore’s conclusions were based on numerous injuries to Graham’s chest, abdomen, and neck. Each of Graham’s lungs had a large bruise and the lower lobes were internally torn, which would have required “[a] large force” because the chest had to be “completely compressed” to cause such damage. Graham suffered “multiple fractures” to his ribs and bled internally. His sternum was fractured twice, which was the reason his chest appeared concave. There was a hemorrhage to the pericardium, normally protected by the rib cage. There was a large periaortic hematoma to the superior mesenteric artery, contusions to the vena cava, bleeding in the intestinal cavity, a subscapular hematoma on the liver, a lacerated spleen, and contusions to the duodenum and large bowel. Graham’s

neck muscles had hemorrhaged, which was “consistent with strangulation or an attempted strangulation or a grabbing of the neck or a blow to the neck.” Graham had no injuries to his hands. Dr. Whitmore clarified that the chest injuries Graham suffered were not caused by CPR. He explained, a “large force” was “applied to the chest” to cause these injuries. The macerated lungs were not caused by CPR, but by squishing the chest so completely that it was rendered “flat.” As for the “sternal fractures,” while those could occur with CPR, “a twice fractured sternum” was “not very common in CPR. In addition, the fact that Nurse Bernal noticed a depression in Graham’s chest before she commenced CPR demonstrated that the injuries were not caused by CPR. Dr. Whitmore also noted that Graham suffered from chronic hepatitis C and associated liver cirrhosis, which would make a person weak and cause the person to bleed and bruise more easily than he would otherwise. However, Dr. Whitmore clarified that these diseases would not make rib and sternum fractures more likely, nor would they make tissues more prone to tearing. Following Graham’s death, Son was incarcerated at Corcoran State Prison. There, he told Officer Alonzo Aranda that he knew martial arts and would get Aranda tickets to his fights when he got out of prison. Son talked about his knowledge of martial arts with Aranda on at least three occasions. Son also told Aranda that were the latter to encounter problems with inmates, he should put them in Son’s cell and Son “would take care of ‘em like he did his last cellie.” E. Defense Son took the stand in his own defense and explained he was first arrested in 2008 and incarcerated in the county jail for three and a half years until he was sentenced to state prison. Once in prison, he was attacked on nine occasions by inmates and learned it was better for him to lose a fight because otherwise, as an Asian, he would suffer severe retaliation. When Son was moved to cell 228, his cellmate, Graham, repeatedly berated

explained: “There is no direct evidence that Son was trying to kill Graham. If you were trying to kill someone, you would go for their face and their skull. He’s got a small contusion right here and a tiny scratch on his head. That’s it.” Counsel argued that Son acted to defend himself when Graham brought out a knife. B. Analysis In McCoy, the defendant was charged with the first degree murder of three family members. (McCoy, supra, 138 S.Ct. at p. 1506.) “Throughout the proceedings, he insistently maintained he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went wrong.” (Ibid.) But defense counsel “eventually concluded that the evidence against McCoy was overwhelming and that, absent a concession at the guilt stage that McCoy was the killer, a death sentence would be impossible to avoid at the penalty phase.” (Ibid.) Defense counsel reported that McCoy was “‘furious’” when told, two weeks before trial was scheduled to begin, that counsel would concede McCoy’s commission of the triple murders. (Ibid.) McCoy told counsel “‘not to make that concession,’” and counsel was aware of McCoy’s complete opposition to telling the jury McCoy had killed the three victims; McCoy pressed counsel to push for acquittal. (Ibid.) Two days before trial was set to begin, McCoy sought to terminate counsel’s representation but the court denied the request, telling counsel, “‘[y]ou are the attorney,’” and “‘you have to make the trial decision of what you’re going to proceed with.’” (Ibid.) Once trial began, defense counsel told the jury in his opening statement that “there was ‘no way reasonably possible’ that they could hear the prosecution’s evidence and reach ‘any other conclusion than Robert McCoy was the cause of these individuals’ death.’” (McCoy, supra, 138 S.Ct. at p. 1506.) McCoy protested and, out of earshot of the jury, told the court that counsel was “‘selling [him] out’” by maintaining he “‘murdered [his] family.’” (Ibid.) The trial court reiterated that counsel was

“‘representing’” McCoy and told McCoy the court would not permit “‘any other outbursts.’” (Id. at p. 1507.) Continuing his opening statement, counsel told the jury the evidence is “‘unambiguous,’ ‘my client committed three murders.’” (Ibid.) McCoy testified in his own defense, “maintaining his innocence and pressing an alibi difficult to fathom.” (Ibid.) In his closing argument, defense counsel reiterated that McCoy was the killer. (Ibid.) The jury then returned a unanimous verdict of first degree murder on all three counts. At the penalty phase, defense counsel again conceded, “‘Robert McCoy committed these crimes,’ (citation), but urged mercy in view of McCoy’s ‘serious mental and emotional issues.’” (Ibid.) The jury returned three death verdicts. (Ibid.) Under these circumstances, the McCoy court reversed the judgment. McCoy drew a contrast between “[t]rial management,” which is “the lawyer’s province,” and “decisions [that] are reserved for the client,” which include “whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” (McCoy, supra, 138 S.Ct. at p. 1508.) McCoy clarified: “Autonomy to decide that the objective of the defense is to assert innocence belongs in [the] latter category.” (Ibid.) McCoy explained: “Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial.” (Ibid.) The court noted: “These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.” (Ibid.) “For McCoy, [the] objective was to maintain ‘I did not kill the members of my family.’” (Id. at p. 1510.) McCoy “opposed [defense counsel’s] assertion of his guilt at every opportunity, before and during the trial, both in conference with his lawyer and in open court.” (McCoy, supra, 138 S.Ct. at p. 1509.) Given this “stark scenario,” McCoy admonished

unintentional killing during the course of a felonious assault committed with criminal negligence.” “‘We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense.’” (People v. Licas (2007) 41 Cal.4th 362, 366; People v. Campbell (2015) 233 Cal.App.4th 148, 158 [same]; People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers) [“We review the trial court’s failure to instruct on a lesser included offense de novo [citations] considering the evidence in the light most favorable to the defendant.”].) We reject Son’s contention that the evidence warranted a sua sponte instruction on involuntary manslaughter. A trial court has a sua sponte duty to “‘“instruct the jury on all general principles of law relevant to the issues raised by the evidence.”’” (People v. Avila (2009) 46 Cal.4th 680, 704.) This includes the duty to “instruct fully on all lesser necessarily included offenses supported by the evidence.” (Breverman, supra, 19 Cal.4th at pp. 148- 149.) “In the interests of justice, this rule demands that when the evidence suggests the defendant may not be guilty of the charged offense, but only of some lesser included offense, the jury must be allowed to ‘consider the full range of possible verdicts—not limited by the strategy, ignorance, or mistakes of the parties,’ so as to ‘ensure that the verdict is no harsher or more lenient than the evidence merits.’” (Id. at p. 160.) Accordingly, if there is “‘“substantial evidence” [citation], “‘which, if accepted …, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser,”’” then the trial court must give an instruction on the lesser included offense. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) But “‘the existence of “any evidence, no matter how weak” will not justify instructions on a lesser included offense.…’ [Citation.] Such instructions are required only where there is ‘substantial evidence’ from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.” (People v. DePriest (2007) 42 Cal.4th 1, 50.) In other words, evidence is substantial if “a reasonable jury

could find [it] persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8; Breverman, supra, 19 Cal.4th at p. 162 [“the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury”].) “Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” (People v. Wilson (1967) 66 Cal.2d 749, 763; see also People v. Rodriguez (1969) 274 Cal.App.2d 487, 497.) Here, Son was charged with assault committed with malice aforethought, resulting in the victim’s death—effectively, a murder charge. Consequently, both the prosecutor and defense counsel referred, in closing arguments, to the charged offense as amounting to murder. The jury was instructed on malice aforethought—encompassing both express and implied malice—as an element of the charged offense. Specifically, the jury was instructed, in part: “There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for this crime. [¶] The defendant acted with express malice if he unlawfully intended to kill the person assaulted. [¶] The defendant acted with implied malice if: One, he intentionally committed an act; two, the natural consequences of the act were dangerous to human life; three, at the time he acted, he knew his act was dangerous to human life; and, four, he deliberately acted with conscious disregard for human life.” The jury was also instructed that the charged killing or murder would be reduced to voluntary manslaughter if the defendant had acted in the heat of passion or in imperfect self-defense. Brothers, supra, 236 Cal.App.4th at p. 30, clarified that “[b]oth voluntary and involuntary manslaughter are lesser included offenses of murder.”10 Brothers further

at p. 29.) “On appeal Brothers contend[ed] the court erred in failing to instruct the jury sua sponte on involuntary manslaughter.” (Id. at p. 26.) The Brothers court squarely addressed the question whether “a homicide committed without malice during the course of an inherently dangerous assaultive felony not otherwise amounting to felony murder was involuntary manslaughter.” (Brothers, supra, 236 Cal.App.4th at p. 33.) Brothers concluded such a homicide was indeed involuntary manslaughter. (Id. at pp. 33-34.) Thus Brothers explained: “Accordingly, an instruction on involuntary manslaughter as a lesser included offense must be given when a rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice during the course of an inherently dangerous assaultive felony.” (Id. at p. 34, italics added.) But Brothers cautioned that, ““‘the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense”’”; rather, “‘[s]uch instructions are required only where there is “substantial evidence” from which a rational jury could conclude’ the defendant committed the lesser, but not the greater, offense.” (Ibid.) Brothers argued substantial evidence warranted an instruction on involuntary manslaughter, given her testimony to the effect she did not know “‘this was going to happen.’” (Brothers, supra, 236 Cal.App.4th at p. 34.) The Brothers court rejected her claim because, “assuming Brothers meant she did not intend to kill Gates, intent to kill is an element of express, not implied, malice.” (Ibid.) Brothers noted “malice is implied when the defendant engages in an act the natural consequences of which are dangerous to life and acts with conscious disregard for human life.” Brothers concluded, “there was simply no evidence from which a reasonable juror could entertain a reasonable doubt that Brothers had acted in conscious disregard of the risk her conduct posed to Gates’s life.” (Ibid., italics added.)

The Brothers court explained that “Brothers’s own account unequivocally established she engaged in a deliberate and deadly assault.” (Brothers, supra, 236 Cal.App.4th at p. 34.) More specifically, Brothers “admittedly beat Gates repeatedly on the head and face with the large wooden broom handle with great force, causing blunt force trauma the deputy coroner testified was a contributing cause of death.” (Ibid.) The court further noted, “[t]here was no evidence of an accidental killing, gross negligence or Brothers’s own lack of subjective understanding of the risk to Gates’s life that her and her confederates’ conduct posed.” (Ibid.) The court therefore held: “On this record, the trial court had no sua sponte duty to instruct the jury on involuntary manslaughter.” (Ibid.; see People v. Guillen (2014) 227 Cal.App.4th 934, 1028 [involuntary manslaughter instruction unwarranted when the evidence left no room for reasonable doubt that the defendant acted with intent to kill or conscious disregard for human life]; see generally People v. Evers (1992) 10 Cal.App.4th 588, 596 [“If a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence. By contrast where the defendant realizes and then acts in total disregard of the danger, the defendant is guilty of murder based on implied malice” unless the malice is otherwise negated by heat of passion or imperfect self-defense.].) Brothers summed up its holding as follows: “In sum, when the evidence presents a material issue as to whether a killing was committed with malice, the court has a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense, even when the killing occurs during the commission of an aggravated assault. [Citations.] However, when, as here, the defendant indisputably has deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue is presented as to whether the defendant subjectively appreciated the danger to human life his or her conduct posed, there is no sua sponte duty to instruct on involuntary

manslaughter. [Citations.] Otherwise, an involuntary manslaughter instruction would be required in every implied malice case regardless of the evidence.” (Brothers, supra, 236 Cal.App.4th at p. 35, italics added; see People v. Cook (2006) 39 Cal.4th 566, 596 [“[Defendant] savagely beat [the victim,] to death. Because the evidence presented at trial did not raise a material issue as to whether [the] defendant acted without malice, the trial court was not obliged, on its own initiative, to instruct the jury on involuntary manslaughter as to [the victim].”].) Under Brothers’s holding, an involuntary manslaughter instruction was not warranted in the instant case either. Just as in Brothers, on the instant record, no rational jury could find that Son acted merely with criminal negligence. Indeed, even crediting Son’s testimony in its entirety, “there was simply no evidence from which a reasonable juror could entertain a reasonable doubt that [Son] had acted in conscious disregard of the risk [his] conduct posed to [Graham’s] life.” (Brothers, supra, 236 Cal.App.4th at p. 34, italics added.) Son admitted he savagely beat Graham, just as the defendant in Brothers admitted she had brutally beaten Gates. Son practiced mixed martial arts in professional “no rules” cage- and ring-fights; he testified he had “knock out capacity in both [his] arms.” Son acknowledged that physically he had the capacity to easily knock out Graham, who was not a mixed martial arts fighter (as Son conceded). Son testified he slammed Graham from “wall to wall,” “slammed [him] every direction,” as hard as he could. Thereafter, Son “didn’t want to give [Graham] a chance to swing at [him],” so he just “let it go and started striking.” He hit Graham in the torso “at least eight to twelve times nonstop,” again as hard as he could. Son explained, “[i]t was very fast and very rapid and very hard.” He also said he had been trained to hit fast, rapid, and hard. Graham suffered grievous injuries, revealing the brutality of the beating he suffered. Son’s blows caused Graham’s chest to collapse and pulverized it. Nurse Bernal, the first person to perform CPR on Graham, said she had “[n]ever” encountered

such severe chest injuries before. When Bernal performed CPR, Graham’s chest gave “no resistance.” Bernal explained: “There’s no bone structure. It had the consistency of like jello.” This was an unprecedented experience for Bernal in rendering CPR. The forensic pathologist who performed the autopsy of Graham’s body also described shocking injuries. He opined the manner of death was homicide and the cause of death was “multiple blunt force trauma.” The pathologist testified that both lungs were significantly bruised and the lower lobes of each were “torn inside, macerated.” He said these injuries were unusual and it would have taken a “large force” to lacerate a lung. He explained the lungs lie “in between the front and the back chest wall[s]” and “the walls have to come together and squish the lungs in between” to cause such injuries. In addition, Graham sustained “multiple fractures” of the rib cage, along with internal bleeding, indicating the fractures occurred while he was still alive. “The sternum was fractured twice, one at the upper portion and one at the lower portion,” resulting in the chest appearing concave. The pericardium, i.e., the sack in which the heart resides, had hemorrhaged, which was “indicative of a large force being applied to the chest.” Significant bruising and large contusions were evident around the aorta, the largest artery in the body, as well as around the inferior vena cava, the largest vein in the body, which injuries were consistent with blunt force trauma. In addition, Graham suffered bleeding in the intestinal cavity, a subcapsular hematoma (“blood blister”) on the liver, a lacerated spleen, and contusions on the duodenum and large bowel. These organs are relatively well protected inside the human body and do not bruise easily; however, in this instance they were damaged from blunt force impact. Graham’s neck muscles had also hemorrhaged, which was “consistent with strangulation or an attempted strangulation or a grabbing of the neck or a blow to the neck.” At the same time, Son did not raise a material issue as to whether he subjectively appreciated the danger to human life his conduct posed. On the contrary, Son was

experienced in mixed martial arts, had engaged in professional mixed martial arts fights, and had well-developed physical capabilities. It was also clear that Graham was “frail” and weakened, as he suffered from hepatitis C and associated end-stage liver cirrhosis. Despite the physical disparity between Graham and Son, Son repeatedly slammed Graham into walls and hit Graham non-stop, as hard as he could. In short, the evidence indisputably showed that Son “deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue [was] presented as to whether [he] subjectively appreciated the danger to human life [that his] conduct posed.” (Brothers, supra, 236 Cal.App.4th at p. 35.) Accordingly, a sua sponte instruction on involuntary manslaughter was not warranted and the trial court did not err in omitting one. Even assuming the court was required to give an involuntary manslaughter instruction, failure to do so would be harmless on the instant record. Failure to instruct on a lesser included offense supported by substantial evidence constitutes state-law error and is analyzed under the Watson standard of prejudice. (People v. Gonzalez (2018) 5 Cal.5th 186, 195-196 (Gonzalez), citing People v. Watson (1956) 46 Cal.2d 818, 836- 837; Thomas, supra, 53 Cal.4th at p. 814, fn. omitted [“The failure to instruct on a lesser included offense in a noncapital case does not require reversal ‘unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.’”].) “‘Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable

personnel records, the court must, for purposes of appellate review, make a record of the materials it examined. (People v. Mooc (2001) 26 Cal.4th 1216, 1229-1230.) We subsequently review the “documents examined by the trial court” to determine whether the trial court abused its discretion in refusing to disclose the contents of the personnel records it reviewed in the first instance. (Id. at p. 1229; Hughes, supra, at p. 330.) We have reviewed the transcripts of the Pitchess hearing the court held on July 19, 2017, in connection with Son’s motion for relevant personnel records of Officer Aranda. At the Pitchess hearing, the court reviewed the official personnel file of Officer Aranda maintained at the Corcoran State Prison. The court also confirmed that the custodians of record for the prison had made a thorough search for all personnel records for Officer Aranda. The trial judge did not include a copy of the records he reviewed, in the record of this case. Therefore, after this appeal was briefed, as part of creating a settled statement of the Pitchess proceeding, the superior court contacted the Department of Corrections to obtain the personnel file for purposes of our independent review. The trial judge who originally ruled on Son’s Pitchess motion, certified that the Department of Corrections provided two envelopes of documents, one of which contained the personnel file the judge had reviewed at the Pitchess hearing. The second envelope contained additional documents that were not before the trial court at the Pitchess hearing. We have reviewed all the documents provided by the Department of Corrections for purposes of this appeal. None of the documents are within the scope of Son’s Pitchess motion concerning Officer Aranda. Therefore, we cannot say the trial court abused its discretion in failing to disclose to Son any personnel records concerning Officer Aranda. IV. Fines and Fees In common with a great many other cases, this case raises the issues decided in Dueñas, supra, 30 Cal.App.5th 1157, involving the constitutionality of imposing court

those who can. A solvent defendant who is ordered to pay the assessments suffers the loss of the assessment amounts, but an indigent defendant under the same order experiences the web of consequences of being a delinquent debtor—loss of access to credit, declarations of delinquency on other debts that have cross-default provisions, actual defaults on other debts caused by the strain of attempting to satisfy the court- imposed debt, harm to employment and housing relationships and prospects, loss in some cases of opportunities for expungement of convictions and early termination of probation, and more—and is still on the hook for the court-ordered payment, plus collection fees and interest. This means it is more costly in real terms for indigent convicted defendants to have had access to courts in which to defend themselves, than it is for solvent convicted defendants to have had the same access. The situation is no different than it would be if, for instance, the cost of the court reporter’s transcript was not waived for an indigent criminal appellant but instead became a debt payable to the court upon affirmance of the underlying conviction. Just as the latter situation would be prohibited by United States Supreme Court precedents holding that the right of access to the criminal courts is a fundamental right and its exercise cannot constitutionally be curtailed on the basis of ability to pay, so too is the imposition, without regard to ability to pay, of user fees in the form of court assessments, prohibited by these precedents. On the other hand, it is not unconstitutional to impose the restitution fine without regard to ability to pay. Unlike the court assessments discussed above, the restitution fine is not a user fee collected from those who must use the courts, to fund the courts. Rather, it has been classified by our Supreme Court as a form of punishment. Furthermore, the United States Supreme Court has stated that the states’ enforcement of judgments arising from unpaid fines imposed as punishment, is not constitutionally limited by the indigency of defendants. A statutory regime under which an unpaid, punitive fine is converted

automatically to a jail term, regardless of ability to pay, is not constitutional; nor is a scheme whereby a fine is a condition of probation, and failure to satisfy that condition leads to incarceration, regardless of ability to pay. But we are not faced with situations like those in this case, as the restitution fine imposed here is a monetary form of punishment that, if unpaid, would result, not in incarceration, but in a monetary judgment against the defendant. In sum, our constitutional jurisprudence draws a critical distinction between user fees (in the form of nonpunitive court assessments) and monetary punishments (in the form of punitive fines), because imposition of the former implicates the constitutional right of access to the courts while imposition of the latter does not. Accordingly, we agree with Dueñas to the extent it holds that, under the Constitution, a defendant must have the opportunity to request an ability to pay hearing before court assessments are imposed at sentencing. However, in light of the United States Supreme Court precedents clarifying that, under the Constitution, indigency is not a bar to enforcement of monetary judgments arising from unpaid fines imposed as punishment, we disagree with Dueñas to the extent it further holds an ability to pay hearing is constitutionally required before imposition of the restitution fine. B. Dueñas Opinion Dueñas was convicted of one misdemeanor count of driving with a suspended license. The trial court placed her on 36 months’ summary probation with 30 days in jail and a $300 fine as probation conditions, but offered to impose nine more days in jail as an alternative to the fine. Dueñas was disabled, unemployed, and homeless; she, her husband, and their two children lived alternately at her mother’s home and his mother’s home; and they had no money other than subsistence benefits they spent on basic necessities. Her clothing and telephone were her only assets. Her driver’s license had long been suspended because of three citations she had received as a minor and had never

been able to pay. She had served jail time in lieu of fines in the past for driving while unable to pay these citations, and for each such conviction, assessments and fees were added that she also was unable to pay. She agreed to take the nine extra days in jail instead of adding another $300 to the unpayable debts. But there was no way for her to avoid the addition of a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), a $150 restitution fine (§ 1202.4), and a probation revocation restitution fine, stayed pending completion of probation (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) Dueñas asked the trial court for a hearing on her ability to pay the assessments and the fine. A hearing was eventually held and the court found Dueñas indigent based on her uncontested declaration. The court waived outstanding fees that had been imposed on her in prior cases to pay for the services of the public defender. It concluded, however, that the court facilities assessment and court operations assessment were mandatory regardless of ability to pay. It also determined that, despite the inability to pay, there were no “compelling and extraordinary reasons” as required by section 1204.4 for waiver of the restitution fine. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal reversed. It observed that the court facilities assessment and court operations assessment have been held to be nonpunitive fundraising measures, but also pointed out that for those unable to pay, they are punitive in effect, imposing hardship never experienced by those who can pay. This hardship is not limited to the unpayable indebtedness itself, but includes collection practices that can destroy the defendant’s access to credit, interfere with higher-order commitments, such as the responsibility to make child care support payments, damage employment prospects and employment relationships, and otherwise impair the defendant’s ability to be productive and functional after serving his or her time. (Dueñas, supra, 30 Cal.App.5th at pp. 1164-

1168.) And the restitution fine, though distinct from direct victim restitution, is acknowledged by our Supreme Court as being frankly punitive. (Id. at pp. 1169-1170.) The appellate court ruled that a judicial finding of a present ability to pay assessments and fines is required before a defendant can be ordered to pay them, despite the mandatory language in the statutes and the lack of a statutory provision requiring a finding of ability to pay. Imposing requirements that are formally the same for all defendants but have punitive consequences for the indigent alone is “fundamentally unfair.” (Dueñas, supra, 30 Cal.app.5th at p. 1168.) As Dueñas had in fact already been found indigent by the trial court, the assessments were simply reversed. For the restitution fine, the court concluded that the express language prohibiting use of inability to pay as a consideration for the sentencing court could best be reconciled with constitutional requirements by having the trial court impose the fine and stay it until, at some later time when Dueñas’s circumstances might have changed, the People might be able to demonstrate her ability to pay at a hearing convened by the court for that purpose. (Dueñas, supra, at pp. 1168-1169, 1172-1173.) (i) Dueñas’s Reliance on Griffin v. Illinois In reaching its conclusion, the Dueñas court discussed two distinct categories of legal precedents. The first category is represented by Griffin v. Illinois (1956) 351 U.S. 12 (Griffin), in which the United States Supreme Court held that the due process and equal protection clauses of the Fourteenth Amendment guarantee an indigent criminal appellant access to the entire record of his or her trial, including the court reporter’s transcripts of the live proceedings, at no cost, since there would be no opportunity to bring an effective appeal without these materials or some form of equivalent. (Id. at pp. 18-20.) Griffin is based on what later became known as the basic or fundamental right of access to the criminal (and in limited situations civil) courts, which, under both a due process analysis and an equal protection analysis, the government cannot deny based on

inability to pay fees. (See, e.g., Tennessee v. Lane (2004) 541 U.S. 509, 522 (Tennessee) [access to courts one of the “basic constitutional guarantees, infringements of which are subject to more searching judicial review”]; M.L.B. v. S.L.J. (1996) 519 U.S. 102, 110- 116 [summarizing development of doctrine on basic right to access to courts].) The Dueñas court maintained that although the assessments and fine at issue did not prevent Dueñas from using the court to defend against the charges, they still burdened her exercise of the right of access to the court in a way, and to a degree, that a solvent defendant’s exercise of the right would not be burdened, and therefore contravened the principle underlying Griffin. As will be seen, this is the part of Dueñas we accept, but only as to the assessments, which are correctly classified as nonpunitive fees, given the purpose (court funding) they are designed to serve. The Griffin analysis is, however, inapplicable to the restitution fine, which is a monetary punishment and serves a punitive purpose. Since, unlike the court assessments, it is not a user fee is designed to fund the courts, it does not implicate the right of access to the courts. Stated differently, when the Legislature creates a monetary charge to be imposed as punishment for crime, the charge cannot logically be thought of as affecting a defendant’s access to the courts, regardless of whether the defendant is indigent or not. Such a fine, regardless of what the proceeds are actually used for by the state, is not in any sense a financial condition or user fee imposed on defendants’ exercise of the right of access to the courts. Instead, it is a punishment imposed for defendants’ crimes. In view of this distinction, the United States Supreme Court has held that the indigency of a defendant is no bar to enforcing a money judgment for a punitive fine against a defendant who is unable to pay it. (ii) Dueñas’s Reliance on In re Antazo & Bearden v. Georgia The second category of cases the Dueñas court relied on is represented by In re Antazo (1970) 3 Cal.3d 100 (Antazo) and Bearden v. Georgia (1983) 461 U.S. 660

(Bearden). The central concept in these cases is the fundamental unfairness of situations in which a defendant is incarcerated solely because of his or her inability to pay fines and other exactions imposed by criminal courts. In Antazo, a prisoner was serving time in a county jail after a trial court placed him on probation, conditioned on payment of a fine of $2,500 plus a penalty assessment of $625. He could not pay, so the court allowed him to satisfy the probation condition instead by serving one day in jail for each $10 of the unpaid amount. (Antazo, supra, 3 Cal.3d at pp. 103-105.) Our Supreme Court held that giving an indigent defendant a “Hobson’s choice” between incarceration and paying fines he could not afford, violated the equal protection clause of the Fourteenth Amendment. (Antazo, supra, at pp. 103-104.) “[O]ur holding,” the court stated, “is simply that an indigent who would pay his fine if he could, must be given an option comparable to an offender who is not indigent.” (Id. at p. 116.) In other words, in any situation in which a solvent defendant would be offered a choice between payment and imprisonment, an indigent defendant cannot constitutionally be confronted with imprisonment as the only outcome that is a practical possibility. In Bearden, the trial court placed the defendant on three years’ probation, conditioned on payment of a $500 fine and $250 in restitution. He paid the first $200 with a loan from his parents, but was soon laid off from his job and, being illiterate and having only a ninth-grade education, could not find another. He had no income and no assets and did not pay the remaining debt before the deadline. After a hearing, the court applied a statute requiring automatic revocation of probation, entered the defendant’s conviction, and remanded him into custody to serve the remainder of the three-year period. (Bearden, supra, 461 U.S. at pp. 661-664.) The United States Supreme Court held 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

“[O]ur own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’” (Griffin, supra, 351 U.S. at p. 17, italics added.) Subsequent cases applied Griffin to other fees and costs of using the criminal courts. (E.g., Burns v. Ohio (1959) 360 U.S. 252 [indigent defendant could not be charged filing fee for motion for leave to appeal to state supreme court from judgment of intermediate appellate court]; Douglas v. California (1963) 372 U.S. 353 (Douglas) [indigent defendants entitled to appointed appellate counsel]; Lane v. Brown (1963) 372 U.S. 477 [unconstitutional to condition free transcript for indigent defendant seeking to appeal from denial of postconviction relief, on consent of public defender]; Roberts v. LaVallee (1967) 389 U.S. 40 [indigent defendant entitled to free transcript of preliminary hearing for use at trial]; Mayer v. Chicago (1971) 404 U.S. 189 [indigent defendant entitled to adequate record with no fee to appeal from conviction although a fine, not incarceration, was the only punishment provided by the statute of conviction].) The purpose of the requirement challenged in Griffin, i.e., that appellants cover the cost of trial transcripts, was simply to get the transcripts paid for by those who used them, in effect a user fee. There was no suggestion that collecting the cost of transcripts from appellants had anything to do with punishing them. In other words, the price of a transcript paid by appellants was effectively the same as an administrative fee collected from litigants to cover part of the state’s costs of furnishing the proceedings. California’s assessments for court costs, although levied only against the convicted, have been held by California courts merely to be user fees charged to a large segment of court users for the purpose of funding the courts, and not to be any part of convicted defendants’ punishments. This conclusion is consistent with the statements of purpose contained in the assessment statutes themselves. (People v. Alford (2007) 42

obviates the constitutional violation. The fact that the differential burden on access is of a different kind here—a higher price in the form of a web of counterproductive hardships, rather than a lock on the door—does not make it constitutional. It seems very improbable that in Griffin, the state could have cured its violation by charging for trial transcripts after the appeal was over rather than before it began, and converting the charge to a debt for those unable to pay. We are not aware of any authority stating that where imposition of court fees on the indigent is unconstitutional, a loan would be as good a constitutional fix as a waiver. New Jersey did, in fact, attempt to respond to Griffin in something like this manner. Rinaldi v. Yeager (1966) 384 U.S. 305 was a challenge to a New Jersey statute under which those convicted of felonies and sentenced to prison terms—and no others— were required to pay transcript fees, without regard to ability to pay, after unsuccessful appeals. The high court deliberately avoided the question of whether this scheme was inconsistent with Griffin because it placed a burden on the exercise of the right to appeal that was effectively heavier for the indigent than for others. It decided instead that there was an equal protection violation because the fees were imposed only on those who got prison sentences; all other convicts did not have to pay. The court’s analysis was that the classification of those who got prison sentences versus those who did not, lacked a rational basis. (Rinaldi, supra, 384 U.S. at pp. 306-309.) Nevertheless, in summing up, the court stated: “We may assume that a State can validly provide for recoupment of the cost of appeals from those who later become financially able to pay. But any such provision must, under the Equal Protection Clause, be applied with an even hand.” (Id. at p. 311, italics added.) Thus, even when declining to decide whether a state could solve its Griffin problem by charging a fee after a proceeding instead of before, the high court still assumed a determination (at the time of sentencing or thereafter) of ability to pay (present or future) would have to be made before the fee could be assessed and collected.

Another context in which the constitutionality of laws requiring defendants to pay costs of using the criminal courts is that of recoupment of the cost of providing appointed counsel. Statutes of this kind have been upheld, but the fact that they require a prior finding that the defendant is able to pay, or at some time will be able to pay, is among the reasons for their validity. (See, e.g., Fuller v. Oregon (1974) 417 U.S. 40, 52-54; Donovan v. Commonwealth (Ky.App. 2001) 60 S.W.3d 581, 584-585.) The California statute on that topic (§ 987.8) has been upheld against a constitutional challenge for this reason, among others. (People v. Amor (1974) 12 Cal.3d 20, 26.) Griffin and some of its progeny were accompanied by dissents to the effect that under classical liberal capitalism, the political and economic system our Constitution presupposes as its foundation, the government has no responsibility to equalize wealth and thus none to mitigate the differential effects on the rich and the poor of the costs of using the criminal process. According to these dissents, it was not incompatible with our constitutional order to make access to various aspects of the criminal process difficult or impossible for some yet possible or easy for others. (See, e.g. Griffin, supra, 351 U.S. at pp. 34-39 (dis. opn. of Harlan, J.); Douglas, supra, 372 U.S. at pp. 360-363 (dis. opn. of Harlan, J.).) As one dissenter put it, laws under which expense renders parts of the criminal process inaccessible to the indigent “do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States ‘an affirmative duty to lift the handicaps flowing from differences in economic circumstances.’ To so construe it would be to read into the Constitution a philosophy of leveling that would be foreign to many of our basic concepts of the proper relations between government and society.” (Douglas, supra, 372 U.S. at p. 362 (dis. opn. of Harlan, J.).) The same justice wrote of the “natural disabilities” and “natural disadvantages” afflicting the indigent in legal and other matters, deficiencies that he argued a state had no obligation, under the Constitution, to “alleviat[e]” or “remove.”

(Griffin, supra, 351 U.S. at pp. 34-36.) And in another curious aside about what is and is not natural in the sphere of equality and inequality in the context of access to the criminal courts, a different justice referred to the holding of Douglas (and, presumably, similar cases) as “this new fetish for indigency.” (Douglas, supra, 372 U.S. at p. 359 (dis. opn. of Clark, J.).) The basic philosophical orientation reflected in these dissents was, however, never adopted by the high court, at least in the context of the right of access to the courts. Even at the peak of the cold war—when these seminal cases on the right of access to the courts were decided—a time when official and public enmity to the ideology of the Soviet Union was at its high water mark and every form of social equity might be mislabeled “communist” by some, the high court never went so far as to say “tough luck” to the poor in the context of access to the criminal courts. The Supreme Court’s majority can thus be said to have chosen deliberately, over the protestations of colleagues, to somewhat remove the issue of access to the criminal courts from the influence of individuals’ relative success or failure as participants in a market economy. It has never wholly removed it from that influence, of course. The Constitution is not violated by the fact that some defendants can afford better representation than others, for example. The case law is instead about establishing limits beyond which the influence of criminal defendants’ financial condition must not extend. In this case, we deal not with the ability to afford things and services that make a proceeding meaningful—like trial transcripts or counsel on appeal—but with something even more basic: the ability to afford the admission ticket. The assessments at issue here, exacted from convicted defendants to help defray court costs, have been framed by our Legislature and courts as the price of simply being a party defendant who has litigated unsuccessfully. The debt is imposed regardless of the defendant’s ability to pay, and thus is equal in a formal and superficial sense; the reality is that the cost is much

Griffin was decided before the United States Supreme Court developed its familiar framework of three levels of review (rational basis review, intermediate scrutiny, and strict scrutiny) for substantive due process and equal protection cases. In fact, all the United States Supreme Court cases we have found holding that fees or costs burdening court access for the indigent violate the due process or equal protection clauses of the Fourteenth Amendment, reached their conclusions without using that framework. The framework can readily be applied to the constitutional problem presented here, however, and it leads to the same result as to the constitutionality of the court assessments as we reached above. As discussed below, applying the “levels of scrutiny” framework also counters the argument that there is no infringement of the right of access to the criminal courts because the assessments in question are levied at the end of the proceeding at issue, not before it begins, and thus do not serve to block court access. We will focus on the equal protection clause, but the high court has noted that “[d]ue process and equal protection principles converge in the Court’s analysis” in cases considering the constitutionality of the differential impact of fines and fees, and the same results are reached under both the due process and equal protection clauses. (Bearden, supra, 461 U.S. at p. 665.) Strict scrutiny applies in an equal protection case when the challenged law uses a suspect classification to burden discriminatorily any of a wide variety of rights and interests, or uses any classification to burden discriminatorily a fundamental right, within the meaning of the terms “suspect” and “fundamental” as developed in case law on equal protection and substantive due process principles. (Plyler v. Doe (1982) 457 U.S. 202, 216-218.) Higher versus lower economic status or financial means is not a suspect classification. (San Antonio Independent School Dist. v. Rodriguez (1973) 411 U.S. 1, 27-28.) Access to courts, however, has been recognized by the Supreme Court as one of the “basic constitutional guarantees, infringements of which are subject to more searching

obvious, but hardly the only, possibility. Consequently, the laws requiring the imposition of the court facilities and court operations assessments without regard to a defendant’s ability to pay fail strict scrutiny and violate the equal protection clause. Furthermore, the fact that these laws are far from narrowly tailored and fail strict scrutiny, itself refutes the notion there was no constitutional violation because the assessments in question were imposed at the end of the proceedings and did not serve to block access to the court entirely, as was the case in Griffin (where indigent defendants could not move forward with their appeals because of the prohibitive cost of obtaining a trial transcript). Given our conclusion that the Constitution prohibits imposition of the court operations and court facilities assessments on those who are unable to pay and would therefore suffer the consequences of delinquent debt from imposition of these assessments, it follows that, prior to imposing such assessments, courts must give defendants an opportunity to request an ability to pay hearing for purposes of showing they are in fact unable to pay these assessments. Son did not have an opportunity to request an ability to pay hearing to make a showing that he could not pay the court assessments imposed at sentencing. Accordingly, “no evidence exists in the record from which to infer any findings in this regard.” (People v. Castellano (2019) 33 Cal.App.5th 485, 490 (Castellano).) We recognize that the court assessments at issue amount collectively to $70 and that it is tempting to simply presume that Son would be able, in all likelihood, to pay this sum. Indeed, the easy approach would be to find that denial of the opportunity to request an ability to pay hearing was harmless in Son’s case. The People urge us to do precisely that, arguing that the trial court’s imposition of the court assessments, without giving Son the opportunity to request an ability to pay hearing, was harmless because Son is an “able-bodied inmate” serving a “lengthy sentence.” However, the issue of Son’s inability

to pay was not addressed in the trial court and it would be inappropriate to presume that the existing, and necessarily incomplete, record definitively precludes Son from demonstrating an inability to pay. To the extent the People’s argument implies Son should be presumed able to pay the court assessments based on actual or potential prison employment, we reject that suggestion under the circumstances. While there is ample authority supporting the proposition that a prisoner’s ability to pay fines and fees may be assessed on the basis of anticipated prison wages (see, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035), reliance on that notion is purely speculative at this juncture, given the absence of a record on the issue and the fact that not all inmates are eligible for paid positions, which are considered a privilege and are subject to various restrictions and requirements. (Cal. Code Regs., tit. 15, §§ 3040, 3041.1.) Nor may we presume that, to the extent Son is unable to pay the court assessments, his status as an evidently long-term prisoner completely immunizes him from any and all consequences of being a delinquent debtor. A limited remand is therefore warranted to give Son the opportunity to request a hearing to present evidence demonstrating his inability to pay the court assessments imposed by the trial court. (Castellano, supra, 33 Cal.App.5th at pp. 490-491.) Son bears the burden of raising the issue of his inability to pay the court assessments and to support that claim with relevant evidence. (Ibid.) Should Son request an ability to pay hearing for this purpose, the trial court may consider all relevant factors in determining whether Son is able to pay the assessments, including the likelihood of prison pay during the period of incarceration to be served (with the caveat that other fines, beyond the instant court assessments, may also have to be paid out of any prison wages Son may earn). If the trial court determines Son is unable to pay the court assessments, they must be stricken. (Id. at p. 490.)

indigent defendant longer jail term than maximum available for solvent defendant, just because indigent cannot pay fine imposed as part of sentence]; Tate v. Short (1971) 401 U.S. 395 (Tate) [conversion of traffic fine to jail time based solely on defendant’s inability to pay unconstitutional].) All these cases are about the fundamental unfairness of sending a person to jail due to indigency, i.e., something beyond that person’s control. Dueñas undertakes to extend this theme of fundamental unfairness to the situation here (i.e., the imposition of restitution fines as punishment), with the hardships attendant on delinquent debt taking the place of jail time as an unacceptable consequence of the inability to pay. The trouble with this attempted extension is that it is in conflict with the body of cases it would extend. As a proviso to the proposition that fines cannot be converted to incarceration just because the defendant cannot pay them, the United States Supreme Court has made it sufficiently clear that fines imposed as punishment on their own, without conversion to incarceration as a consequence of being unable to pay, need not take account of ability to pay to be constitutionally acceptable. This rule emerges from the high court’s reasoning in Williams, supra, on the way to the conclusion that the Constitution prohibits extension of a jail term beyond the maximum otherwise available, based on inability to pay a fine alone. The court emphasized that the constitutional difficulty arose from the challenged law’s provision of jail time contingent upon nonpayment of a fine imposed without regard to ability to pay. There was no constitutional difficulty in the simple imposition of a fine without regard to ability to pay, where nonpayment would result merely in enforcement of a judgment for the debt. The court explained, were it otherwise, an indigent defendant, convicted of an offense punishable by jail time or a fine, could not, consistent with the Constitution, receive jail time based on an inability to pay a fine alone, but also could not be fined because of inability to pay. Thus, in a case in which jail time was only warranted by inability to pay

“The State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction [sic; one or the other punishment].” (Williams v. Illinois, supra, 399 U.S. at p. 244.) The point that the Constitution does not prevent a state from enforcing a money judgment for a punitive fine against an indigent defendant was reiterated in Tate, supra, 401 U.S. at page 399, and Bearden, supra, 461 U.S. at page 672. While the case law is clear that indigence alone cannot be the basis for otherwise equal punishments to have worse secondary consequences for the indigent, all the cases focus on the secondary consequence of being incarcerated on account of inability to pay a fine. This rather specific discussion would seem to foreclose reliance on a general principle that indigence alone must not be allowed to cause otherwise equal punishments to have worse secondary consequences for the indigent. In other words, in specifically focusing on incarceration, the cases do not appear to support the idea that the Constitution prohibits a broad array of secondary consequences of otherwise equal punishment, for the indigent; and the particular consequence of being subject to enforcement of delinquent debt is, in the context of punishment, singled out as one that does not trigger a constitutional violation. The specific discussion of enforcement of punitive fines against indigent defendants also reinforces the conclusion that the access-to-the-courts jurisprudence does not support the view that fines imposed as punishment can be treated as if they were barriers to access to the courts and subject to constitutional regulation accordingly. The Supreme Court simply says flatly that there is no difficulty in reducing indigents’ unpaid punitive fines to judgment and then enforcing the judgment.

Finally, we can once again use the strict scrutiny/rational basis framework as a sort of cross-check to confirm the above conclusion that the imposition of the restitution fine as a punishment without reference to ability or inability to pay is not unconstitutional. The right burdened by imposition of the nonpunitive assessments (i.e., user fees) , as noted in our discussion above, is the fundamental right of access to the courts. When it comes to punitive fines, however, we deal only with an interest in not being subject to punitive fines one cannot afford to pay, or not experiencing on account of indigence worse consequences from the imposition of punitive fines than those suffered by the solvent. Nothing of the latter sort—unlike access to the courts—has ever been held to be a fundamental right in the context of equal protection or substantive due process. And, as mentioned, the classification of rich and poor is not a suspect classification. Therefore, the applicable level of review for assessing the constitutionality of the restitution fine is relatively deferential rational basis review. (Heller v. Doe (1993) 509 U.S. 312, 319 (Heller); Washington v. Glucksberg (1997) 521 U.S. 702, 728.) Under rational basis review, a challenged classification is consistent with the equal protection clause if “there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” (Heller, supra, 509 U.S. at p. 320.) Neither the legitimate purpose nor the rational relationship need ever have been spelled out by legislators or other government actors who chose to make use of the classification. Instead, the rational basis of the challenged scheme need only be “‘reasonably conceivable’” in the mind of the court reviewing it. (Ibid.) The standard is thus highly deferential. The state’s interest in using fines for punishment is a legitimate government interest. The use of fines to deter and punish crimes can no doubt be criticized on various grounds, including the fact that the differences in individuals’ means can result in substantial differences in the effectiveness of deterrence and the proportionality of

punishment. But such criticisms hardly render illegitimate the government’s interest in using fines to punish. What conceivable rational relationship is there between the state’s interest in using fines as punishment and its toleration of the differing effects of the same fines on defendants with and without the ability to pay them? Taking account of defendants’ ability to pay would add administrative complexity and expense to the process of imposing fines. It may also be true that not taking account of defendants’ ability to pay complicates the process of fining defendants and makes it wasteful, resulting in fruitless expenditure of resources in attempting to collect money from those who have none. But the state’s action need not be particularly efficient or effective to pass the rational basis test. Further, as the Supreme Court suggested in Williams, Tate, and Bearden, accepting the harsher impact of the imposition of debt on defendants who cannot pay it (i.e., indigent defendants), is a rational alternative to imposing no sanction or a lesser sanction than others suffer, when it comes to punishment for violating laws that rely on fines wholly or in part for their enforcement. Consequently, the imposition of the restitution fine without regard to defendants’ ability to pay survives rational basis review and, in turn, is not unconstitutional. E. Conclusion To summarize the above in the smallest compass, we can state our separate holdings on the nonpunitive court facilities and court operations assessments, and on the punitive restitution fine, using both the older fundamental fairness language and the newer strict scrutiny/rational basis language in our jurisprudence, as follows: 1.a. The nonpunitive court facilities and court operations assessments may not be imposed on an indigent defendant because it is fundamentally unfair to grant some defendants access to a court in which to defend against criminal accusations only in conjunction with the creation of debts overwhelming to them (on account of their

indigency), while others are granted access without being saddled with overwhelming debts (on account of their solvency). 1.b. The nonpunitive court facilities and court operations assessments may not be imposed on a defendant who is unable to pay because: these charges are imposed on court users for use of the court, burdening their exercise of the fundamental right of access to the criminal courts; their imposition burdens those for whom they are unaffordable more than those for whom they are affordable, triggering an equal protection analysis under strict scrutiny; the difference in the burden on the two groups’ rights to access to the courts is not necessary to further the government’s interest in funding the courts (not narrowly tailored) because there are many ways to fund the courts that do not involve any such differential burden; and so the scheme fails strict scrutiny. 2.a. The restitution fine, being a punishment, can properly be imposed on a defendant who is unable to pay it because, unlike in the case of imposition of jail time as a consequence of being unable to satisfy a monetary punishment, there is no fundamental unfairness in facing enforcement of a money judgment for a delinquent debt as a consequence of being unable to satisfy a monetary punishment. Indeed, imposition of monetary fines without regard to ability to pay is necessary to ensure compliance with laws that rely wholly or in part on fines for their enforcement. 2.b. The restitution fine can properly be imposed on a defendant who is unable to pay it because it is imposed for punishment; there is no fundamental right not to be burdened by a punitive fine; the distinction between those who can and cannot afford to pay a fine is not a suspect classification; and imposition of fines without reference to ability to pay is rationally related to the state’s goal of punishment by fines because such punishment can be more easily administered without first determining each defendant’s ability or inability to pay, among other reasons.

counsel to have on a list of objections to be made in the hope that the law might change someday. The People, and some Court of Appeal panels, maintain that Dueñas error is forfeited if not raised in pre-Dueñas proceedings in the trial court, but this contention is untenable. The People rely on two propositions that are well-worn in this context, but, in this case at least, fictitious. The first is that if someone has anticipated the change, then the change ought to have been foreseen by reasonable defense counsel generally. The People invoke this proposition when they remark that Dueñas herself raised the issue in the trial court. But the inference that all other defense counsel ought to have foreseen a change in the law is not a valid one. The second fictitious proposition is that because a new law is based on old principles, all lawyers can rightly be expected to see the new law coming, because they are presumed to know the old principles. The Court of Appeal in People v. Frandsen (2019) 33 Cal.App.5th 1126, cited by the People in this case, unintentionally revealed the fatal trouble with this notion, at least as applied to Dueñas. Frandsen concluded that the Dueñas issue was forfeited by failure to raise it in the trial court because the holding of Dueñas “flowed from Griffin v. Illinois (1956) 351 U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 461 U.S. 660,” and indeed even “[t]he Magna Carta prohibited civil sanctions that were disproportionate to the offense or that would deprive the wrongdoer of his means of livelihood.” (Frandsen, supra, at pp. 1154-1155.) But the fact that the old principle had not previously been applied in the new manner, despite the old principle’s continuous existence since 1983, 1970, 1956, or 1215, is a reason why the new application would be unexpected. The use of weak reasons to find the first wave of appellate challenges based on new case law to be forfeited, when almost no one foresaw the new law and thus did not

so the defendant’s “present ability to pay” (Dueñas, supra, 30 Cal.App.5th at p. 1164) could be determined before assessments were levied for a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). (Dueñas, supra, at p. 1164.) The Dueñas court also concluded the minimum restitution fine of $150 (§ 1202.4, subd. (b)(1)) had to be stayed. The appellate court reached that conclusion despite section 1202.4 barring consideration of a defendant’s ability to pay unless the judge is considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas held that “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.” (Dueñas, supra, at p. 1164.) Subsequently, a different panel of the same court that decided Dueñas rejected the argument that Dueñas places a burden on the People to prove a defendant’s ability to pay in the first instance. (People v. Castellano (2019) 33 Cal.App.5th 485, 489–490 (Castellano).) Castellano clarifies that the defendant in Dueñas had demonstrated her inability to pay in the trial court and, only in that circumstance, had the appellate court concluded fees and assessments could not constitutionally be assessed and restitution must be stayed until the People proved ability to pay. (Castellano, supra, at p. 490.) Thus, “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.” (Ibid.) According to the Dueñas court, the defendant lost her driver’s license because she was too poor to pay her juvenile citations. She continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as “cascading consequences” stemming from “a series of criminal proceedings driven by, and contributing to, [the defendant’s] poverty.” (Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.)

Dueñas is inapplicable in the present matter. In contrast to Dueñas, appellant’s incarceration was not a consequence of prior criminal assessments and fines. He was serving a life sentence for a 1990 torture conviction in violation of Penal Code section 207. Appellant was not caught in an unfair cycle, and he could have avoided the present convictions regardless of his financial circumstances. Dueñas is distinguishable and has no application to this case. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1054– 1055 (Lowery); People v. Caceres (2019) 39 Cal.App.5th 917, 928–929 [declining to apply Dueñas’s “broad holding” beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 [“Dueñas is distinguishable.”].) Bad facts make bad law. Even if Dueñas is applicable, the trial court did not violate appellant’s constitutional rights when imposing the disputed fees and fines without conducting an ability to pay hearing. The Dueñas defendant presented compelling evidence the imposed assessments resulted in ongoing unintended punitive consequences. The Dueñas court determined those unintended consequences were “fundamentally unfair” for an indigent defendant under principles of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court noted the imposed financial obligations were also potentially unconstitutional under the excessive fines clause of the Eighth Amendment. However, Dueñas stated “[t]he due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that ‘[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.’ [Citation.]” (Dueñas, supra, at p. 1171, fn. 8.) This court has declined to expand Dueñas’s holding beyond the unique facts found in Dueñas. In Lowery, supra, 43 Cal.App.5th 1046, two defendants were convicted for a series of armed robberies, and various fees, fines and assessments were imposed against them. (Id. at pp. 1048–1049.) Based on Dueñas, the defendants in Lowery challenged the imposition of some of those financial obligations. The Lowery court, however, rejected a due process challenge based on Dueñas. The Lowery court noted the “unique

People v. Son

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SMITH, J.

SNAUFFER, J.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SMITH, J.

SNAUFFER, J. 1

AI Brief