Filed 2/26/20
                           CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D074935

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. SCD277673)

FERNANDO L. COTA,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County,

Esteban Hernandez, Judge. Affirmed in part, reversed in part and remanded.

        Justin A. Behravesh, under appointment by the Court of Appeal, for Defendant

and Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief

Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Steven T.

Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
       Fernando L. Cota pled guilty to the felony offense of carrying a concealed dirk or

dagger in exchange for three years of probation and the possibility that the charge might

be reduced to a misdemeanor at the end of one year. The trial court imposed various

probation conditions that Cota objected to in the trial court and challenges on appeal.

Based on the Supreme Court's recent decision in In re Ricardo P. (2019) 7 Cal.5th 1113,

1122 (Ricardo P.), we conclude that the electronics search condition that the court

imposed is unreasonable, but remand for further consideration of a potentially appropriate

electronics search condition. We uphold the remaining challenged conditions. Cota also

challenges the trial court's imposition of various fees and a restitution fine, arguing that

due process requires a finding of ability to pay before such charges may be imposed. He

requests remand to the trial court for a hearing to consider his ability to pay the fines and

fees assessed at sentencing. We conclude that due process does not bar the imposition of

the assessments and fine that Cota challenges and that remand on this issue is therefore

not required. In all other respects the judgment is affirmed.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Cota was seen swinging a machete attached to a long stick in a San Diego public

park. His clothes were visibly soiled. Someone who observed his behavior called the

police, describing Cota as a violent mentally ill man. When police arrived, they found

Cota standing near a water fountain with the machete balanced on top of the fountain. In

view of the officers, Cota sat down and pulled a six-inch drywall knife from his



                                              2
waistband, placing it next to him. The officers arrested Cota for an outstanding

misdemeanor warrant after running a records check.

       Cota was charged with a felony for unlawfully carrying a concealed weapon (dirk

or dagger). (Pen. Code, § 21310.)1 He pled guilty to the charge in exchange for a

recommendation of three years formal probation and the anticipated reduction of his

felony conviction to a misdemeanor once he completed drug treatment and mental health

counseling.

       The trial court accepted the recommendation and sentenced Cota to three years of

probation with several conditions. Cota objected to a condition compelling him to submit

electronic devices for search at any time when required by a probation or law

enforcement officer. He also objected to conditions that he attend anger management

counseling and refrain from alcohol use if directed by his probation officer. The trial

court imposed these conditions over Cota's objections.

                                      DISCUSSION

       Cota argues that we should strike the electronics search condition, the anger

management condition, and the alcohol use condition as unreasonable. We agree that

permitting warrantless searches of Cota's electronic devices was an abuse of discretion

based on the Supreme Court's recent Ricardo P. decision. We uphold the remaining

conditions as reasonable.




1      Further statutory references are to the Penal Code unless otherwise indicated.

                                             3
              1. Electronics Search Condition

       Cota challenges the electronics search condition as unreasonable because it is

unrelated to future criminal conduct. We review probation conditions for abuse of

discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)

       Trial courts have wide latitude to impose conditions consistent with the twin aims

of probation: rehabilitation of the defendant with minimal risk to the community.

(§ 1202.7; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Nonetheless, any

conditions must be reasonable. (§ 1203.1; see also People v. Beal (1997) 60 Cal.App.4th

84, 86 (Beal).) A condition of probation will be upheld as reasonable unless it meets all

three criteria outlined in People v. Lent (1975) 15 Cal.3d 481 (Lent): the condition

" ' "(1) has no relationship to the crime of which the offender was convicted, (2) relates to

conduct which is not in itself criminal, and (3) requires or forbids conduct which is not

reasonably related to future criminality." ' " (Ricardo P., supra, 7 Cal.5th at p. 1118;

Olguin, supra, 45 Cal.4th at p. 379.)

       The electronics search condition satisfies the first two Lent criteria. There was no

relationship between electronic devices and the crime Cota pleaded guilty to—possession

of a concealed weapon, and using electronic devices is not inherently criminal. Since the

condition meets the first two prongs, it can survive review for abuse of discretion only if

it regulates conduct that is reasonably related to future criminality.

       The California Supreme Court recently clarified that the reasonableness inquiry of

Lent's third prong "contemplates a degree of proportionality between the burden imposed

by a probation condition and the legitimate interests served by the condition." (Ricardo

                                              4
P., supra, 7 Cal.5th at p. 1122.)2 When significant privacy interests are implicated by a

probation condition (such as sweeping electronics searches without a warrant), the burden

imposed on a defendant is a heavy one. Such a condition is unreasonable unless it is

"proportional to achieving some legitimate end of probation." (Id. at p. 1127.)

Reasonableness necessitates "more than just an abstract or hypothetical relationship

between the probation condition and preventing future criminality." (Id. at p. 1121.) In

other words, to justify a burdensome condition, there must be a specific relationship—

grounded in the facts of the case—between the condition and preventing future

criminality.

       Ricardo P. involved a juvenile who admitted having committed a felony burglary

and subsequently challenged a probation condition allowing warrantless searches of his

electronic devices and accounts. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The trial

court justified the search condition as useful in monitoring Ricardo's compliance with the

terms of his probation because it allowed officers to look for electronic communications

about drugs. Nothing on the record showed that the juvenile had in fact used his phone to

purchase drugs. The trial court's reasoning was based on a generalization that juveniles

use their phones to buy drugs and brag about drug use online. (Id. at p. 1119.) The

Supreme Court struck the condition under Lent, finding that the condition was not




2       Ricardo P. was decided after the initial briefing in this case was complete. We
later requested supplemental briefing from the parties on this issue in light of Ricardo P.

                                             5
reasonably related to Ricardo's future criminality because it disproportionately burdened

his privacy interest without specific and substantial justification. (Id. at p. 1126.)

       The same issues that were of concern to the Supreme Court in Ricardo P. are

present in this case. Under the terms of his probation, Cota's electronic devices can be

searched at any time without a warrant. This implicates a significant privacy interest. As

in Ricardo P., the trial court imposed the condition to make it easier to monitor Cota's

compliance with other probation terms.3 In both cases, the condition was premised on a

general assumption that drug users routinely negotiate drug purchases with their phones.

There was no reference to Cota's specific actions.4 A case-specific rationale that would

make this burden proportional is no more present here than it was in Ricardo P. Mere

convenience in monitoring a parolee's conduct, coupled with generic descriptions of how

some people use cell phones, are not sufficient to render this burden on Cota's privacy

interests reasonable.

       The Supreme Court made it clear that "requiring a probationer to surrender

electronic devices and passwords to search at any time is . . . burdensome and intrusive,

and requires a correspondingly substantial and particularized justification." (Ricardo P.,



3      At sentencing, the People explained they were asking for the electronics search
condition because "he's got to be successful for a year, and the People feel it's appropriate
to have the appropriate tools to monitor him for that year to make sure he's successful."

4       At sentencing, the prosecutor remarked that "the People think [the electronics
search condition is] absolutely appropriate especially in a case in which he's currently
involved in drug treatment. . . . [C]ertainly people acquire drugs usually by the means of
a cell phone or some other electronic device . . . ."

                                              6
supra, 7 Cal.5th at p. 1126.) There is no substantial and particularized justification in the

record in this case. The electronics search condition thus meets all three Lent criteria and

is therefore unreasonable.5

       Indeed, the People concede in supplemental briefing that the electronics search

condition is overly burdensome and request that we remand to permit the trial court to

craft a more narrowly tailored search condition. We do not foreclose the possibility that a

narrower electronics search condition might be appropriate in this case based on facts that

are not reflected in the current record. We strike the condition, but do so without

prejudice to the People, who may demonstrate to the trial court with additional facts that

a more narrowly drawn electronics search condition is proportionate to the burden on

Cota's privacy interest.

              2. Other Challenged Probation Conditions

       Cota argues that the imposition of alcohol-related probation conditions is

unreasonable under Lent because it is not reasonably related to future criminality. We

disagree.

       Defense counsel challenged only one of four alcohol-related conditions at

sentencing—8.b.—which requires that Cota not knowingly use or possess alcohol if so

directed by his probation officer. As Cota concedes, any challenge to alcohol-related




5     Because we find the electronics search condition unreasonable under Lent, we
need not reach Cota's assertion that the condition is unconstitutionally overbroad.

                                              7
conditions other than 8.b. is forfeited. (People v. Welch (1993) 5 Cal.4th 228, 230.) We

therefore proceed to address Cota's challenge to 8.b.

       As with Cota's challenge to the electronics search condition, the first two Lent

criteria are met. Possessing or using alcohol is unrelated to Cota's offense and is legal for

someone his age.6 This leaves the third criterion for our consideration—whether

restricting Cota's use and possession of alcohol is reasonably related to his future

criminality.

       Cota relies on People v. Kiddoo (1990) 225 Cal.App.3d 922, in which the

appellate court struck a probation condition restricting alcohol use because it was not

related to the defendant's offense of possessing methamphetamine. (Id. at pp. 927–928.)

However, alcohol is a drug—albeit a legal one. This court has previously made clear that

"we disagree with the fundamental assumptions in Kiddoo that alcohol and drug abuse

are not reasonably related and that alcohol use is unrelated to future criminality where the

defendant has a history of substance abuse." (Beal, supra, 60 Cal.App.4th at p. 87;

accord People v. Balestra (1999) 76 Cal.App.4th 57, 69.)

       Cota disclosed to the probation department that he is a habitual user of

methamphetamine and a daily user of marijuana. He has prior convictions for being

under the influence of a controlled substance, possession of marijuana for sale,

possession of a controlled substance, and possession of drug paraphernalia. His history



6     We do not find support in the record for the People's speculation that Cota may
have been under the influence of alcohol when he was arrested in the park.

                                              8
of substance abuse is well documented. In the past, in upholding alcohol conditions like

the condition that the trial court imposed on Cota, we have noted that there is an

empirical nexus between drugs and alcohol. (Beal, supra, 60 Cal.App.4th at p. 87.) It

would make little sense to deprive Cota's probation officer of the power to direct Cota

away from alcohol as a substitute mind-altering substance when his substance abuse

history is so clearly demonstrated.

       The Beal court noted that "alcohol use may lead to future criminality where the

defendant has a history of substance abuse."7 (Beal, supra, 60 Cal.App.4th at p. 87.) We

therefore conclude that the trial court's imposition of alcohol-related probation conditions

was reasonably related to preventing future crimes, given Cota's history of drug use.

       Cota next challenges the anger management condition as unreasonable under the

third prong of Lent. We conclude that it, too, is reasonable under the circumstances.

       Cota cites his lack of convictions for violent crimes and an unclear connection

between his crime and displays of anger. But a history of violent crime and overt

displays of anger are not necessary preconditions for giving a probation officer discretion

to direct a probationer to an anger management program. Several facts in the record


7       Cota asks us to distinguish his case from Beal because Beal was charged with a
drug crime (Beal, supra, 60 Cal.App.4th at p. 85), whereas Cota was charged with
illegally possessing a weapon. While we recognize that Cota's case differs factually from
Beal's in this respect, review of a probation restriction on alcohol use is a fact-specific
inquiry. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.) The fact that Cota was
not, in this instance, convicted of a drug-related offense would clearly be relevant to
Lent's first prong, but it does not mean that the reasoning in Beal with respect to an
alcohol condition being reasonably related to future criminality is inapplicable to Cota's
situation.

                                             9
make the condition reasonable. Cota encountered the police because he was swinging a

machete in a public park, and he frightened someone enough to prompt a call to law

enforcement. The caller described Cota as violent and mentally ill. When the police

arrived, Cota revealed another weapon—the six-inch knife that led to the charge of which

he was ultimately convicted. He has a prior conviction for the manufacture of weapons

and has been diagnosed with schizoaffective disorder.8 These facts could reasonably

lead the trial court to conclude that Cota might benefit from anger management and that

such a tool could help prevent future criminal activity.9

              3. The trial court did not violate Cota's right to due process in
                 imposing various fees and a restitution fine without first
                 determining his ability to pay

       At his sentencing in November 2018, Cota was assessed a $40 court operations fee

(§ 1465.8), a $30 criminal conviction fee (Gov. Code, § 70373), a $300 minimum

restitution fine (§1202.4, subd. (b)), and a $30 county collection fee (id., §1202.4, subd.

(l)). Cota did not challenge the fine or fees and the trial court did not conduct a hearing

to determine his ability to pay.

8      Clinical evidence links schizophrenic conditions with violence. This correlation is
exacerbated with comorbid substance abuse. (Walsh et al., Violence and schizophrenia:
examining the evidence (June 2002) British Journal of Psychiatry, Vol. 180, pp. 490–
495.) We do not intend to imply that all people with schizophrenic conditions are prone
to violence. Rather, we merely observe that it is not irrational to consider Cota's mental
health in determining the reasonableness of an anger management program.

9       The court's imposition of anger management was qualified; the court invested
Cota's probation officer with the authority to direct Cota to a program if the officer deems
it a helpful supplement to his other mental health treatment. Creating this option seems
manifestly reasonable to us given the facts of the case.

                                             10
       Two months after Cota's sentencing hearing, the Court of Appeal decided People

v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), holding that criminal defendants have a

due process right to an ability to pay hearing before fines and fees are imposed. (Id. at p.

1172.) Cota relies on Dueñas to argue that he is entitled to such a hearing.

       The People's primary response to Cota's argument is that any ability to pay

argument was forfeited because he did not object to the fines and fees at sentencing. We

exercise our discretion to consider Cota's claim on the merits, notwithstanding any

possible forfeiture. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [reviewing

courts have discretion to excuse forfeiture].)

       In Dueñas, supra, 30 Cal.App.5th 1157 at page 1167, the court held that due

process precludes a trial court from "impos[ing]" certain assessments and fines when

sentencing a criminal defendant in the absence of determination that the defendant has a

"present ability to pay" those assessments and fines. Specifically, Dueñas held that "due

process of law requires [a] trial court to . . . ascertain a defendant's present ability to pay

before it imposes" (1) "court facilities and court operations assessments" (under § 1465.8

and Gov. Code, § 70373, respectively), or (2) a restitution fine (under § 1202.4).

(Dueñas, supra, at pp. 1164, 1167, 1172.)

       More recently, however, another Court of Appeal opinion questioned whether

"Dueñas's expansion of the boundaries of due process" to provide an additional

"protection not conferred by either [of Dueñas's] foundational pillars" is a "correct

interpretation," and ultimately concluded that it is not. (People v. Hicks (2019) 40

Cal.App.5th 320, 327, review granted Nov. 26, 2019, S258946 (Hicks).) In considering

                                               11
the issue, the Hicks court noted that Dueñas rests on "two strands of due process

precedent," the first of which "secures a due process-based right of access to the courts"

(italics omitted), and the second of which "erects a due process-based bar to incarceration

based on the failure to pay criminal penalties when that failure is due to a criminal

defendant's indigence rather than contumaciousness." (Id. at p. 325–326.) Hicks

explains, neither of these strands "dictate[s]" Dueñas's result. (Id. at p. 326.) For this

reason, and because Dueñas "is inconsistent with the purposes and operation of

probation" (id. at p. 327), the court in Hicks concluded that "due process does not speak

to [the] issue [of how best to balance the competing interests of indigent defendants and

an operable court and victim restitution system] and . . . Dueñas was wrong to conclude

otherwise." (Id. at p. 329, first italics added.)

       We find the Hicks court's analysis of the due process issue to be persuasive, and

adopt the holding in Hicks that "[n]either strand [of due process precedent] bars the

imposition of [the] assessments and the . . . restitution fine" even as to a defendant who is

unable to pay. (Hicks, supra, 40 Cal.App.5th at p. 329.) Like the defendant in Hicks,

Cota has not, to date, been denied access to the courts or been incarcerated as a result of

the imposition of these financial obligations. No remand for an ability to pay hearing is

therefore necessary.

                                          DISPOSITION

       We strike the electronics search condition and remand to the trial court to permit

the court to attempt to fashion a more narrowly drawn electronics search condition,



                                               12
consistent with this opinion. We uphold all other probation conditions and the fine and

fees that the trial court imposed. In all other respects the judgment is affirmed.



                                                                       AARON, J.

I CONCUR:

HALLER, Acting P. J.




                                             13
Dato, J., Concurring and Dissenting.

       I join the majority opinion's conclusions as to each of Fernando Cota's challenges

to the conditions of his probation, but depart from its determination that he is not entitled

to remand for a hearing on his ability to pay the imposed fines and fees.

       In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Velia Dueñas sought

relief from a poverty-driven cycle of debt-to-incarceration. As a teenager, she incurred

three citations and over $1000 in assessments. When she could not pay, the state

suspended her driver's license. She could not afford the fees for reinstatement and

accumulated misdemeanor convictions and further debt from driving on the suspended

license. When given the choice, she opted for incarceration over incurring further debt

for nonpayment. The court of appeal agreed with Dueñas that imposing fines and fees1

on defendants without consideration of their ability to pay violates due process. (Id. at

pp. 1161, 1164.)

       That Dueñas was a homeless mother of two with cerebral palsy undoubtedly

highlighted the unfairness of her situation. But her appeal called attention to issues of

broad and increasing significance: whether and to what extent is it appropriate to finance

government services—in particular, the judicial system—with fines and fees assessed

against convicted criminal defendants? And what recourse does an indigent defendant




1     Specifically, Dueñas addressed the imposition of a restitution fine (Pen. Code,
§ 1202.4), court operations fee (Pen. Code, § 1465.8), and court facilities fee (Gov. Code,
§ 70373).
have to challenge the imposition of fines and fees on the basis that he or she lacks the

ability to pay?

       Fines have long been a part of criminal sentencing.2 But fees are a relatively

recent addition, coinciding with the exponential growth of the American correctional

population in the last 40 years.3 As criminal justice costs skyrocketed,4 states

increasingly sought to offset expenditures without raising taxes.5 Between the early-

1980's and the mid-2000's, the national percentage of prisoners who were assessed fees




2      See Gorod & Frazelle, Timbs v. Indiana: Mere Constitutional Housekeeping or
the Timely Revival of A Critical Safeguard? (2019) Cato Sup. Ct. Rev., 215, 222.

3      See generally Bureau of Justice Statistics, Prisoners Series
<https://www.bjs.gov/index.cfm?ty=pbse&tid=0&dcid=0&sid=40&iid=0&sortby=&page
=paging&curpg=1> [as of February 25, 2020], archived at <https://perma.cc/GEM9-
FSGA>.

4      "From 1983 to 2012, criminal justice costs grew by more than 650 percent. One
study found that the cost of the expansion in the criminal justice system during the thirty-
year period was $3.4 trillion. By 2012, criminal justice costs were over $270 billion[.]"
(Sobol, Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal
Justice Debt Abuses (2017) 88 U. Colo. L.Rev., 841, 857, fns. omitted.)

5       See Martin et al., Shackled to Debt: Criminal Justice Financial Obligations and
the Barriers to Re-Entry They Create (2017) U.S. Department of Justice, National
Institute of Justice, p. 4 <https://www.ncjrs.gov/pdffiles1/nij/249976.pdf> [as of February
25, 2020], archived at <https://perma.cc/YJ9R-PBNK>; see also Counsel of Economic
Advisers Issue Brief: Fines, Fees and Bail, Payments in the Criminal Justice System that
Disproportionately Impact the Poor (Dec. 2015) p. 2 <https:// obamawhitehouse.
archives.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_ issue_brief.pdf
[as of February 25, 2020], archived at <https://perma.cc/42ME-8ZGD>.

                                             2
and fines rose from about 12 percent to over 65 percent,6 making monetary sanctions a

fixture of the criminal justice system. California has been no exception to this national

trend.7 Indeed, two of the three fees in Cota's case are authorized by statutes aimed at

revenue generation that were passed in the 2000's. (Pen. Code, § 1465.8; Gov. Code,

§ 70373; see Dueñas, supra, 30 Cal.App.5th at p. 1165.)

       Four decades into this monumental shift, two realities have become clear: fines

and fees put a significant burden on indigent defendants,8 and these defendants (who

constitute the vast majority of defendants in the criminal system) cannot pay their court-




6     See Harris et al., Drawing Blood from Stones: Legal Debt and Social Inequality in
the Contemporary United States (2010) 115 American Journal of Sociology, 1753,
1769‒1770 (hereafter Harris et al.).

7      As of 2006, the state had "over 269 separate court fines, fees, forfeitures,
surcharges . . . [from] statutes in 16 different government codes . . . in addition to the
many fees, fines, and special penalties that local governments may impose on most
offenses." (Nieto, Who Pays for Penalty Assessment Programs in California? (2006)
California Research Bureau, p. 1 <https://csgjusticecenter.org/wp-content/uploads/
2013/07/2006-CA-report.pdf> [as of February 25, 2020], archived at <https://perma.cc/
CM8K-6DXR>.)

8      Defendants often struggle to pay their fines and fees and can carry the debt long-
term. This "indebtedness contributes to the accumulation of disadvantage in three ways:
by reducing family income; by limiting access to opportunities and resources such as
housing, credit, transportation, and employment; and by increasing the likelihood of
ongoing criminal justice involvement." (Harris et al., supra, p. 1756; see Colgan,
Reviving the Excessive Fines Clause (2014) 102 Cal. L.Rev. 277, 284‒295.)
                                             3
related debts.9 By any metric, the experiment of leveraging compulsory user fees to fund

the justice system has been less than an unqualified success for governments and a

personal tragedy for many individuals.




9       Statewide, there is a "lack of complete and accurate data on fine and fee
collections." (Legis. Analyst, Improving California's Criminal Fine and Fee System
(2016) p. 3 <https://lao.ca.gov/reports/2016/3322/criminal-fine-and-fee-system-
010516.pdf> [as of February 25, 2020], archived at <https://perma.cc/7HAM-YM8U>.)
Available statistics often include infractions, making it difficult to determine the
collection and default rates for criminal defendants convicted of felonies and
misdemeanors. (See Judicial Council of California, Report to the Legislature: Revenue
Collected for Fiscal Year 2018-19 (2019) <https://www.courts.ca.gov/documents/lr-
2019-JC-revenue-collected-fy-2018-19-gov-68514.pdf> [as of February 25, 2020],
archived at <https://perma.cc/29WE-PPKH>.) But it is clear California collects only a
small percentage of what it is owed each year. Outstanding delinquent debt has increased
from five to ten billion in the last decade, while revenue collections have fallen from a
peak of $2 billion to $1.4 billion; "these two trend lines propose . . . an ominous prospect
for California about the durability and sustainability of a criminal fine, fee and penalty
system as a revenue stream . . . . (Martin Hoshino, Administrative Director of the
Judicial Council of the California Courts, updating the Judicial Council on Fines and Fees
(Dec. 2019) <https://www.youtube.com/watch?v=3xOvNAv9C-c&t=2s> [as of February
25, 2020], archived at <https://perma.cc/H4YZ-TGG4>.) Much of this delinquent debt
may be uncollectable—meaning the cost of collection exceeds the potential recovery.
(Legis. Analyst, Governor's Criminal Fine and Fee Proposals (2017) pp. 7‒8
<https://lao.ca.gov/reports/2017/3600/Criminal-Fine-Fee-030317.pdf> [as of February
25, 2020], archived at <https://perma.cc/6VUN-WWV7>.)
        Los Angeles and San Francisco report low rates of collection on local fees. Los
Angeles may collect as little as four percent. (County of Los Angeles, Chief Executive
Office, Report Back on Addressing Fines and Fees Associated with Criminal Justice
System Involvement (Dec. 13, 2019) p. 59 <http://file.lacounty.gov/SDSInter/bos/bc/
1065611_121319.B101299.FinesandFees.bm.pdf> [as of February 25, 2020], archived at
<https://perma.cc/2484-ML6G>.) San Francisco estimates its collection rate is less than
20 percent. The city abolished local fees and canceled outstanding debt in 2018. (The
Financial Justice Project, et al., Criminal Justice Administrative Fees: High Pain for
People, Low Gain for Government (2018) pp. 1, 6 <https://sftreasure.org/
sites/default/files/2019-09/Hig%20Pain%20Low%20Gain%20FINAL_04-24-2019.pdf>
[as of February 25, 2020], archived at <https://perma.cc/B9E6-CD9F>.)
                                             4
       The problem has now captured the attention of key figures in the legal profession.

The American Bar Association identified monetary sanctions as a primary factor in the

erosion of public trust in the justice system and has suggested reforms, such as

considering an individual's ability to pay "at each stage of proceedings, including at the

time the fees are imposed and before imposition of any sanction for nonpayment . . . ."

(ABA, Ten Guidelines on Court Fines and Fees (Aug. 2018), Guidelines 1 & 210.) A

task force convened by the National Center for State Courts has similarly released a

practice guide that emphasizes safeguards based on ability to pay, including granting

judges discretion to "impose Legal Financial Obligations based on an individual's income

and ability to pay." (See Nat. Center for State Cts., National Task Force on Fines, Fees,

and Bail Practices, Principles on Fines, Fees, and Bail Practices (2019), principle 6.2,

p. 611.) Here in California, our Chief Justice underscored the urgency of this issue in her

2019 State of the Judiciary address, stating that we "must ensure . . . fines and fees no

longer fall on those least able to afford them." (Tani G. Cantil-Sakauye, Chief Justice of

the Cal. Supreme Ct., State of the Judiciary address to the Cal. Legis. (Mar. 19, 2019)12.)


10     <https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent
_defendants/ls_sclaid_in d_10_guidelines_court_fines.pdf> [as of February 25, 2020],
archived at <https://perma.cc/EZ54-PYRN>.

11     <https://www.ncsc.org/~/media/Files/PDF/Topics/Fines%20and%20Fees/
Principles%201%2017%2019.ashx> [as of February 25, 2020], archived at
<https://perma.cc/R72D-CUVQ>.

12    <https://newsroom.courts.ca.gov/news/2019-state-of-the-judiciary-address> [as of
February 25, 2020], archived at <https://perma.cc/QN5Q-6J9P>.

                                              5
Echoing her concerns, the Administrative Director of California's Judicial Council has

remarked that fines and fees create a "destitution pipeline." Among other reforms, he

suggests setting fees in accordance with individual ability to pay. (Levi et al., Fixing

Fees, Fines & Bail: Toward a Fairer System of Justice (2019) vol. 103, No. 3,

Judicature, at pp. 17‒19 [comments of Martin Hoshino, Administrative Director of the

Judicial Council of the California Courts]13.)

       So there is a problem. But is it a constitutional problem? In summary fashion,

and relying exclusively on People v. Hicks (2019) 40 Cal.App.5th 320, review granted

November 26, 2019, S258946 (Hicks), the majority dismiss Cota's arguments as devoid

of any legitimate constitutional concerns. Hicks, we are told, persuasively concluded that

Dueñas got it wrong when it comes to a due process analysis. Cota wasn't denied access

to the courts, and he wasn't incarcerated for failing to pay any fines or fees. That's the

sum and substance of the due process guarantee. If there is a problem, it's the

Legislature's to address.

       But is there more to it?

       In the year since its filing, the Dueñas decision has generated abundant discussion

and debate. Outside of Hicks, however, the bulk of that discussion has not concerned

whether a criminal defendant's ability to pay has any role to play in defining a

constitutional threshold for the assessment of fines and fees. Rather, the principal debate



13      <https://judicature.duke.edu/articles/fixing-fees-fines-bail-toward-a-fairer-system-
of-justice/> [as of February 25, 2020], archived at <https://perma.cc/V3CG-FA6R>.

                                              6
has focused on how to frame and analyze a constitutional challenge, and specifically

whether due process principles or the Eighth Amendment's Excessive Fines Clause

provide the most appropriate vehicle for the analysis.

       The essence of Cota's argument is that certain fines and fees, even though they are

"mandatory" by terms of the applicable statute, cannot be constitutionally imposed on

him because he has no ability to pay them. Cota requests a hearing at which he can

present evidence of his inability to pay. Because his opening brief was filed less than

three months after Dueñas was decided, Cota's counsel understandably relied on a due

process analysis, but the particular constitutional label he attaches to his argument is

unimportant. (See City of Revere v. Massachusetts General Hosp. (1983) 463 U.S. 239,

243−244 [plaintiff's claim, mislabeled as an Eighth Amendment issue, properly found to

be a violation of due process].) The critical question is whether a defendant's ability to

pay is appropriately considered in determining whether there are constitutional

limitations on the amounts of fines and fees imposed. If it is, Cota should be afforded a

hearing at which he can attempt to make his case.

       The United States Supreme Court "has long been sensitive to the treatment of

indigents in our criminal justice system." (Bearden v. Georgia (1983) 461 U.S. 660,

664.) The Due Process Clause provides a general framework to "analyze the fairness of

relations between the criminal defendant and the State." (Id. at p. 665; see id. at

pp. 672−673 [revoking probation based on a failure to pay without finding such failure

was willful "would be contrary to the fundamental fairness required by the Fourteenth

Amendment"].) Although Dueñas applied a due process framework, another approach

                                              7
invokes the Eighth Amendment, which aims "to limit the government's power to punish."

(Austin v. United States (1993) 509 U.S. 602, 609 (Austin).) Tracing its roots to Magna

Carta, the Excessive Fines Clause restricts the government's power to extract payments as

punishment for some offense. (Timbs v. Indiana (2019) ___ U.S. ___, [139 S.Ct. 682,

687] (Timbs).) Sanctions fall within the scope of this clause if they are at least partly

punitive. (Austin, at p. 621 [rejecting argument that civil in rem forfeiture was not

punitive simply because "the forfeited assets serve to compensate the Government for the

expense of law enforcement activity and for its expenditure on societal problems"].)

       One of the flaws in Hicks, supra, 40 Cal.App.5th 320, review granted—and in the

majority's reliance on it here—is its failure to even consider an alternative Eighth

Amendment analysis, applicable to some or all of the fines and fees, that would include

an evaluation of the defendant's ability to pay.14 Even as they have questioned aspects

of its due process reasoning, several post-Dueñas opinions have recognized that a

defendant's ability to pay is an appropriate and sometimes critical factor in applying the

Eighth Amendment's Excessive Fines Clause. Indeed, the California Supreme Court has

acknowledged that both due process and Eighth Amendment analyses incorporate similar



14     In People v. Caceres (2019) 39 Cal.App.5th 917, the court rejected a Dueñas due
process challenge and declined to discuss an Eighth Amendment approach suggested by
the Attorney General, citing a case for the generic proposition that an appellate court can
refuse to consider issues not properly raised in the opening brief. (Id. at p. 923.) But the
issue here has been properly raised—whether criminal defendants may be
constitutionally assessed fines and fees in an amount they have no ability to pay. The
only defect, if there is one here or in Caceres, is defense counsel's failure to attach the
right constitutional label to the argument. A mistake in labeling is an insufficient basis to
refuse even to consider an otherwise proper and potentially meritorious argument.
                                              8
concepts—including ability to pay—and that it often "makes no difference whether we

examine the issue as an excessive fine or a violation of due process." (People ex rel.

Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) Dueñas made the

same observation in charting its course. (Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8;

see also People v. Belloso (2019) 42 Cal.App.5th 647, 660.)

       Given the procedural posture of this case—Cota has never had a hearing at which

he could present evidence of his financial condition—it is unnecessary at this juncture to

extensively analyze or definitively resolve how a defendant's ability to pay should affect

the imposition of fines and fees. I am inclined to agree with those courts, including ours,

that have preferred an Eighth Amendment analysis at least as to fines such as the

restitution fine in this case. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 96,

rev.gr. Nov. 13, 2019, S257844; People v. Aviles (2019) 39 Cal.App.5th 1055, 1071.)

Fines are clearly punitive, and given an available Eighth Amendment analysis that

considers ability to pay (along with other factors), the safety net provided by broader

principles of due process seems unnecessary.15 Whether fees and assessments imposed

on convicted defendants are sufficiently punitive to invoke the Eighth Amendment

presents a closer question, but we must keep in mind that the standard asks merely

whether they are partially punitive. (Austin, supra, 509 U.S. at pp. 610, 621; see Timbs,

supra, 139 S.Ct. at p. 689 [noting in an Eighth Amendment discussion that " 'state and


15     "Where a particular Amendment 'provides an explicit textual source of
constitutional protection' against a particular sort of government behavior, 'that
Amendment, not the more generalized notion of "substantive due process," must be the
guide for analyzing these claims.' " (Albright v. Oliver (1994) 510 U.S. 266, 273.)
                                             9
local governments nationwide increasingly depend heavily on fines and fees as a source

of general revenue' "]; Aviles, supra, at p. 1071 [applying an Eighth Amendment analysis

to both fines and fees]; see also Colgan, The Excessive Fines Clause: Challenging the

Modern Debtor’s Prison (2018) 65 UCLA L.Rev. 2, 35‒40 [suggesting fees are partially

punitive].)

       We will have plenty of time to debate doctrinal nuances after Cota has been

afforded the opportunity to make a complete record. At this point, however, it is

sufficient to conclude that he should have the chance to prove the extent of his inability to

pay the assessed fines and fees as well as to argue—based on either the Eighth

Amendment, or the Due Process Clause, or both—why his inability makes their

impositions constitutionally invalid.



                                                                       DATO, J.




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