Filed 8/15/19
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

THE PEOPLE,                                       H045518
                                                 (Santa Clara County
        Plaintiff and Respondent,                 Super. Ct. No. C1758098)

        v.

JOHN ALVES SANTOS,

        Defendant and Appellant.


        Defendant John Alves Santos was arrested in connection with a stolen vehicle
report. He pleaded no contest to vehicle theft with a prior conviction, possession of
methamphetamine, possession of burglary tools, and buying or receiving a stolen motor
vehicle with a prior conviction, and admitted one prison prior. The trial court sentenced
Santos to two years in state prison and imposed specified fees and fines.
        Santos’s appointed counsel filed an opening brief in which no issues are raised and
asked this court to independently review the record under People v. Wende (1979) 25
Cal.3d 436. We sent a letter to Santos notifying him of his right to submit written
argument on his own behalf on appeal but received no response.1 After independent
review of the record, we requested supplemental letter briefs from Santos’s counsel and
the Attorney General in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
In Dueñas, Division 7 of the Second Appellate District applied due process principles to

        1
          Our records show that our letter advising Santos of his right to submit argument
was returned as undeliverable. We have confirmed with Santos’s counsel that the address
on file for Santos matches the address in his counsel’s file. His counsel has declared that
she notified Santos of her intention to request independent review under Wende and of his
right to file written argument on his own behalf.
prohibit the imposition of certain fees and a restitution fine upon an indigent defendant
without first ascertaining the defendant’s ability to pay the amount imposed. We asked
counsel in this case (1) whether the trial court erred in imposing any fines or fees without
determining Santos’s ability to pay, (2) whether Santos forfeited any claim of error by
failing to object, or waived his right to contest the fines as part of his plea agreement, and
(3) if the matter is not forfeited, what is the appropriate remedy on appeal.
       We hold that the failure to object to the assessments discussed below did not
forfeit the claim of error on appeal. We also conclude that while the record in this case
does not reflect such extreme circumstances as were present in Dueñas, in which the
defendant’s poverty precipitated a cycle of repeat, misdemeanor offenses which “in
turn, . . . occasioned new fines, fees, and assessments that she” could not pay (Dueñas,
supra, 30 Cal.App.5th at p. 1164), the principles articulated therein still apply.2 Given
the divergence of opinions issued by the Courts of Appeal since Dueñas, we believe that
some guidance to the trial court is appropriate and try to provide it here. We will order a
limited remand for the trial court to ascertain Santos’s ability to pay the court operations
assessment under Penal Code section 1465.8 and the criminal conviction assessment
under Government Code section 70373.




       2
         Our dissenting colleague believes that Dueñas was wrongly decided. We
recognize the broad ramifications of the Dueñas decision. We share our colleague’s
concern about any improvident or unwarranted extension of constitutional principles.
Yet because we believe that Dueñas realistically and correctly assessed the
disproportionate burden that the accumulation of fines has on the very poor—at times
transforming what might be merely “associated collateral consequences” (dis. opn., p. 6)
for those who can pay into a form of additional punishment for those who cannot pay—
we apply its holding here.

                                              2
              I.     FACTUAL AND PROCEDURAL BACKGROUND
       San Jose police officers apprehended Santos on February 28, 2017, in connection
with a stolen vehicle report.3 The victim reported that at approximately 1:00 p.m. he saw
a male (later identified as Santos) driving the victim’s previously stolen vehicle near a
gas station on Alum Rock Avenue in San Jose. The victim unsuccessfully tried to follow
the vehicle. Later that afternoon, the victim contacted the police and said that he had
located his vehicle at the gas station and would wait for the police to arrive. Shortly
after, he called the police again to say that the same individual he had seen driving his
vehicle had returned. Santos was walking away from the stolen vehicle as the police
arrived. The victim identified Santos in an in-field identification.
       During a pat down search, police found a baggie of methamphetamine and a set of
keys. Santos said that the keys were his, though he could not explain one key, which
looked like an ignition key to a foreign car and appeared to have been tampered with.
Officers tried the key in the ignition of the victim’s car, and the car started. Santos also
was carrying a backpack in which the police found a set of fuses—one of which matched
a yellow fuse connected to wiring that was hanging from under the victim’s steering
wheel, and numerous screwdrivers, wire cutters, vise grips, and keys.
       The Santa Clara County District Attorney charged Santos in an information filed
on May 18, 2017, after a preliminary examination, with vehicle theft with a prior
conviction, a felony (Veh. Code, § 10851, subd. (a), Pen. Code, § 666.5; count 1),
misdemeanor possession of a controlled substance, methamphetamine (Health & Saf.
Code, § 11377, subd. (a); count 2), misdemeanor possession of burglary tools (Pen. Code,
§ 466; count 3), and buying or receiving a stolen motor vehicle with a prior conviction



       3
        The facts summarized here are taken from the probation report filed on
January 26, 2018 and from the preliminary hearing testimony of May 10, 2017.

                                              3
(Pen. Code, §§ 496d, 666.5; count 4). The information also alleged one prison prior
within the meaning of Penal Code section 667.5, subdivision (b).
          Santos pleaded no contest to all four counts and admitted the prison prior. He
initialed and signed the advisement of rights, waiver, and plea form, which provided for a
nonbinding, tentative indicated sentence in the range of probation to a maximum of three
years in prison. The signed agreement reflects a handwritten modification to the standard
language concerning the imposition of fines and fees. Paragraph 18, which Santos
initialed, states the defendant’s understanding of the fines, fees, and costs that may be
imposed, including certain mandatory fines and fees, and others depending upon the
ability to pay. The standard plea form language concludes with the statement “and I do
not contest my ability to pay these fines and fees,” but here that sentence was partially
stricken and rewritten as, “and I have discussed these fines and fees with my attorney.”
(Italics added.)
          On January 26, 2018, the trial court sentenced Santos consistent with the plea
agreement. The court denied probation as to all counts. It imposed the mitigated
two-year prison term on count 1 and a concurrent two-year term on count 4, which it
stayed pursuant to Penal Code section 654. The court imposed a 90-day jail sentence for
counts 2 and 3, concurrent to count 1, and struck the enhancement for the prison prior.
Santos received 452 days of credit, comprising 226 actual days and 226 days of conduct
credit.
          At sentencing, Santos’s counsel asked the trial court to “run any fines and fees
concurrent to the time it’s going to impose” because Santos “is indigent” and probation
had recommended “quite a large fine” of $1,800 in restitution. The trial court instead
imposed a restitution fine of $300, plus an additional, suspended parole revocation fine of
$300 (Pen. Code, §§ 1202.4, subd. (b)(2), 1202.45). The court further imposed a $4
emergency medical air transportation fine (Gov. Code, § 76000.10), an $80 court
operations assessment (Pen. Code, § 1465.8), a $60 criminal conviction assessment (Gov.
                                                4
Code, § 70373), and a $129.75 criminal justice administration fee (Gov. Code, §§ 29550,
29550.1, 29550.2). The court waived fees in connection with counts 2 and 3.
       Santos did not object to the imposition of the fines and fees.
       On January 29, 2018, Santos filed a timely notice of appeal from the judgment.
                                    II.    DISCUSSION
       In supplemental briefing, both parties assert that under the reasoning articulated in
Dueñas, supra, 30 Cal.App.5th 1157, the trial court should not have imposed the $80
court operations assessment and $60 criminal conviction assessment without first
determining Santos’ ability to pay, since the record reflects that he was indigent at the
time of sentencing. They further agree that the matter is not forfeited for failure to object
and should be remanded for the limited purpose of determining ability to pay.
       While Santos’s briefing addresses only the court operations and criminal
conviction assessments under Penal Code section 1465.8 and Government Code
section 70373, the Attorney General also tackles the $300 restitution fine. The Attorney
General argues that the restitution fine is distinguishable because it is a fine for
punishment, and the proper analytic framework for evaluating it is not due process as
expressed in Dueñas, but the excessive fines clause of the Eighth Amendment of the
United States Constitution. We need not reach that issue, however, because Santos does
not raise the restitution fine in his supplemental briefing.4 We limit our analysis to the

       4
         We note for completeness that at least two recent opinions have addressed
whether the excessive fines clause provides a more proper basis to evaluate the
constitutionality of the fine or fee imposed. (See People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1034 (conc. opn. of Benke, J.) [disagreeing with Dueñas’s general
application of due process and equal protection principles to the statutory assessment of
fines and fees, which instead should be analyzed under the excessive fines clauses of the
Eighth Amendment of the federal Constitution and of article I, section 17 of the
California Constitution]; People v. Kopp (2019) __ Cal.App.5th __ [2019 Cal.App. Lexis
698] at *77-*78 [holding there is no due process requirement for an ability-to-pay
hearing before imposing a punitive fine, thus the restitution fine must be challenged under
(continued)
                                               5
question of whether the trial court was required, under the reasoning of Dueñas and in
light of the record of indigence present here, to determine Santos’s ability to pay the court
operations and criminal conviction assessments before imposing them.
       A.     Dueñas
       The Court of Appeal in Dueñas examined how the “cascading consequences of
imposing fines and assessments that a defendant cannot pay” (Dueñas, supra, 30
Cal.App.5th at p. 1163) can interfere with an indigent defendant’s fair treatment under
the law by in effect punishing the defendant for being poor (id. at pp. 1166-1167).
       The case involved a homeless probationer whose inability to pay the juvenile
citations she received as a teenager resulted in the suspension of her driver’s license,
which later led to several misdemeanor convictions for driving with a suspended license.
(Dueñas, supra, 30 Cal.App.5th at p. 1161.) Facing the “ostensible choice of paying a
fine or serving jail time in lieu of payment,” Dueñas served time yet remained liable for
mounting court fees, which she could not pay. (Ibid.) Upon her fourth misdemeanor
conviction, the trial court placed Dueñas on probation and, as mandated by statute,
imposed a court operations assessment (Pen. Code, § 1465.8), a criminal conviction
assessment (Gov. Code, § 70373), and a $150 restitution fine (Pen. Code, § 1202.4).
(Dueñas, supra, at p. 1162.) The trial court rejected Dueñas’s constitutional argument
that due process required the court to assess her present ability to pay before it imposed
the fees. (Id. at p. 1163.)
       The Court of Appeal reversed. It held that imposition of the court operations and
criminal conviction assessments without first ascertaining an indigent defendant’s present
ability to pay violates state and federal due process guarantees. (Dueñas, supra, 30
Cal.App.5th at p. 1168.) The court also directed the trial court to stay execution of the


the excessive fines clauses of both the federal and state Constitutions]; id. at *81-*82
(conc. opn. of Benke, J.).)

                                              6
mandatory restitution fine unless and until the People establish the defendant’s ability to
pay. (Id. at p. 1172.)
       The Court of Appeal observed that the assessments at issue were enacted to raise
funds for the state courts and were not intended to be punitive. (Dueñas, supra, 30
Cal.App.5th at p. 1165.) Yet the consequences of mounting criminal justice debts from
unpayable fines “in effect transform a funding mechanism for the courts into additional
punishment for a criminal conviction for those unable to pay.” (Id. at p. 1168.)
Relying on constitutional principles of fair and equal treatment before the law for
indigent defendants, as articulated in decisions like 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, the court
deemed such assessments “fundamentally unfair” if imposed without a determination that
the defendant has the present ability to pay. (Dueñas, supra, at p. 1168.)
       As for the restitution fine, the Court of Appeal recognized that unlike court
operations and criminal conviction assessments, a restitution fine is intended as additional
punishment for a crime. (Dueñas, supra, 30 Cal.App.5th at p. 1169.) It is imposed in a
range determined by statute and commensurate with the seriousness of the offense (Pen.
Code, § 1202.4, subd. (b)). (Dueñas, supra, at p. 1169.) The statute expressly
disqualifies inability to pay as a basis for waiving the restitution fine, though a court may
consider a defendant’s ability to pay if imposing a restitution fine above the statutory
minimum amount. (Id. at p. 1170, citing Pen. Code, § 1202.4, subds. (c), (d).)
       Finding these provisions at odds with statutory policy requiring restitution to “be
consistent with a person’s ability to pay” (Pen. Code, § 1203.2, subd. (a)) and with
common law principles requiring consideration of a defendant’s financial condition when
imposing a punitive award, the court also observed that an indigent defendant is not
afforded equal relief upon completing probation as a defendant who can pay his or her
restitution fine. (Dueñas, supra, 30 Cal.App.5th at pp. 1170-1171, citing Pen. Code,
§ 1203.4, subd. (a)(1).) The court concluded that such “limitation of rights to those who
                                              7
are unable to pay” is fundamentally unfair. (Dueñas, supra, at p. 1171.) To avoid a
constitutional dilemma, the court held that while required by Penal Code section 1202.4
to impose a restitution fine, the trial court must stay execution of the fine “until and
unless the People demonstrate that the defendant has the ability to pay the fine.”
(Dueñas, supra, at p. 1172.)

       B.     Santos Has Not Forfeited His Challenge Concerning Ability to Pay
       Several Courts of Appeal have issued decisions since Dueñas, revealing a split as
to whether a defendant whose sentencing preceded Dueñas forfeits a challenge to the
imposition of fines and fees on the basis of inability to pay by having failed to object in
the trial court. The question as to forfeiture is whether Dueñas represents an unforeseen
significant shift in the pertinent law that trial counsel could not have anticipated, thus
excusing the failure to raise the issue. (See People v. Black (2007) 41 Cal.4th 799, 810
[“although challenges to procedures . . . normally are forfeited unless timely raised in the
trial court, ‘this is not so when the pertinent law later changed so unforeseeably that it is
unreasonable to expect trial counsel to have anticipated the change’ ”].)
       In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), the same
appellate division that decided Dueñas declined to find forfeiture, citing the recognized
exception to the forfeiture rule based upon a “newly announced constitutional principle
that could not reasonably have been anticipated at the time of trial . . . .” (Id. at p. 489.)
Castellano explained that because “no California court prior to Dueñas had held it was
unconstitutional to impose fines, fees or assessments without a determination of the
defendant’s ability to pay,” an objection on that ground would have been futile. (Ibid.)
Since the record contained no evidence regarding the defendant’s ability to pay the
challenged assessments and restitution fine, the court remanded to the trial court for a
limited hearing on the ability to pay. (Id. at pp. 490-491.)




                                               8
       People v. Johnson (2019) 35 Cal.App.5th 134 relied on the same exception to the
forfeiture doctrine based upon a change in the law. Johnson noted that while Dueñas is
founded on longstanding constitutional principles, the statutes at issue “were routinely
applied for so many years without successful challenge [citation], that we are hard
pressed to say its holding was predictable and should have been anticipated.” (Id. at
p. 138.) But in Johnson, unlike in Castellano, the court concluded that any error in the
trial court’s imposition of fines, fees, and assessments without first determining the
defendant’s ability to pay was harmless because evidence in the record (like the
defendant’s past income-earning capacity and ability to earn prison wages over his
lengthy term of incarceration) demonstrated an ability to pay. (Id. at p. 139.)
       Other recent appellate court decisions have declined to apply this exception to the
forfeiture doctrine. In People v. Frandsen (2019) 33 Cal.App.5th 1126, the court
explained that given its application of long-established principles, Dueñas did not
represent an unforeseen, dramatic departure from established law. (Id. at pp. 1153-1155;
accord People v. Bipialaka (2019) 34 Cal.App.5th 455.)
       Santos urges this court to follow Castellano and Johnson. He argues that at the
time of his sentencing, trial counsel had no legal precedent to support an argument based
on inability to pay. Santos requests a limited remand to the superior court for a hearing in
which he can present evidence of his inability to pay the fees. The Attorney General
concedes that a limited remand is appropriate for a determination of Santos’s ability to
pay the court operations and criminal conviction assessments.
       We agree that prior to Dueñas, it was not reasonably foreseeable that a trial court
would entertain an objection to assessments that are prescribed by statute. The standard
is “the ‘state of the law as it would have appeared to competent and knowledgeable
counsel at the time of the trial.’ ” (People v. Black, supra, 41 Cal.4th at p. 811.)
Santos’s sentencing occurred about one year before Dueñas was decided. Neither Penal
Code section 1465.8 nor Government Code section 70373 authorized the trial court to
                                              9
factor a defendant’s ability to pay in imposing the assessments; absent compelling
circumstances like those affecting the defendant in Dueñas, an objection on that basis
would probably have been futile. Dueñas for the first time applied due process principles
to evaluate the punitive impact of the assessments, which in prior cases had been
analyzed strictly as nonpunitive administrative assessments for court funding (see People
v. Alford (2007) 42 Cal.4th 749, 755-759; People v. Castillo (2010) 182 Cal.App.4th
1410, 1412-1415). As the California Supreme Court has recognized, “[t]he circumstance
that some attorneys may have had the foresight to raise th[e] issue does not mean that
competent and knowledgeable counsel reasonably could have been expected to have
anticipated” it. (People v. Black, supra, at p. 812.)
       What is more, unlike cases in which the defendant’s financial status never entered
the trial record, Santos’s trial counsel objected to the probation department’s
recommended restitution fine based on his indigence. The court reduced the fine to the
minimum amount, consistent with its statutory authorization to consider inability to pay
only when increasing the amount of the restitution fine in excess of the minimum.
(Pen. Code, § 1202.4, subds. (c), (d).) Santos’s handwritten modification of paragraph 18
of the plea agreement to remove language stating that he did not contest his ability to pay
those fines, fees, or assessments for which the court may consider ability to pay, further
indicates that Santos did not intend to waive any argument contesting his ability to pay.
       We conclude that Santos’s claim on appeal, based upon inability to pay under the
principles established in Dueñas, is not forfeited by the failure to object on that basis at
sentencing.

       C.     The Record Supports a Limited Remand for an Ability-to-Pay
              Determination
       The parties appear to agree on the merits that in accordance with the principles
announced in Dueñas, the trial court should not have imposed the court operations and
criminal conviction assessments without first determining Santos’s ability to pay, since

                                              10
the record shows that he was indigent at the time of sentencing.5 Both sides propose that
the matter should be remanded for an ability-to-pay determination.
       The record in this case establishes that Santos was indigent at the time of
sentencing. He was represented by the public defender at trial—a fact that while not
determinative, entitles him “to a presumption of indigence for most purposes.” (People v.
Rodriguez (2019) 34 Cal.App.5th 641, 645.) As noted above, Santos’s trial counsel
objected to imposition of a restitution fine in excess of the minimum statutory amount on
the basis of his indigence. And according to the probation record, Santos is homeless and
unable to sustain employment or find housing. He is diagnosed with bipolar disorder and
schizophrenia, which require daily medications, and suffers from a back injury, for which
he receives $800 per month in Social Security benefits.
       On this record, we might infer an inability to pay even the limited amount
remaining at issue, consisting of the $80 court operations assessment (Pen. Code,
§ 1465.8) and $60 criminal conviction assessment (Gov. Code, § 70373). (We do not
consider the $300 restitution fine, for which Santos has not raised a claim in his
supplemental briefing.) But given the range of relevant considerations in determining
whether the defendant is able to pay, we decline to make that determination. We
accordingly remand the matter to the trial court so that Santos may request a hearing and
present evidence demonstrating his contended inability to pay the assessments.
       We offer two additional points as guidance to the trial court and the parties upon
remand. First, we agree with the majority’s observation in a recently-filed opinion by
Division 1 of the Fourth District, that it is the defendant’s burden to demonstrate an

       5
         The Attorney General supports this proposition only as far as it applies to
assessments enacted as funding sources for court programs and imposed on defendants
who cannot pay—a practice the Attorney General describes in supplemental briefing as
“unwise and unfair.” To this end, the Attorney General expresses support for a
legislative solution, as proposed in Dueñas, supra, 30 Cal.App.5th at page 1172.

                                             11
inability to pay, not the prosecution’s burden to show the defendant can pay, as the
Dueñas decision might be read to suggest. (See People v. Kopp, supra, __ Cal.App.5th
___ [2019 Cal.App. Lexis 698 at *76]; cf. Dueñas, supra, 30 Cal.App.5th at p. 1172.)
This is consistent with the Castellano court’s interpretation of Dueñas as requiring a
defendant to “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.” (Castellano, supra, 33 Cal.App.5th at
p. 490.)
       We also agree with the majority in People v. Kopp that in weighing the
defendant’s ability to pay the fee at issue, the trial court may consider, if applicable, the
defendant’s ability to earn wages such as while serving his or her prison sentence.
(People v. Kopp, supra, __ Cal.App.5th ___ [2019 Cal.App. Lexis 698 at *77]; accord
Castellano, supra, 33 Cal.App.5th at p. 490 [factors may include potential prison pay
during the period of incarceration to be served by the defendant].) Although Dueñas
holds that the trial court must evaluate a defendant’s “present ability to pay” the fee
(Dueñas, supra, 30 Cal.App.5th at p. 1164, italics added), that term should not restrict the
trial court’s reasonable consideration of relevant factors. Such factors may include
housing status, mental illness or disability, receipt of government benefits, and realistic
ability to earn prison wages or obtain employment.6




       6
          Castellano, supra, 33 Cal.App.5th at page 490 states that the court “must
consider all relevant factors in determining” the defendant’s ability to pay. It references
pending legislation that proposes factors to be considered in determining a defendant’s
ability to pay, including by way of example present financial circumstances, receipt of
any government benefits, whether represented by court-appointed counsel, and the
defendant’s likelihood of obtaining employment within a six-month period. (Id. at
p. 490, fn. 5, citing Assem. Bill No. 927 (2019-2020 Reg. Sess.) § 1.)

                                              12
                                  III.   DISPOSITION
       The judgment is reversed and the matter is remanded for the limited purpose of
affording Santos the opportunity to request a hearing on his ability to pay assessments
imposed by the trial court. If Santos demonstrates the inability to pay, the trial court must
strike the court operations assessment (Pen. Code, § 1465.8) and the criminal conviction
assessment (Gov. Code, § 70373). If he fails to demonstrate his inability to pay these
amounts, the assessments may remain as imposed.




                                             13
                               Premo, J.




I CONCUR:




             Greenwood, P.J.




People v. Santos
H045518
ELIA, J., Dissenting


       The majority reverses and remands to allow defendant John Alves Santos to
request a hearing as to his ability to pay the court operations assessment (Pen. Code,
§ 1465.8, subd. (a)(1)) and the court facilities assessment (Gov. Code, § 70373) under
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). I believe that Dueñas was
wrongly decided.1 Therefore, I respectfully dissent.
       A.     The Dueñas Decision
       In Dueñas, Division 7 of the Second Appellate District held that due process
requires the trial court (1) to conduct a hearing to ascertain a defendant’s ability to pay
before it imposes a court operations assessment or a court facilities assessment and
(2) to stay execution of any restitution fine (Pen. Code, § 1202.4) unless and until it holds
an ability-to-pay hearing and concludes that the defendant has the ability to pay the
restitution fine. Because defendant challenges only the imposition of the court operations
and court facilities assessments, I confine my discussion to those fees.2

       1
          The Attorney General “does not take issue with the Dueñas opinion insofar as it
holds the imposition of assessments for court operations and court facilities may not be
imposed where a defendant demonstrates the inability to pay . . . .” To the extent that the
Attorney General is conceding that Dueñas was correctly decided as to those
assessments, we are not bound to accept that concession and must not do so if we
conclude that it is based on an erroneous understanding of the law. (Desny v. Wilder
(1956) 46 Cal.2d 715, 729.) For the reasons set forth in this dissent, I would decline to
accept the Attorney General’s apparent concession.
        2
          It is worth noting, however, that Dueñas’s conclusion that the restitution fine
imposed under Penal Code section 1202.4 “punishes indigent defendants in a way that it
does not punish wealthy defendants” apparently is limited to cases in which probation is
granted. (Dueñas, supra, 30 Cal.App.5th at p. 1170.) In that circumstance, payment of
the restitution fine must be made a condition of probation. (Pen. Code, § 1202.4,
subd. (m).) Dueñas reasoned that those who “successfully fulfill[] the conditions of
probation for the entire period of probation [generally have] an absolute statutory right to
have the charges against [them] dismissed. (Pen. Code, § 1203.4, subd. (a)(1).)”
(Dueñas, supra, at p. 1170.) Indigent probationers, who cannot pay the restitution fine
(continued)
       Court facilities assessments (Gov. Code, § 70373) and court operations
assessments (Pen. Code, § 1465.8, subd. (a)(1)) are statutorily required to be imposed on
every criminal conviction (except for parking offenses) without reference to the
defendant’s ability to pay. (Duenas, supra, 30 Cal.App.5th at p. 1164.) The purpose of
each assessment is to generate court funding. (Gov. Code, § 70373, subd. (a)(1)
[“To ensure and maintain adequate funding for court facilities, an assessment shall be
imposed on every conviction for a criminal offense . . .”]; Pen. Code, § 1465.8,
subd. (a)(1) [“To assist in funding court operations, an assessment of forty dollars ($40)
shall be imposed on every conviction for a criminal offense . . .”].) The assessments are
enforceable as civil judgments.
       The Dueñas court noted that “ ‘[c]riminal justice debt and associated collection
practices can damage credit, interfere with a defendant’s commitments, such as child
support obligations, restrict employment opportunities and otherwise impede reentry and
rehabilitation.’ ” (Dueñas, supra, 30 Cal.App.5th at p. 1168.) In view of “[t]hese
additional, potentially devastating consequences suffered only by indigent persons,”
Dueñas concluded that Government Code section 70373 and Penal Code section 1465.8,
subdivision (a)(1) effectively impose “additional punishment for a criminal conviction for
those unable to pay.” (Dueñas, supra, at p. 1168.) Based on that conclusion, the court
reasoned that imposing these assessments without a determination that the defendant has
the ability to pay them is “fundamentally unfair” and “violates due process under both the
United States Constitution and the California Constitution. (U.S. Const. 14th Amend.;
Cal. Const., art. I, § 7.)” (Ibid., fn. omitted.)




and thus cannot fulfill the conditions of their probation, are denied that right solely by
reason of their poverty, Dueñas reasons. (Id. at pp. 1170-1171.)


                                                2
       B.     Dueñas Was Wrongly Decided
       For its view that the imposition of additional punishment on the indigent solely on
the basis of their poverty violates due process, the Dueñas court relied on Griffin v.
Illinois (1956) 351 U.S. 12 and its progeny. At issue in Griffin was an Illinois law
requiring all criminal defendants not sentenced to death to pay for a trial transcript in
order to appeal. A plurality of the United States Supreme Court held the state law
unconstitutional, relying on both the Due Process and Equal Protection Clauses (id. at
p. 18), which the Court explained require “equal justice.” (Id. at p. 19 [“There can be no
equal justice where the kind of trial a man gets depends on the amount of money he has.
Destitute defendants must be afforded as adequate appellate review as defendants who
have money enough to buy transcripts”].) Justice Frankfurter, concurring in the judgment
in Griffin, relied on equal protection principles. (Id., at p. 23 (conc. opn. of
Frankfurter, J.).) The Supreme Court subsequently described Griffin and other cases
invalidating “state-imposed financial barriers to the adjudication of a criminal
defendant’s appeal” as “stand[ing] for the proposition that a State cannot arbitrarily cut
off appeal rights for indigents while leaving open avenues of appeal for more affluent
persons.” (Ross v. Moffitt (1974) 417 U.S. 600, 607.)
       That “principle has not been confined to cases in which imprisonment is at stake.”
(M.L.B. v. S.L.J. (1996) 519 U.S. 102, 111 (M.L.B.).) Mayer v. Chicago (1971) 404 U.S.
189 (Mayer) involved an indigent defendant convicted on non-felony charges and
subjected to a fine, not imprisonment. The Mayer Court rejected the argument
that Griffin was distinguishable because it involved a defendant “sentenced to some term
of confinement,” explaining that Griffin set forth “a flat prohibition against pricing
indigent defendants out of as effective an appeal as would be available to others able to
pay their own way.” (Id. at pp. 196-197.) The Court explained that “[t]he invidiousness
of the discrimination that exists when criminal procedures are made available only to



                                               3
those who can pay is not erased by any differences in the sentences that may be
imposed.” (Id. at p. 197.)
       In M.L.B., the Supreme Court extended Griffin to an appeal from an order
terminating parental rights. The M.L.B. Court characterized Griffin and Mayer as
“decisions concerning access to judicial processes” involving “[t]he equal protection
concern [raised by] . . . fencing out would-be appellants based solely on their inability to
pay core costs” and “[t]he due process concern . . . [of] the essential fairness of the
state-ordered proceedings anterior to adverse state action.” (M.L.B., supra, 519 U.S. at
p. 120.) The Court reaffirmed “the general rule . . . that fee requirements ordinarily are
examined only for rationality,” and noted that “[t]he State’s need for revenue to offset
costs, in the mine run of cases, satisfies the rationality requirement [citation] . . . .”
(Id. at p. 123.) But the Court concluded that its “cases solidly establish two exceptions to
that general rule. The basic right to participate in political processes as voters and
candidates cannot be limited to those who can pay for a license. Nor may access to
judicial processes in cases criminal or ‘quasi criminal in nature, [citation] turn on ability
to pay.” (Id. at p. 124.)
       The foregoing cases establish that principles of due process and equal protection
bar states from conditioning access to the courts on ability to pay, thereby effectively
denying such access to the indigent. Dueñas did not involve fines or fees required to be
paid in order to access judicial processes. Nor does a convicted person’s inability to pay
a court operations assessment or a court facilities assessment in any way impact that
person’s ability to access the courts.
       Dueñas also relied on a line of cases applying Griffin to strike down as
unconstitutional state laws allowing the incarceration of indigent convicted defendants
solely because of their inability to pay a fine. (See Williams v. Illinois (1970) 399 U.S.
235, 244 [relying on Griffin and holding that state scheme permitting indigent defendants
to be incarcerated beyond the statutory maximum term for their offense because of

                                                4
nonpayment of a fine violated the Equal Protection Clause]; Tate v. Short (1971) 401
U.S. 395, 399 [Equal Protection Clause precludes a state from converting a fine imposed
under a fine-only statute into a jail term solely because the defendant is indigent and
cannot immediately pay the fine in full]; Bearden v. Georgia (1983) 461 U.S. 660, 665,
672 [revocation of defendant’s probation for failure to pay a fine or restitution, “absent
evidence and findings that the defendant was somehow responsible for the failure or that
alternative forms of punishment were inadequate,” “would be contrary to the fundamental
fairness required by the Fourteenth Amendment”]; In re Antazo (1970) 3 Cal.3d 100, 104
[holding that the practice of imprisoning indigent convicted defendants for nonpayment
of fines constituted “an invidious discrimination on the basis of wealth in violation of the
equal protection clause of the Fourteenth Amendment”].) Significantly, failure to pay the
court operations and court facilities assessments does not result in jail time, but in a civil
judgment.3 Therefore, unlike the laws at issue in Williams, Tate, Bearden, and Antazo,
the statutes at issue here and in Dueñas deprive no one of their fundamental right to
liberty based on their indigence.
       In sum, “the ‘fundamental fairness’ principles of due process and equal protection
originating in Griffin have been applied [by the United States Supreme Court] when
either incarceration or access to the courts, or both, is at stake.” (Mendoza v. Garrett
(D. Or. 2018) 358 F.Supp.3d 1145, 1171 (Mendoza); see Fowler v. Benson (6th Cir.
2019) 924 F.3d 247, 260-261 [finding Griffin and its progeny inapplicable to
constitutional challenge to state scheme permitting suspension of an indigent person’s

       3
         In Dueñas, the trial court told the defendant that she could “save money and
convert [a] $300 [fine] to 9 days of county jail,” and her counsel said, “ ‘Yes. She
doesn’t have the ability to pay.’ ” (Dueñas, supra, 30 Cal.App.5th at p. 1162.) However,
the fact that Duenas apparently was deprived of her liberty for inability to pay was not the
basis for the court’s decision, nor was it mandated by the challenged statutes. Defendant
in this case does not claim he was incarcerated due to his claimed inability to pay the
assessments.


                                               5
driver’s license for unpaid court debt, reasoning that Griffin applies only where
“fundamental liberty interests” are implicated].) Dueñas did not involve the right to
access the courts, the defendant’s liberty interests, or any other fundamental right.
(See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039, conc. opn. of Benke, J.
[“the imposition of the two assessments and one restitution fine on the defendant
in Dueñas is [not] an issue of access to our courts or justice system, as was the case
in Griffin and similar authorities” and “the fines or fees imposed on the defendant
in Dueñas [did not] satisf[y] the traditional due process definition of a taking of life,
liberty or property”].) The same is true of the case at bar. Accordingly, Dueñas
represents a significant extension of Griffin’s principles.
       In my view, that extension was unwarranted. With respect to the court facilities
and court operations assessments at issue here, Dueñas expressed concern about the
“potentially devastating consequences” associated with nonpayment of an outstanding
debt, including poor credit, inability to pay child support, disruption of employment by
aggressive collection tactics, and financial insecurity. (Dueñas, supra, 30 Cal.App.5th at
p. 1168.) But such collateral consequences are not “punishment,” in the traditional sense
of the word.4 Instead, they are illustrations of the disproportionate burden fines can have
on the poor.
       The United States Supreme Court “has not held that fines must be structured to
reflect each person’s ability to pay in order to avoid disproportionate burdens,” noting
instead that the consideration of “the defendant’s ability to pay” generally is “guided by
sound judicial discretion rather than by constitutional mandate.” (San Antonio


       4
        Our Supreme Court recently noted that “ ‘[a]s a legal term of art, “punishment”
has always meant a “fine, penalty, or confinement inflicted upon a person by the
authority of the law and the judgment and sentence of a court, for some crime or offense
committed by him.” ’ [Citation.]” (People v. Ruiz (2018) 4 Cal.5th 1100, 1107, italics
added.)


                                              6
Independent School Dist. v. Rodriguez (1973) 411 U.S. 1, 22 [applying the Equal
Protection Clause].) And, in M.L.B., the Court indicated that the Griffin through Bearden
line of cases applies only to “[s]anctions . . . [that] are not merely disproportionate in
impact[, but r]ather, . . . are wholly contingent on one’s ability to pay, and thus ‘visi[t]
different consequences on two categories of persons,’ [citation]; they apply to all
indigents and do not reach anyone outside that class.” (M.L.B., supra, 519 U.S. at
pp. 126-127.) The assessments at issue in Dueñas and here, and even the associated
collateral consequences noted by the court in Dueñas, are of the sort that reach the
indigent and non-indigent alike, and have varying impact based on wealth. As such, the
Griffin through Bearden line of cases does not govern.
       Rather, I believe that any due process challenge to the court facilities and court
operations assessments is subject to rational basis review. I express no opinion as to
whether the statutory scheme imposing assessments regardless of ability to pay has a
rational basis, given that issue has not been explored in the briefing in this case or in
Dueñas itself.5




       5
          Dueñas might be read as concluding that the statutes at issue lack a rational
basis; the court stated that “[i]mposing unpayable fines on indigent defendants is not only
unfair, it serves no rational purpose, fails to further the legislative intent, and may be
counterproductive.” (Dueñas, supra, 30 Cal.App.5th at p. 1167.) But that conclusory
statement does not account for the fact that, under rational basis review, “ ‘[a]
classification is not arbitrary or irrational simply because there is an “imperfect fit
between means and ends” ’ [citation], or ‘because it may be “to some extent both
underinclusive and overinclusive” ’ [citations].” (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 887.) I question whether the imposition of fees on all convicted
defendants, regardless of ability to pay (or, relatedly, likelihood of collection), is
irrational or merely overinclusive. (See Mendoza, supra, 358 F.Supp.3d at p. 1175
[“that the statute may be overinclusive by its enforcement as to indigent traffic debtors
with no means of paying the fine, does not, under rational basis review, render it
unconstitutional”].) But that is a question for another day.


                                               7
       Dueñas makes a compelling argument that the imposition of the court operations
and court facilities assessments without consideration of a defendant’s ability to pay is
bad policy. But that is an issue best left to the Legislature.
       For the foregoing reasons, I would affirm the judgment.




                                              8
I DISSENT:



_______________________________
ELIA, J.




People v. Santos
H045518
Trial Court:                        Santa Clara County Superior Court
                                    Superior Court No. C1758098

Trial Judge:                        Hon. Eric S. Geffon

Counsel for Plaintiff/Respondent:   Xavier Becerra
The People                          Attorney General

                                    Melissa A. Meth
                                    Deputy Attorney General


Counsel for Defendant/Appellant:    Under appointment by the Court of Appeal
John Alves Santos                   Lori A. Quick




People v. Santos
H045518
