California Court of Appeal Jan 29, 2021 No. E071300Unpublished
Filed 1/29/21 P. v. Delp CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071300
v. (Super.Ct.No. RIF1605679)
JIMMIE LEE DELP, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.
Affirmed in part; reversed in part with directions.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Arlene A. Sevidal, Randall D. Einhorn and Susan Elizabeth Miller, Deputy Attorneys
General, for Plaintiff and Respondent.
1
A jury convicted Jimmie Lee Delp of three counts of committing lewd and
lascivious acts on a child under 14 years of age (Pen. Code, § 288, subd. (a), unlabeled
statutory citations refer to this code) against more than one victim. (§ 667.61, subd.
(e)(4).) The trial court sentenced Delp to two consecutive and one concurrent 15-year-to-
with a challenge under this provision, our task is to determine “whether a particular
penalty given ‘“is so disproportionate to the crime for which it is inflicted that it shocks 1 the conscience and offends fundamental notions of human dignity.”’” (People v. Cole
(2004) 33 Cal.4th 1158, 1235.) Where there are no underlying disputed facts, it is a legal 2 question whether a sentence constitutes cruel or unusual punishment. (People v.
Mantanez (2002) 98 Cal.App.4th 354, 358.)
1 The inquiry is slightly different under the Eighth Amendment to the United States Constitution, which prohibits the infliction of “cruel and unusual” punishment rather than “cruel or unusual” punishment. (Baker, supra, 20 Cal.App.5th at p. 723.) However, Delp raises his challenge under the state constitutional provision alone, so we limit our analysis to that topic. 2 Delp didn’t raise this argument in the trial court. Although that ordinarily would forfeit the argument on appeal, we exercise our discretion to address the argument because it presents an important question of law that requires no further factual [footnote continued on next page]
19
We employ a three-part analysis to determine whether a sentence is grossly
disproportionate. (People v. Johnson (2010) 183 Cal.App.4th 253, 296.) “First, we review
‘the nature of the offense and/or the offender, with particular regard to the degree of
danger both present to society.’” (Ibid.) This analysis requires consideration of “‘the
circumstances of the offense, including the defendant’s motive, the extent of the
defendant’s involvement in the crime, the manner in which the crime was committed, and
the consequences of the defendant’s acts,’” as well as “‘the defendant’s age, prior
criminality[,] and mental capabilities.’” (People v. Cole, supra, 33 Cal.4th at p. 1235.)
“Second, we compare the challenged punishment with punishments prescribed for more
serious crimes in our jurisdiction. [Citation.] Third, and finally, we compare the
challenged punishment to punishments for the same offense in other jurisdictions.
[Citation.] The importance of each of these prongs depends upon the facts of each
specific case[,] [and] . . . we may base our decision on the first prong alone.” (Johnson, at
pp. 296-297.)
As the Baker court discussed in more detail, our Supreme Court has found
unconstitutional a life sentence for a second offense of indecent exposure (In re Lynch
(1972) 8 Cal.3d 410, 413), a single incident of lewd and lascivious touching of a child’s
private parts in violation of section 288 (In re Rodriguez (1975) 14 Cal.3d 639, 654-656),
and felony murder by a 17-year-old defendant (People v. Dillon (1983) 34 Cal.3d 441,
development in the trial court. (See In re Sheena K. (2007) 40 Cal.4th 875, 887- 889; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
20
482, 489). (Baker, supra, 20 Cal.App.5th at p. 724.) As in Rodriguez, Delp argues the
statutory sentencing scheme is unconstitutional as applied to his case, not that the
sentencing scheme is unconstitutional on its face in all applications. (Rodriguez, at
p. 654; see also Baker, at p. 724.)
Delp argues the nature of the offenses does not warrant the two consecutive 15-
year-to-life sentences the court imposed. He focuses on comparing his conduct to the
other sexual offenses that may subject an offender to a sentence of 15 years to life under
the One Strike law. Unlike his offense, nearly all of those offenses involve the use of
force to commit a nonconsensual sexual act. (§ 667.61, subd. (c).) Those other predicate
offenses are:
• Rape accomplished by force, fear, or threat of retaliation (§ 261, subds. (a)(2) & (6); 262, subds. (a)(1) & (4)); • Rape or sexual penetration accomplished by force and in concert with another person (§ 264.1); • Committing a lewd or lascivious act on a child under the age of 14 years through use of force or fear (§ 288, subd. (b)); • Sexual penetration accomplished by force or fear (§ 289, subd. (a)); and • Sodomy or oral copulation accomplished by force, fear, or threat of retaliation 3 (§§ 286, subds. (c)(2), (c)(3), & (d)); 287, subds. (c)(2), (c)(3), & (d)).
3 Sodomy and oral copulation are predicate offenses when accomplished without force if committed by people acting in concert if the victim is incapable of consent because of a mental disorder or developmental or physical disability. (§§ 286, subd. (d); 287, subd. (d).)
21
There are two predicate offenses which don’t require force or fear—continuous sexual
abuse of a child in violation of section 288.5 and committing lewd and lascivious acts
against a child under the age of 14 years in violation of section 288, subdivision (a).
(§ 667.61, subd. (c).) As all these provisions make clear, the major—though not sole—
focus of the provision is to impose greater punishment on sexual offenses accomplished
through violence or the threat of violence.
However, it takes even more to trigger a sentence of 15 years to life. The offender
must also be found to have committed one of the predicate offenses in a manner
designated a special circumstance under section 667.61, subdivision (e).4 Most of those
enumerated special circumstances involve an increase in the risk of harm, mainly to the
victim but also in some cases to standers-by. The heightened sentencing comes into play
when a defendant commits the offense during a kidnapping or burglary, by using a deadly
weapon, by binding the victim or another person, or by administering a controlled
substance. Other special circumstances apply only to the predicate offenses of sodomy or
oral copulation by force, fear, or threat, or rape or penetration by force committed in
concert with another person. (§ 667.61, subd. (e)(7).) In addition, and as relevant here,
application of a 15-year-to-life sentence may also be triggered by committing one of the
predicate offenses against “more than one victim.” (Pen. Code, § 667.61, subd. (e)(4).)
4 The special circumstances identified in section 667.61, subdivision (d) require a sentence of 25 years to life and aren’t relevant here.
22
Delp argues his conduct falls at the low end of the low end of conduct to which
15-year-to-life sentences apply. His predicate offense, lewd conduct against a child 14
years old or younger, did not involve violence or its threat. Nor was he convicted of
committing the offense in a manner that increased the risk of harm to his victims or
anyone else. Instead, he was convicted of committing a nonviolent act on three occasions
against two children between the ages of 5 and 9 years old. He argues the predicate
offense itself was minor, involving touching of the outside of the children’s vaginas
without penetration. He says these facts show an imbalance between the nature of the
offenses and his punishment. He says what he did is categorically different than the main
body of offenses punished by the One Strike law. He also argues his conduct was not
especially egregious because he simply “touch[ed] two sisters in close physical and
temporal proximity, [which] may only indicate an aberrant behavior that does not suggest
a danger that there will be future victims if the law does not intervene.” 5 Delp also argues more serious sexual offenses are not subject to life sentences. He
claims someone convicted of raping two children when they can’t resist because they’re
asleep or intoxicated may be sentenced to no more than a 16-year determinate term.
(§§ 261, subd. (a)(3) & (4); 264, subd. (a).) He says the punishment is the same for rape
or sodomy when the children are incapable of resisting, but the offense doesn’t involve
overt force or threat. (§§ 262, subd. (a)(2) & (3); 286, subds. (f) & (g).) Meanwhile,
5Delp doesn’t argue other states punish offenses like his less severely than California has punished him, so we don’t address the law of other jurisdictions.
23
sexual penetration or sodomy with a child under 14 years and more than 10 years
younger than the perpetrator is punishable by no more than eight years. (§§ 286, subd.
(c)(1); 289, subd. (j).) Delp argues the One Strike law does not apply to any of these
crimes, and a person convicted of them is not subject to a life sentence, even if they
committed the offenses on multiple occasions and against multiple victims.
We disagree with Delp’s choice of comparison crimes. In the first place, “[t]he
penalties for single offenses . . . cannot properly be compared to those for multiple
offenses.” (People v. Crooks (1997) 55 Cal.App.4th 797, 807.) The fact that Delp
committed these offenses against two different children over a period of weeks or
months, makes his conduct more serious than he allows. (People v. Christensen (2014)
229 Cal.App.4th 781, 789, 808 [upholding sentence of 27 years to life imposed for
conviction of lewd acts committed against three children].)
Second, the statute setting out punishment for rape offenses explicitly allows for
prosecution under section 288.7. (§ 264, subd. (c)(3).) That provision, added to the Penal
Code by the Sex Offender Punishment, Control, and Containment Act of 2006, mandates
a sentence of 25 years to life for anyone who engages in a single act of sexual intercourse
or sodomy—by force or otherwise—with a child 10 years or younger. (§ 288.7,
subd. (a).) Subdivision (b) of the same provision mandates a sentence of 15 years to life
for anyone who engages in a single act of oral copulation or penetration—by force or
otherwise—with a child 10 years or younger. (§ 288.7, subd. (b); see also Baker, supra,
20 Cal.App.5th at p. 722.) While Delp’s conduct doesn’t fall under this statute, it’s
24
notable that someone who did what he did but took the additional step of penetrating the
children could have been sentenced to three consecutive terms totaling 45 years to life in
prison. (See People v. Vital (2019) 40 Cal.App.5th 925, 929-930 [trial court imposed two
consecutive and three concurrent 15-year-to-life sentences for conviction on five counts
of violating section 288.7, subd. (b)].)
As a consequence, we don’t agree with Delp that his punishment is out of step
with the nature of his offense or the way California punishes more serious offenses. The
Legislature decided sex offenses against very young children should be treated especially
severely, and it was within their power and discretion to treat offenses against the most
vulnerable children as being just as serious as sex offenses committed against adults and
teenagers by means of force or threat of force. After all, children so young have almost
no means of protecting themselves, and likely don’t have the knowledge or psychological
resources to realize what’s happening to them. Though it’s true “lewd conduct on a child
may not be the most grave of all offenses, . . . its seriousness is considerable . . . [and]
may have lifelong consequences to the well-being of the child.” (People v. Christensen,
supra, 229 Cal.App.4th at p. 806; see also Ashcroft v. Free Speech Coalition (2002) 535
U.S. 234, 244 [“sexual abuse of a child is a most serious crime and an act repugnant to
the moral instincts of a decent people”].)
A defendant seeking to overturn a sentence as cruel or unusual faces a
considerable burden. “The doctrine of separation of powers is firmly entrenched in the
law of California, and a court should not lightly encroach on matters which are uniquely
25
in the domain of the Legislature. Perhaps foremost among these are the definition of
crime and the determination of punishment.” (People v. Wingo (1975) 14 Cal.3d 169,
174.) A court should declare the length of a sentence mandated by the Legislature is
excessive only in the rarest of cases. (Baker, supra, 20 Cal.App.5th at p. 724.) This is not
such a case.
IV
ABILITY TO PAY FEES, ASSESSMENTS, AND FINES
Delp argues the court erred by imposing booking fees, conviction and court
operation assessments, and a restitution fine when he claims he doesn’t have the ability to
pay them. Each challenge presents slightly different legal and factual issues, so we
address them separately.
A. Background Facts
The probation report recommended that the trial court impose several fees,
assessments, and fines. The report recommended (i) a $514.58 booking fee under
Government Code section 29550.2, subdivision (a), (ii) $90 in conviction assessments
under Government Code section 70373, (iii) $120 in court operations assessments under
Government Code section 1465.8, subdivision (a)(1), and (iv) a $10,000 restitution fine
under Penal Code section 1202.4, subdivision (b), and (v) the costs of a presentence
probation report in an amount to be determined by the probation office but no greater
than $1,095 under Penal Code section 1203.1b.
26
In a sentencing memorandum filed in the trial court, Delp objected generally to the
imposition of fines and fees on the ground that he wouldn’t be able to pay them. “The
People have requested a sentence of thirty years to life. . . . As defendant is seventy years
old, any term of imprisonment will likely result in him living the rest of his years in
prison. . . . [D]efendant would ask this Court to find an inability to pay fines and fees as
noted in the sentencing recommendation as defendant has been in custody for almost two
years and has no means of paying them.”
Delp’s objection was not specific as to which fees and fines he targeted. However,
the statutes allowing several of these fees, assessments, and fines explicitly allow trial
courts to consider a defendant’s ability to pay. The booking fees statute calls on the court
to impose such fees, “[i]f the person has the ability to pay.” (Gov. Code, § 29550.2, subd.
(a).) The statute providing for restitution allows a fine between $300 and $10,000 and
allows the trial courts to consider ability to pay among other factors in deciding whether
to impose a fine over the $300 minimum amount. (Pen. Code, § 1202.4, subd. (b)(1).)
The statute allowing the court to charge convicted persons for the costs of probation
reports goes further. It not only allows the trial court to consider a defendant’s ability to
pay, but affirmatively requires it to “make a determination of the ability of the defendant
to pay all or a portion” of the costs before imposing them. (Pen. Code, § 1203.1b, subd.
(a).)
At Delp’s sentencing, the trial court acknowledged Delp’s objection and his
potential difficulty paying. The court noted defense counsel had “indicated in his
27
briefing—and this is consistent with [appellant] being . . . in custody for two years—
apparently there’s not a lot of money in the piggy bank right now for him.” The court
noted that under the statutes it could consider Delp’s ability to pay in deciding whether to
impose “the cost of a presentence probation report and some other fines and fees, . . .
recognize[d] the inherent difficulty with regard to paying all fees . . . [and] fines,” and
said “to the extent that [I] can exercise [my] discretion, [I] will do so.” The court then
decided, “[i]n regard to the presentence probation report, the Court would exercise its
discretion and—and impose no monetary obligation.”
However, the court was under the impression that booking fees, conviction
assessments, and court operations assessments, were mandatory under the statutes and
imposed them without regard to Delp’s ability to pay. The court commented “[t]here are
a number of fines and fees that the Court must impose with no discretion allowed. [¶]
Booking fees of $514.58 . . . would be imposed.” The court also indicated that “by law” it
had to impose conviction assessment fees of $90 ($30 per conviction) and court
operations assessments of $120 ($40 per conviction).
As for the restitution fine, the trial court understood it had discretion whether to
impose more than the minimum amount. The statute mandates that the court impose a
restitution fine of at least $300 for a felony conviction, but allows up to $10,000, and
permits the trial court to take into account Delp’s ability to pay only in deciding how
28
6 much to impose above the $300 mandatory minimum. (§ 1202.4, subd. (b)(1).) The
probation report recommended the court impose the maximum $10,000 restitution fine.
However the court noted “the ability to pay . . . [is] a factor for me to consider with
regard to the victim restitution” and in the end decided to reduce the recommended
restitution fine from $10,000 to $1,000.
B. Restitution Fine
Delp argues Dueñas, which was decided in January 2019 after his sentencing,
concluded defendants have a due process right under the federal and state constitutions to
a hearing on their ability to pay various fines and fees, including restitution fines.
(Dueñas, supra, 30 Cal.App.5th at p. 1164.) Specifically, Dueñas held “to avoid serious
constitutional questions” raised by the statutory restitution scheme, the court must stay
execution of the mandatory minimum restitution fine under section 1202.4 unless it
determines the defendant has the ability to pay. (Id. at p. 1172.) The People argue Delp
has forfeited his challenge to the restitution fine by failing to raise his objection in the
trial court.
We disagree that the trial court’s decision to impose a restitution fine implicates
Dueñas. We also disagree that Delp has forfeited his challenge. As we recounted above,
Delp did object that he couldn’t pay the fees and fines the probation report recommended,
6The statute allows trial courts to forego a restitution fine entirely for “compelling and extraordinary reasons,” but that exception does not apply here since “[a] defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b).” (§ 1202.4, subd. (c).)
29
which included, most significantly, the recommendation to impose a restitution fine in the
amount of $10,000. The trial court acknowledged Delp’s objection specifically as it
related to the restitution fine. It then decided to reduce the recommended restitution fine
from $10,000 to $1,000.
Section 1202.4 sets out how to calculate the amount of a restitution fine.
Subdivision (b)(1) places the determination of the fine amount within the discretion of
the trial court, within the $300 minimum and $10,000 maximum. (§ 1202.4, subd (b)(1).)
Subdivision (b)(2) recommends that the court set the fine amount “as the product of the
minimum fine pursuant to paragraph (1) multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.” (§ 1202.4, subd. (b)(2).) Subdivision (d)
then directs the court to “consider any relevant factors, including, but not limited to, the
defendant’s inability to pay, the seriousness and gravity of the offense and the
circumstances of its commission, any economic gain derived by the defendant as a result
of the crime, the extent to which any other person suffered losses as a result of the crime,
and the number of victims involved in the crime.” The provision specifies the victims’
losses may include “intangible losses, such as psychological harm caused by the crime”
and also that “[c]onsideration of a defendant’s inability to pay may include his or her
future earning capacity.” (§ 1202.4, subd. (d).)
Nearly every one of these factors favors imposing a high restitution fine.
According to the probation report, under the statutory formula, Delp would have faced a
30
fine of $24,300 due to its seriousness as reflected in the length of the sentence. The
probation report recommended $10,000 only because that’s the statutory maximum. He
committed the offense against multiple victims who suffered psychological damage, and,
as the probation report notes, Delp displayed sophistication and abused a position of trust
in committing the offenses. The only statutory factors that favored reducing Delp’s fine
below $10,000 were the fact that he didn’t derive an economic gain from his crimes and
that his health condition limited his future earning capacity. (§ 1202.4, subd. (d).)
The court was not required to hold a separate hearing or make express findings as
to the factors bearing on the amount of restitution it imposed. (§ 1202.4, subd. (d).)
However, we know Delp did raise the issue and the court did hold a hearing at which it
considered Delp’s financial condition and decided to impose $1,000 instead of $10,000.
Delp had the burden of demonstrating his inability to pay the recommended restitution
fine at that hearing. (Ibid.; People v. Romero (1996) 43 Cal.App.4th 440, 449 [“The
statute thus impliedly presumes a defendant has the ability to pay and expressly places
the burden on a defendant to prove lack of ability”].) His basis for reducing the fine and
assessments was that he wouldn’t be able to pay due to his age and the length of his
sentence.
It’s also important that the trial court was required to hold a hearing on and make a
finding regarding Delp’s ability to pay all or a portion of the costs of the presentence
probation report. (§ 1203.1b, subd. (a), italics added.) That statute specifies “in making a
determination of whether a defendant has the ability to pay, the court shall take into
31
account the amount of any fine imposed upon the defendant and any amount the
defendant has been ordered to pay in restitution.” (§ 1203.1b, subd. (b)(3), italics added.)
After the hearing, at which the trial court considered both restitution and the probation
report costs, as well as other assessments, the court reduced the recommended restitution
amount from $10,000 to $1,000 and refused to impose any costs for the probation report.
We conclude the trial court found Delp could afford to pay a $1,000 restitution fine but
could not afford to pay any portion of the probation report costs in addition to that
amount. It follows that the trial court’s process did not violate the principles enunciated
in Dueñas.
To the extent Delp questions the rationality of the court’s determination, the
probation report provided a more than adequate basis for imposing the $1,000 restitution
fine. Delp had worked for years as finance manager at an automobile dealership. His
annual salary when he was arrested in December 2016 was $175,000 to $180,000, and he 7 also received $2,833.33 each month in Social Security benefits. He reported a total
monthly income of $17,416.66, total monthly expenses of $3,870, and a monthly net
income of $13,546.66. Moreover, he had no family relying on him for support. Delp is
divorced and the father of two adult children, both in their 40s. The divorce occurred in
2004, and he owes no support to his former spouse or his children. His own parents are
deceased. Relevant to his ability to work while in prison, Delp said he was in good
mental health but poor physical health. He reported chronic pain from ruptured discs in
7Social Security monthly benefits paid to a beneficiary are suspended when they are imprisoned for a criminal offense. (42 U.S.C. § 402, subd. (x).)
32
his spine and said he suffered a heart attack in February 2017, which required surgery for
a heart stent to correct arterial blockage. Though these last circumstances may limit his
ability to earn wages while in prison, his financial resources before his conviction provide
a reasonable basis for imposing the reduced fine.
We therefore affirm the order imposing $1,000 as a restitution fine.
C. Booking Fees
Government Code section 29550.2, subdivision (a) requires the court to impose
booking fees on a convicted defendant, provided the defendant has the ability to pay. The
code says, “Any person booked into a county jail pursuant to any arrest . . . is subject to a
criminal justice administration fee for administration costs incurred in conjunction with
the arresting and booking if the person is convicted of any criminal offense relating to the
arrest and booking.” However, it also says, “If the person has the ability to pay, a
judgment of conviction shall contain an order for payment of the amount of the criminal
justice administration fee by the convicted person.” (Gov. Code, § 29550.2, subd. (a),
italics added.) This provision makes clear imposing the booking fee was not mandatory if
Delp was unable to pay.
The trial court did not recognize its own discretion, but instead imposed the
booking fees as if they were mandatory and without considering Delp’s ability to pay
them. The court commented “[t]here are a number of fines and fees that the Court must
impose with no discretion allowed. [¶] Booking fees of $514.58 . . . would be imposed.”
33
The People concede the error but argue Delp forfeited his challenge by failing to
object when the trial court imposed the fees as mandatory. They argue, “appellant argued
that he did not have the ability to pay the fines and fees recommended by probation
because appellant had been in custody for two years awaiting trial. [Citation.] However,
appellant never objected when the court stated it had no discretion but to impose the
booking fee. [Citation.] Therefore, appellant has forfeited his claim that the trial court
was mistaken about its discretion to impose the booking fee.”
Respectfully, this parses things too finely. The statute’s plain language mandates
booking fees if a defendant has the ability to pay. The probation report recommended that
the court impose $514.58 in booking fees. Delp objected to the recommendation on the
basis that he can’t afford to pay them. And the trial court denied relief under the mistaken
belief that it was required to impose the fees, irrespective of his ability to pay. Delp did
enough to bring this issue to the trial court’s attention and preserve the issue for appeal.
Delp asks us to strike the booking fee on the basis that the trial court found as a
factual matter that Delp did not have the ability to pay. He locates this finding in the
court’s comment, in view of his life sentence, that “I recognize the inherent difficulty
with regard to paying all fees. To the extent that—and fines—to the extent that the Court
can exercise its discretion, it will do so in that regard.” We don’t think it’s so clear the
court made a finding on this issue. While it’s true the trial court found Delp could pay a
$1,000 restitution fine but no portion of the costs of the probation report, the court made
that determination at the same time it ordered Delp to pay the $514.58 in booking fees
34
and the $210 in assessments. It was within the court’s discretion to consider those other
obligations when it determined Delp could afford no more.
Thus, we agree with the People that “it is not clear from the trial court’s actions
that it would have struck the booking fee if it was aware of its discretion with respect to
that fee.” We also agree that the best remedy is to reverse the booking fee and “remand[]
to the trial court so that it can knowingly exercise its discretion to either impose or strike
the booking fee.”
We note that the Legislature has repealed Government Code section 29550.2
effective July 1, 2021 and directed that “the unpaid balance of any court-imposed costs
pursuant to Section . . . 29550.2 . . . is unenforceable and uncollectible and any portion of
a judgment imposing those costs shall be vacated.” (Assem. Bill No. 1869 (2019-2020
Reg. Sess.) § 6111.) We express no opinion on how that legislative change should affect
the trial court’s decision on remand.
D. Conviction Assessment and Court Operations Assessment
That leaves us with the question whether the trial court violated Delp’s due
process and equal protection rights by imposing $210 in conviction and court operation
assessments without first determining whether he has the ability to pay them.
The statutes mandating these assessments apply to all persons convicted of an
offense and don’t require the courts to consider the convicted person’s ability to pay.
(Gov. Code, §§ 70373 & 1465.8.) Government Code section 70373 says, “To ensure and
maintain adequate funding for court facilities, an assessment shall be imposed on every
35
conviction for a criminal offense . . . in the amount of thirty dollars ($30) for each
misdemeanor or felony.” Government Code section 1465.8 says “To assist in funding
court operations, an assessment of forty dollars ($40) shall be imposed on every
conviction for a criminal offense.” So, the assessments are mandatory and neither
provision makes an exception based on a defendant’s indigence. Delp argues Dueñas
establishes he had a due process right under the federal and state constitutions to a
hearing on his ability to pay the assessments. (See Dueñas, supra, 30 Cal.App.5th at
p. 1164.)
The Dueñas court explained that such assessments, which were designed as
nonpunitive fundraising measures, become punitive for people convicted of criminal
offenses who are unable to pay for the simple reason that they impose hardships not
experienced by convicts of means. For indigent convicts, imposing these assessments
creates unpayable indebtedness, threatens access to credit, interferes with the
responsibility to make childcare support payments, damages employment prospects, and
in general impairs the ability to participate in civil society after serving their sentences.
(Dueñas, supra, 30 Cal.App.5th at pp. 1164-1168.) The Dueñas court held that imposing
assessments that are the same in amount for all defendants, but which have punitive
consequences for the indigent alone violates due process and equal protection. (Id. at
p. 1168.) The court therefore concluded a trial court must find a criminal convict has the
present ability to pay before ordering them to pay such assessments. (Ibid.) Because the
trial court already had found Dueñas indigent, the Court of Appeal reversed the
36
assessments outright. (Id. at pp. 1168-1169, 1172-1173.) The Dueñas court also held that
an order imposing the minimum restitution fine must be stayed until the court determines
a defendant has the ability to pay.
Some courts have criticized the Dueñas analysis. Some have held due process and
equal protection never require an ability to pay finding before imposing generally
applicable assessments or restitution fines. (People v. Hicks (2019) 40 Cal.App.5th 320,
329, review granted Nov. 26, 2019, S258946; People v. Caceres (2019) 39 Cal.App.5th
917, 928; People v. Petri (2020) 45 Cal.App.5th 82, 91-92; People v. Kingston (2019) 41
Cal.App.5th 272, 279.) Some courts have held assessments imposed on criminal
defendants based on their convictions are, like restitution fines, punitive, and that both
must be evaluated under the excessive fines clause, not the due process clause or the