Filed 3/27/20
                   CERTIFIED FOR PARTIAL PUBLICATION*

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FIRST APPELLATE DISTRICT

                                  DIVISION FOUR

 THE PEOPLE,
            Plaintiff and Respondent,        A156253

 v.                                          (City & County of San Francisco
 RON COWAN,                                  Super. Ct. Nos. 229497/18005814,
                                             229498/18010055)
            Defendant and Appellant.




        Ron Cowan appeals from a final judgment and sentence entered after a
guilty plea, preceded by the denial of a motion to suppress evidence. The
grounds for appeal are three-fold. First, Cowan argues that his detention in
a traffic stop prior to his arrest violated the Fourth Amendment for lack of
reasonable suspicion to detain. Second, Cowan challenges as an abuse of
discretion a 16-month jail term imposed upon him as part of a grant of
probation—a so-called “hammer,” to which he consented as part of his plea—
for his failures to appear at sentencing and at a probation interview
appointment. Third, Cowan attacks the court operations and court facilities
assessments and the minimum restitution fine imposed on him over his




       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
        *

opinion is certified for publication with the exception of parts II and III of the
lead opinion.
                                        1
inability-to-pay objection under People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas).
      In the unpublished portion of this opinion, we reject Cowan’s argument
that he was detained in violation of the Fourth Amendment. We also reverse
the 16-month jail sentence, not because imposing it as a hammer was an
abuse of discretion, but because imposing a jail term that exceeds 12 months
as a condition of probation is an unauthorized sentence under Penal Code
section 19.2. In the published portion of the opinion, we conclude the trial
court erred in overruling Cowan’s inability-to-pay objection. On the ability-
to-pay issue, we hold that, upon proper objection, a sentencing court must
allow a defendant facing imposition of a minimum restitution fine or court
operations and court facilities assessments to present evidence and argument
why these financial exactions exceed his ability to pay.
      We ground our ability-to-pay holding on an excessive fines analysis
under the Eighth Amendment and under article I, section 17 of the California
Constitution, rather than the due process analysis Dueñas rests upon. While
we ultimately reach a result similar to that in Dueñas, we order a disposition
that is different in some respects from that ordered by the Dueñas panel. We
shall direct that, upon remand, Cowan has the burden of proving inability to
pay; that assessment of Cowan’s ability to pay shall include not only present
ability to pay but whether he has any reasonable prospect of paying in the
future; and that, should the court find the restitution fine to be excessive, the
appropriate disposition is to decline to impose it, not to stay it.
                              I. BACKGROUND
      On April 14, 2018, at about 6:10 p.m., San Francisco Police Sergeant
James O’Malley was on patrol in the area of Polk and Grove Streets when he
was approached by a woman, identified as “Arie,” who said she believed two


                                         2
white males were breaking into a car nearby. Sergeant O’Malley went to the
location of the reported break-in and found an empty parking space where
glass shards were on the ground. On the way, a second witness, identified as
James Scott, said he saw one of the suspects, a man wearing a yellow jacket
with dread-style hair, use what appeared to be a cell phone to break the left
rear passenger window of a “newer” “white” car that looked “similar to a
Nissan Ultima [sic]” and reach into it. Scott then saw a second man, who was
nearby, eventually get in the car with the first man, at which point they
drove off together. The second man had long hair.
      After driving in the vicinity of Market Street and Civic Center looking
for the stolen car, 39 minutes after leaving the scene of the break-in Sergeant
O’Malley drove off to respond to a call from dispatch about a matter near
Larch Way and Eddy Street. While en route to that area, on westbound Eddy
Street at the intersection of Gough Street, Sergeant O’Malley saw a white
Ford Fusion waiting there with a missing or rolled down left rear passenger
window and a bicycle lying across the back seat. The driver of the Fusion had
“kind of a dreadlocks style” hair, the passenger had long hair, and both were
white.
      Sergeant O’Malley then decided to do an investigative stop and made a
U-turn. At that point, the Fusion accelerated quickly, squealing its tires, but
was forced to stop in the midst of a traffic jam. Sergeant O’Malley and
multiple other officers who had been called in for backup converged on the
car in heavy traffic. Neither man in the car was wearing a yellow jacket.
Cowan, the driver of the car, was placed in handcuffs at the scene, and then
taken to a cold show where he was identified by Scott as one of the two
suspects who drove off in the burgled car.




                                       3
      Cowan filed a motion to suppress, arguing lack of reasonable suspicion
to detain him in the traffic stop on Eddy Street. The motion was denied.
After pleading guilty to second degree auto burglary (Pen. Code, § 459),
Cowan, pending preparation of the probation report and sentencing, agreed
to a 16-month hammer (i.e., imposition of a 16-month term in county jail if he
failed to appear for his sentencing hearing or to his probation department
interview). He failed to appear at both sentencing and his probation
interview. At a continued sentencing hearing, the court rejected Cowan’s
excuses for these failures to appear—he claimed he was late to court because
he had trouble finding a place to stow his backpack, and that he left a
voicemail with the probation department asking to reschedule—and then
sentenced Cowan to three years’ formal probation, subject to the 16-month
hammer. The court also imposed a $300 restitution fine (Pen. Code,
§ 1202.4), a $40 court operations assessment (Pen. Code, § 1465.8), and a $30
court facilities assessment (Gov. Code, § 70373).
      Appealing from the judgment of conviction and the sentence, Cowan
argues that: (1) the court erroneously denied his pre-plea motion to suppress
because his detention 39 minutes after and eight to ten blocks from the scene
of the break-in based on nothing more than that he was a white man with
dread-style hair, driving a white car, is not enough to justify a detention
under Terry v. Ohio (1968) 392 U.S. 1 (Terry); (2) the court abused its
discretion in imposing the 16-month hammer because there is no substantial
evidence that Cowan’s failures to show up to the sentencing hearing and to
his probation department appointment were willful; and (3) we should either
strike the restitution fine and the assessments or stay them under Dueñas.
We reject the first argument, but find merit to the second and third.




                                       4
                II. DENIAL OF MOTION TO SUPPRESS
      We conclude that when Sergeant O’Malley encountered Cowan on Eddy
Street, he had specific and articulable facts indicating Cowan’s possible
involvement in criminal activity.
      Two witnesses told O’Malley that each believed two white men were
breaking into a car. The second witness, Scott, described the men as having
long hair, and said one of them had dreadlocks. Scott said the man with
dreadlocks broke the left rear passenger window of the car by using a cell
phone. Scott described the car as a newer white car, “similar to a Nissan
Ultima [sic].” O’Malley was familiar with this car. He described it as a
“medium-size sedan, four doors, kind of common and sedan styling, similar to
a number of sedans on the market.” Scott next led Sergeant O’Malley to the
location where he had made his observations. There, O’Malley observed an
empty parking space with shards of shattered glass on the ground.
Approximately 40 minutes later, a distance away but in the same general
area, Sergeant O’Malley saw a white male with dreadlocks driving a white
four-door Ford Fusion. The Fusion was a newer model, a 2017, and the
passenger in the car was a white male with long hair. Furthermore, the “left
rear window was either down or missing.”
      Challenging the grounds for detention as violative of the Fourth
Amendment under Terry, supra, 392 U.S. 1, Cowan emphasizes the different
makes of the two cars involved, the distance between the location of the crime
and the location where he was detained, the passage of time, and the
differences between the two scenes (i.e., bicycle on back seat in one scene but
not the other, yellow jacket in one scene but not the other). We are not
persuaded that any of these “discrepancies” makes a difference for Fourth
Amendment purposes. Enough unique identifiers were known to Sergeant


                                       5
O’Malley—white, relatively new sedan in the same general area as the break-
in; two white men in it, one with dread-style hair; open left rear passenger
window—to detain the men in the car for questioning, especially since the
driver’s conduct could reasonably be interpreted as an attempt to flee in the
presence of police.
      This is not a case in which a detention was made based on a hunch,
without any objective specifics connecting the detainee to criminal activity.
Upon consideration of the totality of the circumstances, we are satisfied that,
when Sergeant O’Malley spotted Cowan driving a white car on Eddy Street,
he had ample basis to connect him to the car theft in the vicinity of Polk and
Grove Streets and thus to conduct a Terry stop. (In re Tony C. (1978)
21 Cal.3d 888, 894 [“The possibility of an innocent explanation does not
deprive the officer of the capacity to entertain a reasonable suspicion of
criminal conduct. Indeed, the principal function of [police] investigation is to
resolve that very ambiguity and establish whether the activity is in fact legal
or illegal”]; People v. Leath (2013) 217 Cal.App.4th 344, 354–355 [minor
discrepancies in descriptions of a suspect or a vehicle are not dispositive for
purposes of reasonable suspicion].)
              III. IMPOSITION OF 16-MONTH HAMMER
      At the sentencing hearing on January 9, 2019, the prosecutor pointed
out that Cowan had been on felony probation at the time of the vehicle
burglary to which he pleaded guilty, and that he had a very extensive
criminal history. The prosecutor stated that the terms of the hammer were
quite clear—that it would indeed serve as a hammer, not as a substitute
sentence. The prosecutor stated he would compromise and agree to a one-
year hammer for Cowan with probation still being in place. The prosecutor
argued that the “credit for time served” sentence recommended by the


                                        6
probation officer, “given the nature of the negotiations that occurred in this
case” and given Cowan’s history, was not appropriate. And, the prosecutor
continued, “irrespective of what probation may indicate what they think is
appropriate here, they were not part of the negotiated deal. That negotiated
deal Mr. Cowan agreed to included the 16-month hammer. [¶] If he is
uninterested in the proposed compromise of a year, then I think that the
16-month hammer should be imposed, and he should still be on probation
afterwards.”
      The court essentially agreed with the prosecutor: “THE COURT: So in
the Court’s view, [the prosecutor]’s position is correct. The parties[’]
negotiated resolution here stated clearly on the record, and the Adult
Probation Department’s overall recommendation are the same. That is, if the
defendant failed to comply with the conditions of the hammer, as he did, the
recommendation I’m looking at in the pre-sentence report is that he be
sentenced to a term of 16 months as well as be placed on probation. [¶] And
the pre-sentence report very clearly states the reasons for that conclusion,
stating that Mr. Cowan has an extensive criminal history dating back to
1999. He has been sentenced to probation on numerous occasions which were
met with probation violations, modifications, and unsuccessful terminations.
He also has been sentenced to state prison in another state on two occasions,
and among other things, that at the time of his arrest he was on felony
probation in San Francisco for second-degree burglary.”
      After reciting this background relating to Cowan’s record of prior
convictions and probation history, the court turned to the parties’ discussions
about Cowan’s sentence. “[T]he Court has engaged in discussions—informal
discussions with counsel in chambers, intended to arrive at a sentence that
albeit one at variance with the one that the defendant expressly agreed to on


                                        7
the record, that in the Court’s and the parties’ view would be a just sentence
under the circumstances. [¶] And it was under those circumstances that [the
prosecutor] is, as he has indicated, that the People, as a compromise, would
be willing to reduce the so-called hammer to [a] 12-month period rather than
a 16-month period. Of course what we are talking about here is the
defendant is 4019 eligible. [¶] So, [defense counsel], you offered me a choice.
I’m going to offer your client, in turn, a choice, and then I’m going to give you
a couple of minutes to consider it with him, and then I’m going to impose
sentence.”
      At that point the court set out Cowan’s options. “The choices [are] as
follows: I will either sentence him in accordance with the terms of the
parties’ original negotiated settlement; that is, that he be placed on three
years of Adult Probation, on the condition that he serve 12 months in the—16
months in the county jail, and the other conditions that were agreed to at the
time. [¶] Or if he is willing to accept the conditions of probation, I would be
willing to impose sentence on the compromised version that [the prosecutor]
has suggested; that is, that—the custody condition of probation be a
12-month period. If he is going to accept that sentence, that is the sentence I
will impose. [¶] If he will not, I will impose the original negotiated 16-month
probationary sentence. So I’m going to give you a couple of minutes to
discuss that with your client. Those are his choices. And I will be back in 5
minutes or so, and we will decide which way to go.”
      After a short recess, on-the-record proceedings resumed and defense
counsel told the court that Cowan did not want to accept the 12-month
compromise, but wanted “the hammer of 16 months imposed with no
probationary terms.” The court told counsel and Cowan no—that was not one
of the choices given to Cowan—and then imposed sentence, in relevant part,


                                        8
as follows: “THE COURT: Very well. Consistent with the parties’ negotiated
resolution in this case, it is the judgment and sentence of the Court as
follows: Imposition of sentence is suspended. Defendant is placed on formal
probation to the Adult Probation Department for a period of 3 years on the
following terms and conditions: [¶] He shall serve 16 months in the county
jail. He is entitled to credit for time served of 81 days. He is subject to a
search and seizure condition. His person, property, premises and vehicle are
subject to search without probable cause or reasonable suspicion at any time
of the day or night by any peace, parole or probation officer.”
      Cowan argues that the imposition of a 16-month jail term as a hammer
for his failure to appear at sentencing on October 18, 2018, was an abuse of
discretion. We need not reach that issue because the sentence must be
vacated for another reason. Except in situations not here relevant, under
Penal Code section 19.2 “[i]n no case shall any person sentenced to
confinement in a county or city jail . . . , as a condition of probation upon
conviction of either a felony or a misdemeanor . . . be committed for a period
in excess of one year.” The negotiated sentence of three years’ probation
subject to a custody condition of 16 months in jail exceeded the maximum
period of confinement that may be imposed under Penal Code section 19.2;
Cowan could have been sentenced to a 16-month jail term, or to probation for
3 years, but not to both unless the custody term was 12 months or less.1 We


      1 We note the court in People v. Bailey (1983) 140 Cal.App.3d 828, 831
held the provision of Penal Code former section 19a (now Pen. Code, § 19.2)
specifying the one-year limit on county jail time as a condition of probation
may be waived by the defendant. Specifically, the Bailey court concluded
that, because “section 19a was designed exclusively for the defendant’s
protection, we see no legal impediment to defendant’s knowing and
intelligent waiver of the one-year limitation therein on confinement in the

                                        9
must therefore vacate the imposed jail term of 16 months as an unauthorized
sentence and remand for resentencing.
            IV. ASSESSMENTS AND RESTITUTION FINE
      Cowan argues that, under Dueñas, supra, 30 Cal.App.5th 1157, the
trial court violated his federal and state rights to due process by imposing the
$70 in assessments and the $300 restitution fine—both of which are statutory
minimums for such assessments and fines—without determining his ability
to pay. At sentencing, Cowan’s counsel stated that Cowan “has no ability to
pay. So most, if not all, of these fines and penalties should not be assessed
because he has no ability to pay.” The Attorney General acknowledges that
an objection on Dueñas grounds was made, that as a result the forfeiture
doctrine is not applicable, and that Cowan’s attack on the restitution fine and




county jail.” (Bailey, supra, at p. 831.) But the record here shows no such
waiver. Although Cowan agreed to the 16-month hammer when he entered
his guilty plea, the transcript of that hearing does not show that Cowan was
advised he had a statutory right to receive no more than a 12-month county
jail term as a condition of probation, or that he knowingly and intelligently
waived that statutory right.
      In the related context of a waiver of custody credits under Penal Code
section 2900.5, our Supreme Court has stated: “The gravamen of whether
such a waiver is knowing and intelligent is whether the defendant
understood he was relinquishing or giving up custody credits to which he was
otherwise entitled under section 2900.5.” (People v. Arnold (2004) 33 Cal.4th
294, 308; see also People v. Sivongxxay (2017) 3 Cal.5th 151, 166 [criminal
defendant’s waiver of right to jury trial “ ‘may not be accepted by the court
unless it is knowing and intelligent, that is, “ ‘ “made with a full awareness
both of the nature of the right being abandoned and the consequences of the
decision to abandon it” ’ ” ’ ”].) There is no evidence here that Cowan
understood he was relinquishing or giving up a statutory right (the 12-month
limitation on county jail time that may be imposed as a condition of
probation) to which he was otherwise entitled.

                                       10
the assessments is cognizable on appeal. We must therefore address the
merits of this issue.
                             A. People v. Dueñas
      After little more than a year on the books, the facts and the issues at
stake in Dueñas are by now well known, but they bear repeating as
background before we proceed further. The case involved a homeless
probationer, Velia Dueñas, who suffered from cerebral palsy and was unable
to work. (Dueñas, supra, 30 Cal.App.5th at p. 1160.) Ms. Dueñas’s driver’s
license was suspended when she could not pay some juvenile citations she
received as a teenager. (Id. at p. 1161.) She was then convicted of a series of
misdemeanor offenses for driving with a suspended license, and in each case
was given the impossible choice whether to “pay” mandatory fees and fines—
which she could not do because of her poverty—or go to jail. (Ibid.) And after
serving jail time in the first three of these cases, she still faced outstanding
debt, which mounted with each conviction. (Ibid.)
      Upon her fourth conviction for driving with a suspended license,
Ms. Dueñas was placed on probation and again ordered to pay mandatory
assessments and fines. (Dueñas, supra, 30 Cal.App.5th at pp. 1161–1162.)
In an effort to put a stop to these spiraling fees and fines, Ms. Dueñas
objected, on due process and equal protection grounds, to a $40 Penal Code
section 1465.8 court operations assessment, a $30 Government Code section
70373 court facilities assessment, and a $150 Penal Code section 1202.4
restitution fine. (Dueñas, supra, at pp. 1163–1164.) The core of her theory
was that these statutes unconstitutionally “use the criminal law, which is
centrally concerned with identifying and punishing only blameworthy
decisions, to punish the blameless failure to pay by a person who cannot pay
because of her poverty. The laws, moreover, are irrational: They raise no


                                        11
money because people who cannot pay do not pay.” (Id. at p. 1164.) As one
sociological study put it, the laws’ function is akin to “[d]rawing [b]lood from
[s]tones.”2
      A Second District, Division Seven panel agreed. The panel held that
Government Code section 70373 and Penal Code section 1465.8—which are
silent on the issue of ability to pay—“if imposed without a determination that
the defendant is able to pay, are . . . fundamentally unfair” and that
“imposing these assessments upon indigent defendants without a
determination that they have the present ability to pay violates due process”
under the federal and state Constitutions. (Dueñas, supra, 30 Cal.App.5th at
p. 1168.) Treating the restitution fine separately, the panel held that
“although Penal Code section 1202.4 bars consideration of a defendant’s
ability to pay unless the judge is considering increasing the fee over the
statutory minimum, the execution of any restitution fine imposed under this
statute must be stayed unless and until the trial court holds an ability to pay
hearing and concludes that the defendant has the present ability to pay [it].”
(Id. at p. 1164.)
      While the Dueñas panel takes care to announce its holding in due
process terms,3 the foundation for its two-part disposition—a reversal of the
order imposing the assessments for failure to consider ability to pay, and a
stay of execution of the restitution fine pending an ability-to-pay hearing—

      2Harris et al., Drawing Blood from Stones: Legal Debt and Social
Inequality in the Contemporary United States (2010) 115 Am. J. Soc. 1753.
      3 Dueñas, supra, 30 Cal.App.5th at page 1171 (focus of due process
inquiry is whether “it is ‘fundamentally unfair’ to use the criminal justice
system to impose punitive burdens on probationers who have ‘made all
reasonable efforts to pay the fine or restitution, and yet cannot do so through
no fault of [their] own’ ”); id. at page 1167 (“[i]mposing unpayable fines on
indigent defendants is . . . unfair”).

                                       12
ultimately rests on a synthesis of due process and equal protection principles.
(See Griffin v. Illinois (1956) 351 U.S. 12, 17 (plur. opn. of Black, J.) (Griffin);
Bearden v. Georgia (1983) 461 U.S. 660, 665–667 (Bearden); In re Antazo
(1970) 3 Cal.3d 100, 107–109 (Antazo).) This blend of due process and equal
protection, described in Dueñas as “Griffin-Antazo-Bearden analysis”
(Dueñas, supra, 30 Cal.App.5th at p. 1168), “ ‘call[s] for procedures in
criminal trials which allow no invidious discriminations between persons and
different groups of persons’ ” (id. at p. 1166) and bars a state from “inflict[ing]
. . . punishment on indigent convicted criminal defendants solely on the basis
of their poverty.” (Ibid.)
      Applying Griffin-Antazo-Bearden analysis to the assessments and the
fine imposed on Ms. Dueñas, starting first with the assessments, the panel
begins from the premise that neither the court operations assessment nor the
court facilities assessment is “intended to be punitive in nature.” (Dueñas,
supra, 30 Cal.App.5th at p. 1165; see People v. Alford (2007) 42 Cal.4th 749,
757 (Alford) [Pen. Code, § 1465.8]; People v. Fleury (2010) 182 Cal.App.4th
1486, 1492–1494 [Gov. Code, § 70373].) But by loading these two nominally
non-punitive assessments on top of Ms. Dueñas’s sentence, along with the
“additional, potentially devastating” financial consequences to which they
exposed her, the governing statutes, in effect, “transform a funding
mechanism for the courts into additional punishment for a criminal
conviction for those unable to pay.” (Dueñas, supra, at p. 1168.) This, the
panel concludes, amounts to inflicting punishment solely because of an
indigent’s poverty. (Id. at pp. 1166–1168.)
      Central to the analysis in Dueñas is its reading of the statutory scheme
of which Government Code section 70373 and Penal Code section 1465.8 were
part. The court points out that these statutes were part of court funding


                                         13
legislation largely directed to the civil sphere. (Dueñas, supra,
30 Cal.App.5th at p. 1165.) While the Legislature authorized fee waivers as a
“protective mechanism [to] lessen[ ] the disproportionate burden that these
fundraising fees present to indigent litigants” (id. at p. 1166; see Gov. Code,
§ 68632, subds. (a)–(c)), it provided no such accommodation to criminal
defendants. (Dueñas, supra, at p. 1166.) Relying on Jameson v. Desta (2019)
5 Cal.5th 594, the Dueñas panel concludes that since assessments imposed
under these statutes are “part of a larger statutory scheme [designed] to raise
revenue to fund court operations, [they] should be treated no differently than
their civil counterparts enacted in the same legislation and imposed only on
those with the means to pay them.” (Dueñas, supra, at p. 1169.)
      The focus of the analysis for the restitution fine in Dueñas is slightly
different. There, the panel recognizes that restitution fines are punitive in
nature and may be imposed as a condition of probation. (Dueñas, supra,
30 Cal.App.5th at p. 1169; see People v. Hanson (2000) 23 Cal.4th 355, 363
(Hanson); Pen. Code, § 1202.4, subd. (m).) So instead of barring imposition
altogether, the panel stays execution until an ability-to-pay hearing is held.
(Dueñas, supra, at pp. 1164, 1172.) In doing so, the panel focuses on
disparities in treatment among defendants, comparing those who are able to
pay to those who are not. (Id. at p. 1170.) Because of the express statutory
prohibition on consideration of ability to pay at the time of imposition, and
because, unlike probationers who are able to pay their fines, indigent
probationers who are unable to pay will never be entitled to automatic
expungement of their convictions for successful completion of probation, the
panel concludes that “the criminal justice system punishes indigent
defendants in a way that it does not punish wealthy defendants.” (Ibid.) To
avoid an interpretation of the statute that would result in a constitutional


                                       14
violation, the Dueñas court ordered a stay pending an ability-to-pay hearing
at which the People will bear the burden. (Id. at pp. 1164, 1172.)
                           B. The Dueñas Critics
      We preface our analysis with a brief summary of a series of Court of
Appeal opinions over the last year taking the view that there is “no general
due process and equal protection authority which requires a court to conduct
a preassessment present ability-to-pay hearing” for fines, fees or assessments.
(People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke,
Acting P. J.) (Gutierrez).) These opinions, some issued by appellate panels
(People v. Hicks (2019) 40 Cal.App.5th 320, 322, review granted Nov. 26,
2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1060–
1061 (Aviles)), and others by individual justices writing separately,4 either
reject Dueñas outright or reject its reasoning while distinguishing it
factually.5 They criticize Dueñas for misreading Griffin, which they contend
applies only to financial barriers impeding access to courts (Hicks, supra, at
pp. 325–326; Aviles, supra, at pp. 1065, fn. 23, 1068), and for similarly
misreading the offspring of that opinion, Antazo, decided by our Supreme
Court, and Bearden, decided by the United States Supreme Court, each of
which they contend applies only to incarceration for failure to pay monetary




      4Gutierrez, supra, 35 Cal.App.5th at page 1034 (conc. opn. of Benke,
Acting P. J.); People v. Kopp (2019) 38 Cal.App.5th 47, 98 (conc. & dis. opn. of
Benke, Acting P. J.), review granted Nov. 13, 2019, S257844 (Kopp); People v.
Santos (2019) 38 Cal.App.5th 923, 936 (dis. opn. of Elia, J.) (Santos).
      5 People v. Caceres (2019) 39 Cal.App.5th 917, 926–929; see also People
v. Cota (2020) 45 Cal.App.5th 786, 794–795 (Cota); People v. Adams (2020)
44 Cal.App.5th 828, 831; People v. Lowery (2020) 43 Cal.App.5th 1046, 1049,
1054–1055; People v. Kingston (2019) 41 Cal.App.5th 272, 279–281.


                                       15
penalties. (Hicks, supra, at pp. 325–326; see Aviles, supra, at pp. 1065,
fn. 23, 1069.)6
      The majority opinion in Kopp is notable for its more nuanced critique of
Dueñas. The Kopp majority organizes its analysis around a distinction
between monetary charges imposed on convicted criminal defendants that
are punitive in nature and those that are not. Directing its attention only to
non-punitive assessments, Kopp agrees, “to some extent, with the court’s
conclusion in Dueñas that due process requires the trial court to conduct an
ability-to-pay hearing and ascertain a defendant’s ability to pay before it
imposes court facilities and court operations assessments under Penal Code
section 1465.8 and Government Code section 70373, if the defendant requests
such a hearing.” (Kopp, supra, 38 Cal.App.5th at p. 95.) Mindful that neither
of the two appellants involved there had been allowed to make a record as to
their financial condition, the court vacates and remands, but does so in a way
that sets a higher bar for defendants seeking to establish inability to pay
than Dueñas does. (Id. at pp. 95–96.) The Kopp court emphasizes that, on
remand, the appellants must bear the burden of proving inability to pay and
that the trial court could take into account not just present ability to pay at
the time of sentencing, but future ability to pay such as capability to earn
prison wages. (Id. at p. 96.)
      Moving on from this cautious embrace of Dueñas’s treatment of non-
punitive assessments, Kopp declines to follow the Dueñas panel’s approach to
punitive fines. (Kopp, supra, 38 Cal.App.5th at p. 96.) Consistent with the
reasoning in Aviles and Justice Benke’s concurrence in Gutierrez, Kopp holds

      6 See also Gutierrez, supra, 35 Cal.App.5th at pages 1038–1039 (conc.
opn. of Benke, Acting P. J.); Kopp, supra, 38 Cal.App.5th at page 99 (conc. &
dis. opn. of Benke, Acting P. J.); Santos, supra, 38 Cal.App.5th at pages 937–
938 (dis. opn. of Elia, J.).

                                       16
that punitive fines should be challenged under the excessive fines clauses of
the federal and state Constitutions. (Kopp, supra, at pp. 96–97.) Within the
framework of excessive fines protections, Kopp holds, punitive fines are
governed by a four-factor test for excessiveness under the Eighth Amendment
and under article I, section 17 of the state Constitution. (Kopp, supra, at
p. 97.) Of these four factors—the defendant’s culpability, the relationship
between the harm and the penalty, the penalties imposed in similar statutes,
and the defendant’s ability to pay—Kopp points out that Dueñas focuses on
only one, ability to pay. (Id. at pp. 97–98; see id. at p. 96.) The Kopp
majority therefore orders that, on remand, appellants, if they wish, could
challenge the fines imposed on them upon a consideration of all four relevant
factors. (Id. at pp. 56–57, 97–98 & fn. 25.)7
      The Attorney General’s treatment of Dueñas in this case essentially
adopts the stance of the Kopp majority, though he sees no need for a remand
since in his view any Dueñas error was harmless. He “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.” He also concedes that imposition of the
assessments “implicates due process” and states that “respondent does not
seek to uphold [them] . . . on those who have no ability to pay.” Neither the
$40 court operations assessment nor the $30 court facilities assessment is
punitive in nature, he points out. “Both were enacted to fund the operations
of the justice system. [Citations.] These [fees] by their own terms, are only


      7 The same court that decided Dueñas—Division Seven of the Second
District—recently issued an opinion in People v. Belloso (2019)
42 Cal.App.5th 647, 649, 656–662, review granted March 11, 2020, S259755,
adhering to its prior holding after considering and rejecting the various
criticisms leveled in Hicks and Aviles.

                                       17
imposed on those who seek access to the justice system and are convicted of a
crime.” But the Attorney General draws the line at “punishment in the form
of fines,” which he describes as “a cornerstone of our criminal justice system.”
Because restitution fines “advance[ ] the state’s legitimate interests in
punishing the guilty for their offenses,” the Attorney General contends that
“Dueñas was wrongly decided on that point and should not be followed.” 8




      8 We acknowledge, as did the Dueñas court (Dueñas, supra,
30 Cal.App.5th at p. 1164, fn. 1), that some significant legislative steps have
been taken to mitigate the harshness of the mandatory imposition of criminal
fees and fines. For example, “the Legislature [has] implemented several
mechanisms over the last decade to help individuals reduce the impacts of
their court-ordered debt.” (Judicial Council of Cal., Rep. on the Statewide
Collection of Delinquent Court-Ordered Debt for 2018–19, December 2019,
p. 2.) Among the most notable are “authoriz[ation of] two amnesty programs,
eliminat[ing] the provisions that required courts to place a hold or suspension
on a driver’s license for failure to pay traffic violations, increas[ing] the
awareness and availability of community service in lieu of cash payments for
fines, and encourag[ing] courts to develop procedures to determine an
individual’s ability to pay.” (Ibid.)
       Also, more recently, the Legislature passed Assembly Bill No. 927, a
bill providing that, for any “fine, fee, or assessment related to a criminal or
juvenile proceeding involving a misdemeanor or felony, prior to imposition,
the court shall make a finding, based on a contested hearing or on stipulation
of counsel, that the defendant or minor has the ability to pay.” (Assem. Bill
No. 927 (2019–2020 Reg. Sess.) § 1.) The Governor returned Assembly Bill
No. 927 without signature, stating his support for it but expressing the view
that, while “[w]e must tackle the issue of burdensome fines, fees and
assessments that disproportionately drag low-income individuals deeper into
debt and away from full participation in their communities[,] . . . I do not
believe that requiring a hearing on defendants’ ability to pay is the best
approach in every case.” (Governor’s veto message to Assem. on Assem. Bill
No. 927 (Oct. 9, 2019) Recess J. No. 14 (2019–2020 Reg. Sess.) p. 3651.)


                                       18
                                   C. Analysis
      “There is good reason to be concerned that fines, uniquely of all
      punishments, will be imposed in a measure out of accord with the
      penal goals of retribution and deterrence. . . . [Because] fines are a
      source of revenue . . . , it makes sense to scrutinize governmental
      action more closely when the State stands to benefit.”9
      While we do not join the courts that have declared Dueñas to have been
wrongly decided, we do agree with an insight put forward in some of the
opinions taking that position. A suitable framework for analyzing the
constitutionality of the restitution fine imposed here, as well as the
assessments, in our view, is the excessive fines prohibition in the Eighth
Amendment and its counterpart under the California Constitution, article I,
section 17. (E.g., Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of
Benke, Acting P. J.); Kopp, supra, 38 Cal.App.5th at p. 99 (conc. & dis. opn. of
Benke, Acting P. J.).)10 An excessive fines analysis “allows for a consistent
and fair review of fines and fees imposed on individuals [while they are
focused both legally and factually in the trial court], with the appeal process
remaining available for further review.” (Kopp, supra, at p. 100 (conc. & dis.
opn. of Benke, Acting P. J.).)11


      9 Harmelin v. Michigan (1991) 501 U.S. 957, 978, footnote 9 (lead opn.
of Scalia, J.).
      10The Eighth Amendment to the United States Constitution states:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” Article I, section 17 of the California
Constitution states: “Cruel or unusual punishment may not be inflicted or
excessive fines imposed.”
      11In his opening appellate brief, Cowan bases his challenge to the
assessments and the restitution fine primarily on due process principles as
outlined in Dueñas. But he also argues generally in his opening brief that,
under Dueñas, the imposition of these monetary sanctions violates the
excessive fines clause as well. Cowan states: “As discussed in Dueñas,

                                       19
      1. The Restitution Fine and the Assessments All Qualify as “Fines” for
         Purposes of the Eighth Amendment and Article I, Section 17 of the
         California Constitution
      Underlying the Attorney General’s position on Cowan’s ability-to-pay
objection is the implicit premise that the restitution fine is subject to scrutiny
as an Eighth Amendment “fine,” while the assessments are non-punitive and
therefore do not fall within the ambit of federal or state constitutional
prohibitions on excessive fines. We do not agree with that premise. Taking
the analysis a step further than that of the Kopp majority or Justice Benke in
her separate opinions in Gutierrez and Kopp, we believe that all of the
monetary exactions at issue here must be treated as punitive in nature and
thus may be analyzed as “fines” for purposes of the Eighth Amendment and
article I, section 17 of the California Constitution. (Aviles, supra,
39 Cal.App.5th at p. 1071; Cota, supra, 45 Cal.App.5th at pp. 800–801 (conc.
& dis. opn. of Dato, J.).)
      “ ‘[T]he method’ courts use to determine ‘what constitutes punishment
varies depending upon the context in which the question arises.’ ” (People v.
Ruiz (2018) 4 Cal.5th 1100, 1108, citing People v. Castellanos (1999)



imposition of the fines and fees challenged here, without a finding that the
defendant has the present ability to pay, constitutes a violation of due
process, equal protection and the right to be free from excessive fines under
the United States and California Constitutions.” (Italics added; citing
Timbs v. Indiana (2019) ___ U.S. ___ [139 S.Ct. 682] (Timbs).) We conclude
Cowan has adequately presented this issue on appeal. (See Dueñas, supra,
30 Cal.App.5th at p. 1171, fn. 8 [stating due process and excessive fines
analyses are similar]; Cota, supra, 45 Cal.App.5th at p. 799 (conc. & dis. opn.
of Dato, J.) [“the particular constitutional label [appellant] attaches to his
[inability-to-pay] argument is unimportant”]; cf. People v. Petri (2020)
45 Cal.App.5th 82, 87 [declining to review restitution fine under excessive
fines clause because defendant did not raise an Eighth Amendment challenge
in his opening brief on appeal].)

                                       20
21 Cal.4th 785, 795 (plur. opn. of George, C. J.) (Castellanos).) The
conventional approach, which applies in double jeopardy and ex post facto
cases, proceeds in two steps. (United States v. Ward (1980) 448 U.S. 242,
248–249 (Ward).) We look initially to “whether the Legislature intended the
provision to constitute punishment” and we go no further if that intent is
plain from the face of the statute or the legislative history. (Castellanos,
supra, at p. 795 (plur. opn. of George, C. J.); see Alford, supra, 42 Cal.4th at
p. 755.) If, on the other hand, “ ‘the intention was to enact a regulatory
scheme that is civil and nonpunitive,’ ” we look further to “ ‘whether the
statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the
State’s] intention’ to deem it ‘civil’ ” ’ ” (Alford, supra, at p. 755) under the
multifactor test in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168–
169 (Mendoza-Martinez), which sets forth seven “ ‘useful guideposts.’ ”
(Castellanos, supra, at p. 802 (conc. & dis. opn. of Kennard, J.).)12 Under this
approach, “ ‘we ordinarily defer to the legislature’s stated intent’ ”
(Castellanos, supra, at p. 795 (plur. opn. of George, C. J.)), and “ ‘ “only the
clearest proof” will suffice to override legislative intent and transform what
has been denominated a civil remedy into a criminal penalty.’ [Citations].”
(Id. at p. 802 (conc. & dis. opn. of Kennard, J.).)



      12 “Whether the sanction involves an affirmative disability or restraint,
whether it has historically been regarded as a punishment, whether it comes
into play only on a finding of scienter, whether its operation will promote the
traditional aims of punishment—retribution and deterrence, whether the
behavior to which it applies is already a crime, whether an alternative
purpose to which it may rationally be connected is assignable for it, and
whether it appears excessive in relation to the alternative purpose assigned
are all relevant to the inquiry[.]” (Mendoza-Martinez, supra, 372 U.S. at
pp. 168–169, fns. omitted; see Alford, supra, 42 Cal.4th at p. 757.)


                                         21
       If we were to apply this two-step Ward/Mendoza-Martinez analytical
paradigm, the Attorney General’s bifurcated analysis of the restitution fine
and the assessments might be warranted. Because the charge imposed under
Penal Code section 1202.4 is denominated a “fine” and is levied only on
convicted criminals, there would be no need to go beyond the face of the
statute to justify the conclusion that the Legislature intended restitution
fines to be punitive in nature.13 By contrast for the assessments, the phrases
“court operations assessment” and “court facilities assessment” signal an
intent to raise revenue for the courts, and the legislative history confirms
that objective.14 Even granting that there may be some ambiguity because
the assessments are imposed only on criminal convictions, we cannot say by
“ ‘ “the clearest proof” that “the [assessments are] so punitive either in
purpose or effect as to negate [the Legislature’s] intention” to deem [them]
“civil.” ’ ” (Castellanos, supra, 21 Cal.4th at p. 795 (plur. opn. of George,
C. J.).)
       But a different approach is called for in the context of excessive fines.
The Eighth Amendment’s “protection against excessive fines guards against
abuses of government’s punitive or criminal-law-enforcement authority,” and
applies to civil and criminal penalties alike. (Timbs, supra, ___ U.S. at p. ___
[139 S.Ct. at p. 686]; see Austin v. United States (1993) 509 U.S. 602, 610
(Austin).) Because monetary “sanctions frequently serve more than one



       13Hanson, supra, 23 Cal.4th at page 361 (for double jeopardy purposes
restitution fine imposed under Pen. Code, § 1202.4 is punitive).
        Alford, supra, 42 Cal.4th at pages 755–758 (for purposes of the
       14

prohibition on ex post facto laws court security fee imposed under Pen. Code,
§ 1465.8, subd. (a)(1) is not punitive); People v. Knightbent (2010)
186 Cal.App.4th 1105, 1111–1112 (same, relying on Alford; court facilities
assessment imposed under Gov. Code, § 70373, subd. (a)(1)).

                                        22
purpose” (ibid.) and have “multiple effects” (People v. Ruiz, supra, 4 Cal.5th
at p. 1108), Austin announced a test for identifying an Eighth Amendment
“fine” that is both simpler and broader than the more complex
Ward/Mendoza-Martinez approach. Under Austin, because “ ‘[t]he notion of
punishment . . . cuts across the division between the civil and the criminal
law,’ ” a monetary sanction that cannot “ ‘fairly be said solely to serve a
remedial purpose’ ” will be subject to scrutiny as an Eighth Amendment fine
if it “can only be explained as serving in part to punish.” (Austin, supra, at
p. 610, italics added; see People ex rel. State Air Resources Bd. v. Wilmshurst
(1999) 68 Cal.App.4th 1332, 1350 (Wilmshurst) [“[e]ven assuming a fine
serves some remedial purpose, it will be considered punishment [for purposes
of applying the Eighth Amendment] if it also serves either retributive or
deterrent purposes”].)
      While we accept the Attorney General’s view that the restitution fine
imposed under Penal Code section 1202.4 is punitive in nature, we do not
agree that the court facilities and court operations assessments are non-
punitive. “Whether fees and assessments imposed on convicted defendants
are sufficiently punitive to invoke the Eighth Amendment presents a closer
question [than whether a restitution fine is], but we must keep in mind that
the standard asks merely whether they are partially punitive.” (Cota, supra,
45 Cal.App.5th at p. 800 (conc. & dis. opn. of Dato, J.).) Even though the
Legislature’s court-funding objectives in enacting Government Code section
70373 and Penal Code section 1465.8 unmistakably point to a non-punitive
intent, we cannot say that assessments imposed under these statutes solely
serve a civil, remedial purpose. The nature of the proceeding in which a
sanction is rendered—criminal or civil—is a powerful indicator of the
sanction’s character. (In re Alva (2004) 33 Cal.4th 254, 272.) The


                                       23
assessments at issue here are imposed “on every conviction for a criminal
offense[.]” (Pen. Code, § 1465.8; Gov. Code, § 70373.) Because these
assessments are “conditioned on the commission of a crime” (Department of
Revenue of Montana v. Kurth Ranch (1994) 511 U.S. 767, 781), we think they
can only be explained as serving, in part, to punish. Accordingly, we conclude
that, under Austin, the assessments, as well as the restitution fine, must be
treated as “fines” for purposes of the excessive fines prohibitions in the
federal and state Constitutions.
      2. Ability to Pay Is an Important Consideration in Evaluating Whether
         These “Fines” Are “Excessive” Under the Excessive Fines Prohibitions
         of the Eighth Amendment and Article I, Section 17 of the California
         Constitution
      In evaluating excessiveness, the starting point for analysis—though not
the end of it—is United States v. Bajakajian (1998) 524 U.S. 321
(Bajakajian), where the United States Supreme Court announced an
excessiveness test that has been recognized by California courts as applicable
to both the federal and state excessive fines clauses. There, the high court
upheld a lower court’s refusal to impose a $357,144 forfeiture for the federal
offense of taking more than $10,000 in currency through customs without
reporting it. (Id. at p. 324.) Concluding that the amount of the forfeiture
sought by the government was grossly disproportionate to the gravity of the
offense and the harm that it caused, the court found that the amount of the
proposed forfeiture would violate the Eighth Amendment. (Bajakajian,
supra, at pp. 324, 337–340.)
      What is most salient about Bajakajian, in our view, is something the
Supreme Court did not address. In a footnote, the court left open the
question whether “wealth or income are relevant to the proportionality
determination” or whether a deprivation of one’s livelihood may bear on the
Eighth Amendment excessiveness analysis. (Bajakajian, supra, 524 U.S. at
                                       24
p. 340, fn. 15.) Federal circuit courts have divided on this question. Some
have held that ability to pay is relevant, either as part of a proportionality
inquiry (e.g., United States v. Viloski (2d Cir. 2016) 814 F.3d 104, 111
(Viloski))15 or in addition to it (United States v. Levesque (1st Cir. 2008)
546 F.3d 78, 83–85 (Levesque)). And others have held ability to pay has no
bearing on the Bajakajian analysis (e.g., United States v. Dubose (9th Cir.
1998) 146 F.3d 1141, 1145–1146),16 with most arriving at that conclusion in
the context of forfeiture orders, where the issue of ability to pay is often
irrelevant in any event because the issue there generally is confiscation of
identified assets rather than imposition of a monetary sanction.
      How the high court will resolve the relevance of ability to pay in Eighth
Amendment excessive fines analysis remains to be seen. Although we find
notable a passing observation in Timbs that the excessive fines clause traces
its “venerable lineage” back to the Magna Carta, which safeguarded the
“ ‘contenement’ ” of Englishmen and “required that economic sanctions . . .
‘not be so large as to deprive [an offender] of his livelihood’ ” (Timbs, supra,
___ U.S. at p. ___ [139 S.Ct. at pp. 687–688]),17 we need not take the


      15See also United States v. Lippert (8th Cir. 1998) 148 F.3d 974, 978
(Lippert).
       See also United States v. Smith (8th Cir. 2011) 656 F.3d 821, 827–
      16

828; United States v. Dicter (11th Cir. 1999) 198 F.3d 1284, 1292, footnote 11;
United States v. 817 N.E. 29th Drive, Wilton Manors, Fla. (11th Cir. 1999)
175 F.3d 1304, 1311.
      17 The court’s reference to the “contenement” of Englishmen and the
deprivation of livelihood is consistent with scholarly literature arguing that
the original meaning of the Eighth Amendment’s excessive fines clause
prohibits fines so severe as to deprive a defendant of his or her “contenement”
or livelihood, understood as the ability to secure the necessities of life. (See
McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive
Fines Clause (2013) 40 Hastings Const. L.Q. 833, 854–872.) As explained by

                                        25
discussion of this background point in Timbs as a prediction of what the high
court’s ultimate answer will be, for California courts have already held that
ability to pay is relevant to excessiveness, and they have done so in applying
both the Eighth Amendment and article I, section 17 of the California
Constitution. (Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707,
728 (Lockyer).)18
      At issue in Lockyer was a fine of $14,826,200 imposed on a tobacco
company, R.J. Reynolds, for giving out free cartons of cigarettes at various
public gatherings in violation of a statute prohibiting the “ ‘nonsale
distribution’ ” of cigarettes on public premises. (Lockyer, supra, 37 Cal.4th at
p. 712.) R.J. Reynolds attacked the fine as violative of the excessive fines
prohibitions in the federal and state Constitutions and argued that its
statutory violations were in good faith. (Id. at pp. 727–728.) In analyzing
whether good faith is relevant to the determination of whether a fine or
penalty is constitutionally excessive, the court concluded that it was not
necessary to undertake a separate due process analysis. (Id. at p. 728.) The
court held that this defense was cognizable, and remanded for the trial court




one commentator (who is cited extensively by the court in its historical
discussion of the excessive fines clause in Browning-Ferris Industries v. Kelco
Disposal, Inc. (1989) 492 U.S. 257, 269), “the great object” of provisions of the
Magna Carta limiting fines was that “[i]n no case could the offender be
pushed absolutely to the wall: his means of livelihood must be saved to him.”
(McKechnie, Magna Carta: A Commentary on the Great Charter of King
John (2d ed. 1914) p. 287; see also Massey, The Excessive Fines Clause and
Punitive Damages: Some Lessons from History (1987) 40 Vand. L.Rev. 1233,
1259–1260 & fn. 154.)
      18See also People v. Overstock.com, Inc. (2017) 12 Cal.App.5th 1064,
1091; City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302,
1322 (Sainez); Wilmshurst, supra, 68 Cal.App.4th at page 1350.

                                       26
“to determine whether defendant believed, in good faith, that its conduct
conformed” to the statute it was charged with violating. (Id. at p. 731.)
      The key here is not Lockyer’s precise holding on good faith, but its
reading of the test for excessiveness. Observing that article I, section 17 of
the California Constitution provides “similar protection[ ]” to the Eighth
Amendment’s excessive fines clause, the court centered its analysis on
Bajakajian, supra, 524 U.S. 321. It began with the overarching premise in
Bajakajian that “ ‘[t]he touchstone of the constitutional inquiry under the
Excessive Fines Clause is the principle of proportionality’ ” (Lockyer, supra,
37 Cal.4th at p. 728), and then went on to list the following four
considerations bearing on proportionality: “(1) the defendant’s culpability;
(2) the relationship between the harm and the penalty; (3) the penalties
imposed in similar statutes; and (4) the defendant’s ability to pay.” (Ibid.) Of
these factors, only the first three were at issue in Bajakajian. For the fourth
factor—ability to pay—the Lockyer court relied not only on Bajakajian, but
also on the Court of Appeal decision in Sainez, supra, 77 Cal.App.4th at
pages 1320–1322. (Lockyer, supra, at p. 728.) Notably, Sainez relied on
Lippert, supra, 148 F.3d 974, one of the federal circuit cases taking the more
expansive view that ability to pay is relevant to excessiveness under
Bajakajian. (Sainez, supra, 77 Cal.App.4th at p. 1322.)19
      It is apparent from Lockyer that California courts, borrowing from a
line of federal circuit cases, have adopted a broad reading of Bajakajian in



      19 Sainez was not the first California appellate opinion to adopt the
view that ability to pay is relevant to excessiveness under Bajakajian.
Wilmshurst—which the Sainez court cited—adopted that view as well, and it
too relied on federal circuit precedent in line with Viloski and Lippert. (See
Wilmshurst, supra, 68 Cal.App.4th at p. 1350, citing United States v. Hines
(8th Cir. 1996) 88 F.3d 661, 664 (Hines).)

                                       27
which ability to pay must be taken into account as a factor bearing on
proportionality. “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, [Cowan] should
be afforded a hearing at which he can attempt to make his case.” (Cota,
supra, 45 Cal.App.5th at p. 799 (conc. & dis. opn. of Dato, J.).) We think it is.
Because ability to pay is an element of the excessive fines calculus under both
the federal and state Constitutions, we conclude that a sentencing court may
not impose court operations or facilities assessments or restitution fines
without giving the defendant, on request, an opportunity to present evidence
and argument why such monetary exactions exceed his ability to pay.
      “Ordinarily a reviewing court, having examined the relevant
considerations, can decide for itself whether a fine or penalty is
unconstitutionally excessive” (Lockyer, supra, 37 Cal.4th at p. 731), but
where a defendant’s excessive fine objection raises factual questions, a
remand is required so that the trial court can make the necessary findings as
a predicate to the excessiveness determination and weigh the relevant factors
in the first instance. (Ibid.) Here, it must be borne in mind that
“[p]roportionality is likely to be the most important issue in a forfeiture case,
since the claimant-defendant is able to pay by forfeiting the disputed asset.”
(Hines, supra, 88 F.3d at p. 664.) “In imposing a fine, on the other hand,
ability to pay becomes a critical factor.” (Ibid.)20 Making an ability-to-pay


      20 Wilmshurst, supra, 68 Cal.App.4th 1332, applying this aspect of the
reasoning in Hines, holds that ability to pay stands on its own as an
excessiveness consideration, wholly outside of the proportionality framework
of Bajakajian. (Id. at p. 1350 [“The defendants’ concern with the relationship
between the amount of the fines and nature of their offenses or the amounts
of fines imposed in other cases is consequently irrelevant; it is their ability to

                                        28
record in the trial court need not entail a contested evidentiary hearing in
every case. It can often be done by simple offer of proof. But it must be done
where an excessive fines objection is interposed.
      3. Guidance on Remand
      In remanding, we add three final observations for the trial court’s
guidance.
      First, Dueñas speaks of “present ability to pay” (Dueñas, supra,
30 Cal.App.5th at p. 1164), but we agree with Kopp that the evaluation of
ability to pay must include future ability to pay. (Kopp, supra,
38 Cal.App.5th at p. 96.) That is more consistent with the statutory scheme.
(Pen. Code, § 1202.4, subd. (d) [“Consideration of a defendant’s inability to
pay” in setting the amount of the fine “may include his or her future earning
capacity”].) It is also more consistent with prior law. (People v. Kay (1973)
36 Cal.App.3d 759, 763.) The appropriate inquiry—aptly summarized in Kay
as whether a defendant is presently able to pay or has any reasonable
prospect of paying—must take into account the totality of Cowan’s financial
obligations in court-imposed debt. (Cf. People v. Castellanos (2009)
175 Cal.App.4th 1524, 1532 [construing Pen. Code, § 1202.5; ability-to-pay




pay which is the constitutional lodestar”].) While this doctrinal nuance
aligns with federal circuit-level authority on the point (see Levesque, supra,
546 F.3d at pp. 83–85), the treatment of ability to pay as an excessiveness
consideration outside of Bajakajian’s proportionality framework appears to
be inconsistent with Lockyer’s holding that ability to pay is but one among
several other proportionality factors under Bajakajian. Without going as far
as Wilmshurst or Levesque does on this fine (but important) point of doctrine,
we do agree that in cases involving fines or fees the relative weight to be
given ability to pay in the proportionality calculus is much more important
than it is in a forfeiture case.


                                       29
inquiry “includes . . . an evaluation of the totality of an accused’s financial
responsibilities”].)21
      Second, although Dueñas can be read to suggest that the People must
bear the burden of proving a defendant’s ability to pay a challenged
assessment or fine (Dueñas, supra, 30 Cal.App.5th at p. 1172), we agree with
the courts that have since held a defendant bears the burden of proof on that
issue. (Santos, supra, 38 Cal.App.5th at p. 934; Kopp, supra, 38 Cal.App.5th
at p. 96; People v. Castellano (2019) 33 Cal.App.5th 485, 490 [same division
that decided Dueñas holding that defendant must “in the first instance
contest . . . his or her ability to pay the [charges] to be imposed and at a
hearing present evidence of his or her inability to pay”].) Thus, on remand,
upon proper objection, the court must hold a hearing at which defendant will
have an opportunity to bear his burden of proof on the issue of ability to pay.
      Third, and finally, our analysis of the restitution fine as an excessive
fines matter leads us to a different disposition than the Dueñas court reached


      21  While the totality of a defendant’s financial responsibility in the
ability-to-pay inquiry on a restitution fine includes any direct victim
restitution that is ordered, we do not address whether direct victim
restitution orders themselves constitute “fines” for purposes of the Eighth
Amendment or article I, section 17 of the California Constitution. “Payment
of direct victim restitution”—which is constitutionally mandated by article I,
section 28, subdivision (b) of the California Constitution—“goes directly to
victims and compensates them for economic losses they have suffered because
of the defendant’s crime. [Citations.] Restitution fines are payable to the
state’s ‘Restitution Fund.’ [Citation.] ‘The purposes of the two kinds of
restitution are different. The imposition of a restitution fine is punishment.
[Citation.] The purpose of direct victim restitution, however, is to reimburse
the victim for economic losses caused by the defendant’s criminal conduct,
i.e., to make the victim reasonably whole. [Citations.] Secondary goals of
direct restitution include rehabilitation of the defendant and deterrence of
future criminality.’ [Citation.]” (People v. Allen (2019) 41 Cal.App.5th 312,
321.)

                                        30
with respect to mandatory minimum fines imposed under Penal Code section
1202.4, subdivision (b)(1). Under the holding in Dueñas these mandatory
minimum fines must continue to be imposed, subject to a stay of execution
where inability to pay is shown. (Dueñas, supra, 30 Cal.App.5th at p. 1172.)
But because the right to be free from excessive fines under the federal and
state Constitutions prohibits imposition of excessive fines, it would not be an
appropriate remedy in this case should an excessive fines determination be
made to allow imposition of a restitution fine subject to a stay. If, upon
remand, an excessive fines objection is made and upheld, the ruling will
amount to a determination that the clause in Penal Code section 1202.4,
subdivision (c) barring consideration of ability to pay—“[a] defendant’s
inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine”—is unconstitutional as applied, thus
prohibiting imposition of the fine altogether.
                             V. DISPOSITION
      The sentence to a 16-month term of incarceration is reversed. The
cause is remanded for further sentencing proceedings consistent with this
opinion. In all other respects, the judgment is affirmed.

                                                 STREETER, J.
WE CONCUR:

POLLAK, P. J.
TUCHER, J.




                                       31
STREETER, J., Concurring.
      While I concur in the lead opinion, I write separately to explain my
preference for an additional rationale and to make clear that I do not
subscribe to the view that People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas) was wrongly decided. If there is a shortcoming in Dueñas’s
reasoning, in my view, it is that the panel there chose to frame its analysis
exclusively in due process terms, without delving into other sources of
constitutional protection, and without considering the degree to which state
and federal law may diverge in these other areas. (Dueñas, supra, at
pp. 1168, fn. 4, 1171, fn. 8.)
      A recent concurrence and dissent by Justice Dato in People v. Cota
(2020) 45 Cal.App.5th 786 (Cota) prefigures the approach we take in this case
and raises some perceptive questions about the opinions that have rejected
Dueñas. I share the concerns he expresses and will try to pick up where he
left off, tackling some of the “doctrinal nuances” (id. at p. 801) I think make a
difference here. While I agree that fines and fees imposed in criminal cases
may be analyzed as an excessive fines matter, as do a number of leading
scholars who have written in the area,1 I do not agree that simply because an
excessive fines analysis is fitting, it must be applied in lieu of other sources of
constitutional protection—such as the right to equal protection or to due
process—as if we were bound to follow something akin to the statutory




      1See Colgan, The Excessive Fines Clause: Challenging the Modern
Debtors’ Prison (2018) 65 UCLA L.Rev. 2, 97–98 (Challenging the Modern
Debtors’ Prison); McLean, Livelihood, Ability to Pay, and the Original
Meaning of the Excessive Fines Clause (2013) 40 Hastings Const. L.Q. 833,
901.


                                         1
interpretation canon favoring the specific over the general. I know of no such
rule in constitutional adjudication.2
      Below, I analyze the additional sources of constitutional protection that
I think are implicated here, parsing them one by one. First, I address the
assessments as a matter of equal protection and due process under federal
law. I then turn to an analysis of the restitution fine together with the
assessments, applying principles of equal protection under the California
Constitution. Ultimately, although I agree that in dealing with the monetary
exactions before us the excessive fines clause of the Eighth Amendment and
its state law counterpart, article I, section 17 of the California Constitution,
provide a suitable framework for constitutional analysis, it is my view that



      2 The Attorney General suggests one with respect to the restitution
fine. On that issue, he contends the Eighth Amendment is exclusively
applicable, citing Graham v. Connor (1989) 490 U.S. 386, to support the idea.
I am not persuaded that Graham has any relevance here. That case arose
under title 42 United States Code section 1983 (section 1983) and involved a
damages claim for use of excessive force by a police officer during an arrest in
violation of the Fourth Amendment. At issue was the liability-creating
standard governing excessive force claims in that context. Because section
1983 is not itself the source of substantive rights, the high court concluded
that “[t]he validity of [a section 1983] claim must . . . be judged by reference
to the specific constitutional standard which governs that right, rather than
to some generalized ‘excessive force’ standard.” (Graham, supra, at p. 394;
see also Albright v. Oliver (1994) 510 U.S. 266, 273 (plur. opn. of
Rehnquist, C. J.) [“ ‘generalized notion of “substantive due process” ’ ”].) As
later explained in United States v. Lanier (1997) 520 U.S. 259, “Graham
simply requires that if a constitutional claim”—read in context, a claim for
damages—“is covered by a specific constitutional provision, such as the
Fourth or Eighth Amendment, the claim must be analyzed under the
standard appropriate to that specific provision, not under the rubric of
substantive due process.” (Id. at p. 272, fn. 7.) Suffice it to say this is not a
section 1983 case and we are not here called upon to invoke substantive due
process as the basis for a damages claim.


                                        2
the California equal protection guarantee is more suitable. In fact, I think
there are good reasons to base the holding here solely on state equal
protection grounds, and I would do so.
                              I. FEDERAL LAW
                             A. Equal Protection
      Government Code section 70373 and Penal Code section 1465.8 create,
in effect, “ ‘user’ fee[s]” levied only on those in the criminal justice system who
suffer convictions. (People v. Rivera (1998) 65 Cal.App.4th 705, 711.)
Because these fees are mandatory—allowing no opportunity for an indigent
defendant facing them to demonstrate that delinquency and its consequences
are unavoidable—I believe their imposition without consideration of ability to
pay violates the precept that “[t]here can be no equal justice” where the kind
of justice “a man gets depends on the amount of money he has.” (Griffin v.
Illinois (1956) 351 U.S. 12, 19 (plur. opn. of Black, J.) (Griffin).) The Hicks
court describes this principle as nothing more than a “sentiment.” (People v.
Hicks (2019) 40 Cal.App.5th 320, 328, review granted Nov. 26, 2019,
No. S258946 (Hicks).) I think it deserves more respect than that. Some
might say Justice Powell’s opinion in Regents of University of California v.
Bakke (1978) 438 U.S. 265 is the most influential modern equal protection
decision announced by plurality. I would say it is Justice Black’s opinion in
Griffin.
      Although the Dueñas opinion opens by invoking the broad principle of
Griffin, it immediately turns to a due process analysis, relying heavily on
Bearden v. Georgia (1983) 461 U.S. 660 (Bearden) and concluding that the
assessments imposed under Government Code section 70373 and Penal Code
section 1465.8 amount to “additional punishment.” (Dueñas, supra,
30 Cal.App.5th at p. 1168; see id. at pp. 1166–1169.) I agree that an analysis



                                         3
treating the assessments as punitive accords with Eighth Amendment
precedent—and produces essentially the same result, guaranteeing a right to
be heard on the issue of ability to pay, while barring rote imposition in every
case—but I would prefer to see us stay true to Griffin within its conventional
frame as an equal protection case, which is how our Supreme Court reads it.
(See People v. Reese (2017) 2 Cal.5th 660, 664–668.)
      The federal equal protection analysis here turns on two United States
Supreme Court cases, James v. Strange (1972) 407 U.S. 128 (James), and
Fuller v. Oregon (1974) 417 U.S. 40 (Fuller). James and Fuller, like Bearden,
descend from Griffin, but within a different branch of Griffin’s progeny. Both
involve so-called recoupment statutes under which criminal defendants for
whom counsel is appointed may be ordered to reimburse the cost of their
appointed counsel, with the reimbursement order then being enforceable as a
civil judgment.
      James arose under a recoupment statute in Kansas. The appellee
there, David Strange, was arrested and charged with a felony, appeared
before a magistrate, professed indigency, accepted appointed counsel,
ultimately pled guilty to a reduced charge, and was placed on probation.
(James, supra, 407 U.S. at p. 129.) The Kansas Judicial Administrator then
requested reimbursement under the recoupment statute in the amount of
$500 within 60 days, subject to entry of a civil judgment in that amount upon
failure to pay. (Ibid.) Strange attacked the statute as facially
unconstitutional, and a three-judge federal district court upheld the
challenge, finding it constituted an impermissible burden on the right to
counsel under Gideon v. Wainwright (1963) 372 U.S. 335 (Gideon). (James,
supra, at pp. 128–129.) The United States Supreme Court affirmed, but
chose to rule on equal protection grounds instead, citing Rinaldi v. Yeager



                                       4
(1966) 384 U.S. 305 (Rinaldi) (James, supra, at p. 140), which struck down a
statute authorizing recoupment from incarcerated indigent defendants of the
costs of appellate transcripts. (Id. at pp. 134–140.)
      Rinaldi is part of an extensive body of high court precedent applying
the equal justice principle of Griffin. The focus of attack in James was a
feature of the Kansas statute denying defendants facing recoupment the
benefit of an “array of protective exemptions Kansas has erected for other
civil judgment debtors, including restrictions on the amount of disposable
earnings subject to garnishment, protection of the debtor from wage
garnishment at times of severe personal or family sickness, and exemption
from attachment and execution on a debtor’s personal clothing, books, and
tools of trade.” (James, supra, 407 U.S. at p. 135.) The Supreme Court’s
opinion is not about ensuring meaningful access to a hearing on the merits—
which is what the three-judge district court focused upon, relying on Gideon
(James, supra, at p. 134; Strange v. James (D.Kan. 1971) 323 F.Supp. 1230,
1233–1234)—but unequal treatment of indigent criminal defendants
compared to other civil judgment debtors. (James, supra, at pp. 135–136.)
      Noting that the challenged statute applied to both convicted defendants
and acquitted defendants, the high court saw no rational basis for treating
either differently from other civil debtors. “The indigent defendant who is
found guilty is uniquely disadvantaged in terms of the practical operation of
the statute,” the Supreme Court found. (James, supra, 407 U.S. at p. 139.)
“A criminal conviction usually limits employment opportunities. This is
especially true where a prison sentence has been served. It is in the interest
of society and the State that such a defendant, upon satisfaction of the
criminal penalties imposed, be afforded a reasonable opportunity of
employment, rehabilitation and return to useful citizenship. There is limited



                                        5
incentive to seek legitimate employment when, after serving a sentence
during which interest has accumulated on the indebtedness for legal services,
the indigent knows that his wages will be garnished without the benefit of
any of the customary exemptions.” (Ibid.)
      The Supreme Court acknowledged the interests Kansas had in
defraying the burgeoning costs of funding publicly appointed counsel in an
era of expanding criminal dockets. “Such trends have heightened the burden
on public revenues, and recoupment laws reflect legislative efforts to recover
some of the added costs,” the court observed. (James, supra, 407 U.S. at
p. 141.) But despite the legitimacy of these interests, the court held that they
“are not thwarted by requiring more even treatment of indigent criminal
defendants with other classes of debtors . . . . State recoupment laws . . .
need not blight in such discriminatory fashion the hopes of indigents for self-
sufficiency and self-respect. The statute before us embodies elements of
punitiveness and discrimination which violate the rights of citizens to equal
treatment under the law.” (Id. at pp. 141–142.)
      James must be read together with Fuller, another recoupment case
decided two terms later. Fuller involved the state of Oregon’s recoupment
statute. The question in Fuller was “whether Oregon may constitutionally
require a person convicted of a criminal offense to repay to the State the costs
of providing him with effective representation of counsel, when he is indigent
at the time of the criminal proceedings but subsequently acquires the means
to bear the costs of his legal defense.” (Fuller, supra, 417 U.S. at p. 41.) Like
the appellee in James, Prince Eric Fuller, an indigent, was charged with a
felony, accepted publicly appointed counsel, entered a plea, and was placed
on probation. (Id. at pp. 41–42.) Under the Oregon recoupment statute, as in
Kansas, failure to pay reimbursement resulted in entry of a civil judgment,



                                        6
subjecting criminal defendants to civil collection along with other civil
judgment debtors. (Id. at p. 47.) The Oregon Court of Appeals distinguished
James, rejecting a challenge to the sentencing court’s authority to require
reimbursement as a condition of probation. (State v. Fuller (Or.Ct.App. 1973)
504 P.2d 1393, 1395.)
      The high court affirmed, citing key differences between the Oregon
statute and the Kansas statute. First, “[t]he convicted person from whom
recoupment is sought . . . retains all the exemptions accorded other judgment
debtors[.]” (Fuller, supra, 417 U.S. at p. 47.) Second, “the requirement of
repayment ‘is never mandatory.’ ” (Id. at p. 44.) Third, defendants facing
recoupment had the ability to argue against recoupment on the ground of
“ ‘manifest hardship’ ” to them or their immediate families. (Id. at pp. 45–
46.) Thus, the Supreme Court explained, “revocation of probation is not a
collection device used by the State to enforce debts to it, but is a sanction
imposed for ‘an intentional refusal to obey the order of the court[.]’ ” (Id. at
p. 48, fn. 9.) And “[s]ince an order to repay can be entered only when a
convicted person is financially able but unwilling to reimburse the State, the
constitutional invalidity found in James v. Strange simply does not exist.”
(Ibid.)
      Insofar as Cowan attacks the constitutionality of the court operations
and court facilities assessments, James controls this case. By their plain
terms and their legislative history, neither of the statutes under which these
assessments were imposed is intended to be punitive in nature, and outside
of the Eighth Amendment context they must be treated as non-punitive.
“Both were enacted as parts of more comprehensive legislation intended to
raise funds for California courts. Penal Code section 1465.8 was enacted in
2003 as part of a law that increased a number of court-related fees, including



                                        7
small claims court filing fees, civil litigation filing fees, civil motions fees, and
appellate filing fees; it also imposed new court fees, such as a fee for complex
litigation, probate filing fees, and a fee for certain court reporter services.
(Assem. Republican Bill Analysis of Assem. Bill No. 1759 (2003–2004 Reg.
Sess.).)” (Dueñas, supra, 30 Cal.App.5th at p. 1165.)
      “As its name suggests, equal protection of the laws assures that people
who are ‘ “similarly situated for purposes of [a] law” ’ are generally treated
similarly by the law. [Citation.] Thus, ‘ “[t]he first prerequisite to a
meritorious claim under the equal protection clause is a showing that the
state has adopted a classification that affects two or more similarly situated
groups in an unequal manner.” ’ ” (Vergara v. State of California (2016)
246 Cal.App.4th 619, 644 (Vergara).) Under the user fee scheme the Dueñas
court outlines, which broadly applies to civil and criminal litigants, all
litigants subject to these fees are similarly situated. But while the
Legislature “has recognized the deleterious impact of increased court fees on
indigent people” (Dueñas, supra, 30 Cal.App.5th at p. 1165; see Gov. Code,
§ 68630, subd. (a)), it has accommodated only indigent civil litigants with fee
waivers (Gov. Code, § 68631).
      By singling out criminal defendants from among all litigants who are
required to pay fees devoted to court funding and subjecting them, and them
alone, to harsher treatment, the California Legislature has created a
classification comparable to the one at issue in James. The same thing that
was said there may be said here. Despite the state’s considerable interest in
defraying court operations and court facilities costs, “[w]e see no need . . . [to]
blight in such discriminatory fashion the hopes of indigents for self-
sufficiency and self-respect.” (James, supra, 407 U.S. at pp. 141–142.) It is of
course true that holding only convicted persons automatically to account



                                          8
regardless of circumstances may be justified by their criminality, but that is
not the stated intent of the legislation. And even if in reality it was the
actual justification, that just shows “[t]he statute[s] before us embod[y]
elements of punitiveness and discrimination which violate the rights of
citizens to equal treatment under the law.” (Id. at p. 142.)
      Fuller draws a line that circumscribes revenue-raising in the form of
user fees imposed singularly on convicted criminal defendants. What saved
the cost recoupment statute there was (1) it was not mandatory; (2) it
accommodated for inability to pay; and (3) by recognizing the same
exemptions to civil collection against criminal debtors that civil debtors
enjoyed, it treated all debtors, both criminal and civil, equally. (Fuller,
supra, 417 U.S. at pp. 44–47.) None of that is true here. The “potentially
devastating consequences” inflicted by mandatory assessments on indigent
defendants “in effect transform a funding mechanism for the courts into
additional punishment for a criminal conviction for those unable to pay.”
(Dueñas, supra, 30 Cal.App.5th at p. 1168.)
      In People v. Amor (1974) 12 Cal.3d 20 (Amor), our Supreme Court
rejected a federal equal protection challenge to the California recoupment
statute, Penal Code section 987.8. It did so in reliance on Fuller (Amor,
supra, at p. 27), pointing out that recoupment is imposed only on those
determined to have the ability to pay (id. at p. 31). James cannot be
distinguished on that ground or any other ground found sufficient to save
Penal Code section 987.8 in Amor. I would therefore join the Dueñas panel in
concluding that the court facilities and court security assessments “should be
treated no differently than their civil counterparts enacted in the same
legislation and imposed only on those with the means to pay them.” (Dueñas,




                                        9
supra, 30 Cal.App.5th at pp. 1168–1169.) But under federal law, I would do
so explicitly on equal protection as well as due process grounds.
                               B. Due Process
      The key to the federal due process analysis—and, of course, the
centerpiece of the opinion in Dueñas—is Bearden, supra, 461 U.S. 660, a case
that requires a close reading because of its unique place in the evolution of
Griffin’s equal justice principle. Bearden involved a probation revocation for
failure to pay a fine and restitution. After observing that “[t]his Court has
long been sensitive to the treatment of indigents in our criminal justice
system” (Id. at p. 664), the Bearden court framed the issue to be decided there
as a matter of fairness, describing the question as “whether a sentencing
court can revoke a defendant’s probation for failure to pay the imposed fine
and restitution, absent evidence and findings that the defendant was
somehow responsible for the failure or that alternative forms of punishment
were inadequate.” (Id. at p. 665.) While acknowledging that a defendant
who willfully fails to pay a fine may be jailed, the high court held that
automatic revocation of probation—without inquiry into a defendant’s ability
to pay, or exploring alternatives short of incarceration for those unable to
pay—cannot survive constitutional scrutiny. (Id. at pp. 670–672.)
      Bearden cited Griffin as the genesis of the equal justice principle it
applied (Bearden, supra, 461 U.S. at pp. 664–665), which makes sense,
because for many years equal protection was the accepted mode of analysis in
cases following from Griffin, consistent with James. (See, e.g., Williams v.
Illinois (1970) 399 U.S. 235, 241–242 (Williams); Tate v. Short (1971)
401 U.S. 395; Rinaldi, supra, 384 U.S. at pp. 307–308, 310–311; Douglas v.




                                       10
California (1963) 372 U.S. 353, 355–357 (Douglas).)3 Indeed, the most direct
precursor to Bearden, the California Supreme Court’s decision in In re Antazo
(1970) 3 Cal.3d 100, held that jailing a defendant for inability to pay a fine
violated equal protection (id. at pp. 103–104) based on a long line of cases
that “consistently reaffirmed [Griffin’s] fundamental principle of equal
justice” (id. at p. 110). Bearden introduced a new approach, opting to place
its holding within an interest balancing framework that “emphasizes fairness
between the State and the individual dealing with the State.” (Ross v. Moffitt
(1974) 417 U.S. 600, 609; see Bearden, supra, at p. 665.)
      Drawing largely from a reading of Griffin proposed in a series of
separate opinions authored by Justice Harlan4 and adopted in Boddie v.


      3 See Williams, supra, 399 U.S. at page 244 (“We hold that the Equal
Protection Clause of the Fourteenth Amendment requires that the statutory
ceiling placed on imprisonment for any substantive offense be the same for all
defendants irrespective of their economic status”); Tate v. Short, supra,
401 U.S. at pages 397–398 (“We held [in Williams] that the Illinois statute as
applied to [the defendant there] worked an invidious discrimination solely
because he was too poor to pay the fine, and therefore violated the Equal
Protection Clause. [¶] Although the instant case involves offenses punishable
by fines only, petitioner’s imprisonment for nonpayment constitutes precisely
the same unconstitutional discrimination”); Rinaldi, supra, 384 U.S at
page 311 (“We may assume that a State can validly provide for recoupment of
the cost of appeals from those who later become financially able to pay. But
any such provision must, under the Equal Protection Clause, be applied with
an even hand”); Douglas, supra, 372 U.S. at page 355 (“We agree . . . with
Justice Traynor of the California Supreme Court who said that the ‘denial of
counsel for appeal [to an indigent] would seem to be a discrimination at least
as significant as that condemned in [Griffin]’ ”).
      4 Douglas, supra, 372 U.S. at page 363 (dis. opn. of Harlan, J.) (“The
real question in this case, I submit, and the only one that permits of
satisfactory analysis, is whether or not [a] state rule [denying appointment of
appellate counsel for indigents], as applied in this case, is consistent with the
requirements of fair procedure guaranteed by the Due Process Clause”); see


                                       11
Connecticut (1971) 401 U.S. 371, 382, the Bearden court explained, “[a] due
process approach has the advantage in this context of directly confronting the
intertwined question of the role that a defendant’s financial background can
play in determining an appropriate sentence. When the court is initially
considering what sentence to impose, a defendant’s level of financial
resources is a point on a spectrum rather than a classification. Since
indigency in this context is a relative term rather than a classification, fitting
‘the problem of this case into an equal protection framework is a task too
Procrustean to be rationally accomplished[.]’ [Citation.] The more
appropriate question is whether consideration of a defendant’s financial
background in setting or resetting a sentence is so arbitrary or unfair as to be
a denial of due process.” (Bearden, supra, 461 U.S. at p. 666, fn. 8.) This is
fundamentally a procedural due process test—an analytical approach which
characteristically features interest balancing—as confirmed by the fact that,
in support of it, the court cited leading procedural due process cases. 5
      Doctrinally, to be sure, the Bearden analysis has elements of both equal
protection and due process. To resolve the question presented there as a
matter of equal protection, the Bearden court explained, “one must determine
whether, and under what circumstances, a defendant’s indigent status may
be considered in the decision to revoke probation.” (Bearden, supra, 461 U.S.
at p. 666.) But because that amounts to the same thing as “asking directly
the due process question of whether and when it is fundamentally unfair or
arbitrary for the State to revoke probation when an indigent is unable to pay


also Griffin, supra, 351 U.S. at pages 29–39 (dis. opn. of Harlan, J.);
Williams, supra, 399 U.S. at pages 259–266 (conc. opn. of Harlan, J.).
      Bearden, supra, 461 U.S. at page 666, footnote 7 (citing Morrissey v.
      5

Brewer (1972) 408 U.S. 471; Gagnon v. Scarpelli (1973) 411 U.S. 778).



                                       12
[a] fine” (ibid.), the court announced a multifactor balancing test in which
“[d]ue process and equal protection principles converge.” (Id. at p. 665.)6
Instead of utilizing a traditional equal protection approach focused on
invidious discrimination against a suspect class or the traditional substantive
due process approach of identifying a burden on a fundamental right, the
court announced a new, hybrid test in the following terms: “the issue cannot
be resolved by resort to easy slogans or pigeonhole analysis, but rather
requires a careful inquiry into such factors as ‘the nature of the individual
interest affected, the extent to which it is affected, the rationality of the
connection between legislative means and purpose, [and] the existence of
alternative means for effectuating that purpose.’ ” (Bearden, supra,
at pp. 666–667, quoting Williams, supra, 399 U.S. at p. 260 (conc. opn. of
Harlan, J.).)7 Because it requires an ends-means inquiry and consideration of


      6 Cf. Smith v. Robbins (2000) 528 U.S. 259, 276 (“ ‘ “[t]he precise
rationale for the Griffin and Douglas lines of cases has never been explicitly
stated, some support being derived from the Equal Protection Clause of the
Fourteenth Amendment and some from the Due Process Clause of that
Amendment.” ’ [Citation.] But our case law reveals that, as a practical
matter, the two clauses largely converge to require that a State’s procedure
‘affor[d] adequate and effective appellate review to indigent defendants’ ”).
      7  Justice Marshall, who joined the Bearden opinion, long advocated a
similar kind of interest balancing approach in equal protection cases as a
clarifying alternative to what he viewed as the high court’s “rigidified” tiers of
scrutiny in traditional equal protection analysis. (San Antonio Indep. Sch.
Dist. v. Rodriguez (1973) 411 U.S. 1, 98–99 (dis. opn. of Marshall, J.)
(Rodriguez) [“A principled reading of what this Court has done reveals that it
has applied a spectrum of standards in reviewing discrimination allegedly
violative of the Equal Protection Clause. This spectrum clearly comprehends
variations in the degree of care with which the Court will scrutinize
particular classifications, depending, I believe, on the constitutional and
societal importance of the interest adversely affected and the recognized
invidiousness of the basis upon which the particular classification is drawn”];


                                        13
alternatives, the Bearden test calls for a form of heightened scrutiny—more
rigorous than rational basis, but less rigorous than strict scrutiny. Nothing
in the high court’s enunciation of the test suggests a limitation to
deprivations of physical freedom or impediments on access to court.
      To the extent this balancing test “wove together two distinct strands” of
precedent spawned by Griffin (Hicks, supra, 40 Cal.App.5th at p. 325), the
weaving was done in Bearden, not Dueñas. Applying it here, there can be no
real debate about the ends-means inquiry and the availability of means more
precisely fitted to the legislative objective of funding the courts. It is
irrational to impose a funding burden on litigants who are unable to pay, for
collection from them, by definition, is futile. The same legislative objective
can be achieved in a less costly way, since the cost of futile collection efforts
would be saved by screening out those who have no ability to pay. Certainly,
for those most needy, the first two Bearden factors weigh heavily; the
“nature” of the “individual interest affected” may include the potential loss of
shelter, transportation, food and clothing, and its “extent” (Bearden, supra,
461 U.S. at pp. 666–667) can be a lifetime of “cascading consequences”
(Dueñas, supra, 30 Cal.App.5th at p. 1163). Given the poor fit between
means and objectives, the determinative factor in the interest balancing
analysis is whether what the Dueñas court called the “potentially devastating
consequences” of imposing assessments on someone who is unable to pay (id.




Dandridge v. Williams (1970) 397 U.S. 471, 520–521 (dis. opn. of
Marshall, J.).) Depending on the “importance of the interests being affected
and the relevance of personal wealth to those interests” (Rodriguez, supra, at
p. 122 (dis. opn. of Marshall, J.)), Justice Marshall took the view that
“[p]ersonal poverty may entail much the same social stigma as historically
attached to certain racial or ethnic groups.” (Id. at p. 121.)


                                        14
at p. 1168) should be given any weight at all in evaluating the individual
interest.
      One of the main lines of criticism of Dueñas is that it went “beyond its
foundations” (Hicks, supra, 40 Cal.App.5th at p. 327) by applying Griffin
outside the context of jailing people for failure to pay fines or depriving them
of access to court. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039
(conc. opn. of Benke, Acting P. J.).) But that misreads Griffin, which
enunciates a simple equal protection principle (People v. Reese, supra,
2 Cal.5th at p. 665) that was long ago extended beyond the context of access
to justice, in both criminal and civil cases. (Jones v. Governor of Florida
(11th Cir. 2020) 950 F.3d 795, 818 [“whether sounding in equal protection or
due process, Griffin’s equality principle is straightforward: the state may not
treat criminal defendants more harshly on account of their poverty”].)
      Mayer v. City of Chicago (1971) 404 U.S. 189, for example, involved an
indigent defendant convicted on non-felony charges who received a fine for
each offense. (Id. at pp. 190–191.) He wished to appeal based on
prosecutorial misconduct and insufficient evidence, but could not do so
because the state provided free transcripts only for felony cases. (Ibid.) The
Mayer court rejected the city of Chicago’s effort to distinguish Griffin on the
ground that the defendant there was incarcerated. (Id. at p. 196.) Also
illustrative is James, supra, 407 U.S. at page 128, the defense fees
recoupment case discussed above. Neither incarceration nor access to justice
was at stake there. The case concerned, purely and simply, “squalid
discrimination” (Griffin, supra, 351 U.S. at p. 24 (conc. opn. of
Frankfurter, J.)) against indigent criminal defendants for no reason but their
poverty. (See Johnson v. Bredesen (6th Cir. 2010) 624 F.3d 742, 749
[recognizing that the James court was “concerned about discriminatory



                                       15
garnishment of the wages with which a debtor ‘supports himself and his
family’ ” and “found that the admittedly ‘legitimate’ interests of the state
paled in comparison to ‘the hopes of indigents for self-sufficiency and self-
respect’ ”].)
       Nor has the application of Griffin been strictly confined to the effects of
wealth-based discrimination within the criminal justice system. Courts have
been selective in their extension of Griffin in the civil context—just as they
have been selective in recognizing new “fundamental rights”—but its equal
justice principle has been applied in a number of settings where the
discriminatory injury at issue was a civil disability having nothing to do with
loss of physical liberty (see, e.g., Boddie v. Connecticut, supra, 401 U.S. 371
[right to seek divorce]; M.L.B. v. S.L.J. (1996) 519 U.S. 102 [right to defend
against termination of parental rights]) or access to justice (see, e.g., Harper
v. Virginia State Bd. of Elections (1966) 383 U.S. 663, 668 [relying on Griffin
in striking down poll taxes]; Serrano v. Priest (1971) 5 Cal.3d 584, 598, 602-
604, 608-609 (Serrano I) [relying on Griffin to support the holding that
wealth is a suspect classification, while recognizing education as a
fundamental interest]).
       Dueñas implicitly recognizes that the severity of civil burdens flowing
from the court-imposed criminal debt may trigger heightened scrutiny under
Griffin as a form of wealth discrimination. There is nothing particularly
novel about this reading of Griffin and its progeny. (E.g., Jones v. Governor
of Florida, supra, 950 F.3d at p. 809 [“heightened scrutiny applies in this case
because we are faced with a narrow exception to traditional rational basis
review: the creation of a wealth classification that punishes those genuinely
unable to pay fees, fines, and restitution more harshly than those able to
pay”].) In rejecting a broad reading of Griffin, the Hicks court suggests that,



                                        16
to give some defendants but not others relief for inability to pay amounts to a
form of “ ‘inverse discrimination’ ” (Hicks, supra, 40 Cal.App.5th at p. 327,
quoting Williams, supra, 399 U.S. at p. 244), but of course the point of
heightened scrutiny in equal protection analysis is to recognize and protect
against invidious discrimination. Those with the means to pay who are held
to that obligation, while others are not, suffer no such discrimination.
      The factual premises on which the Dueñas court relied have been well-
documented. What Hicks dismisses as “language found in . . . dicta” in
Rivera v. Orange Cnty. Probation Department (9th Cir. 2016) 832 F.3d 1103,
1112, footnote 7 (discussing the “debt trap” that court-imposed fees and fines
can lay for indigent populations) and People v. Neal (2018) 29 Cal.App.5th
820, 827–828 (describing how court-imposed debt creates a “significant
barrier for individuals seeking to rebuild their lives after a criminal
conviction”) (Hicks, supra, 40 Cal.App.5th at p. 328) is broadly supported by a
number of judicial opinions,8 reports from blue chip judicial reform study




      8E.g., Jones v. Governor of Florida, supra, 950 F.3d 795; Cain v. White
(5th Cir. 2019) 937 F.3d 446, 450; Commonwealth v. Henry (Mass. 2016)
55 N.E.3d 943, 950–951; State v. Blazina (Wash. 2015) 344 P.3d 680, 684;
People v. Love (Ill. 1997) 687 N.E.2d 32, 35–36; see Fernandes et al.,
Monetary Sanctions: A Review of Revenue Generation, Legal Challenges, and
Reform (2019) 15 Ann. Rev. L. & Soc. Sci. 397, 411.



                                       17
groups,9 publications from research centers at leading universities, 10 and a
rich field of published work by individual scholars in diverse fields, 11 all
focusing on a growing national trend in criminal courts of using fees and
assessments for court funding,12 and the recognized need to address the
disproportionate impact these charges have on low-income populations and
minority communities.13 “[O]ur Chief Justice underscored the urgency of this
issue in her 2019 State of the Judiciary address, stating that we ‘must ensure



      9 Commission on the Future of California’s Court System, Judicial
Branch of California, Report to the Chief Justice (2017) (Futures Commission
Report) Recommendation 2.3: Refine the Adjudication and Settlement of
Fines, Fees, and Assessments, pages 71–84; National Task Force on Fines,
Fees and Bail Practices, National Center for State Courts, Principles on
Fines, Fees and Bail Practices (Dec. 2017) <https://www.ncsc.org/~/media/
Files/PDF/Topics/Fines%20and%20Fees/Principles%201%2017%2019.ashx>
(accessed March 27, 2020); Beckett et al., Washington State Minority &
Justice Commission, The Assessment and Consequences of Legal Financial
Obligations in Washington State (Aug. 1, 2008) (Assessment & Consequences
of LFOs).
      10The Arthur Liman Center for Public Interest Law, Twenty-First
Annual Colloquium, Yale Law School, Who Pays? Fines, Fees, Bail, and the
Cost of Courts (April 5–6, 2018); Criminal Justice Program, Harvard Law
School, Confronting Criminal Justice Debt: A Guide for Policy Reform (2016).
      11E.g., Colgan, Fines, Fees and Forfeitures (2017) 18 Criminology,
Crim. Just. L. & Soc’y 22, 23 (Fines, Fees and Forfeitures) (summarizing
scholarship from “a variety of fields, including law, sociology, economics and
criminology”); Birckhead, The New Peonage (2015) 72 Wash. & Lee L.Rev.
1595, 1602–1605; Harris, A Pound of Flesh: Monetary Sanctions as
Punishment for the Poor (2010).
      12
           Cota, supra, 45 Cal.App.5th at page 796 (conc. & dis. opn. of Dato, J.).
       Futures Commission Report, supra, Appendix 2.3C: Recent
      13

Developments Regarding Fines and Fees, page 83, footnote 6 (quoting
September 2016 press release by Office of Justice Programs, United States
Department of Justice).



                                         18
. . . fines and fees no longer fall on those least able to afford them.’ [Citation.]
Echoing her concerns, the Administrative Director of California’s Judicial
Council has remarked that fines and fees create a ‘destitution pipeline.’ ”
(Cota, supra, 45 Cal.App.5th at p. 798 (conc. & dis. opn. of Dato, J.).) Our
Legislature has been focused upon this difficult set of issues for several
years.14 The issue at hand is not the wisdom or adequacy of the limited steps
the Legislature has taken so far to deal with it, but more narrowly whether
the imposition of mandatory assessments without an ability-to-pay
determination is constitutional.
      In addressing this issue, I accept some widely acknowledged realities.
In our complex scheme of criminal fees and fines, what may appear in
isolation to be tiny amounts are in fact just the foundation for the imposition
of much larger amounts. Thus, court-imposed debt, even in small amounts,
may threaten an indigent person’s means of subsistence 15 when penalties,
interest and collections costs flowing from default are considered. In addition
to blocking access to early probation termination and hindering eligibility for
expungement,16 delinquency on court-ordered debt may diminish prospects


      14Judicial Council of California, Report on the Statewide Collection of
Delinquent Court-Ordered Debt for 2018–2019 (Dec. 2019) (2019 Judicial
Council Delinquent Debt Report), page 2.
      15 Challenging the Modern Debtors’ Prison, supra, 65 UCLA L.Rev. at
page 10 (“[a]s one person struggling to pay explained, even ‘$10 doesn’t sound
like a lot, but it is a lot when you are living on $300 a month,’ ” quoting
Assessment & Consequences of LFOs, supra, p. 36).
      16Dueñas, supra, 30 Cal.App.5th at page 1171 (“In this statutory
scheme, . . . the wealthy defendant is offered an ultimate outcome that the
indigent one will never be able to obtain—the successful completion of all the
terms of probation and the resultant absolute right to relief from the
conviction, charges, penalties, and disabilities of the offense. At best,
indigent defendants who cannot pay their restitution fine can try to persuade


                                        19
for employment and housing,17 disqualify the debtor from government
benefits and professional licenses,18 put public housing out of reach,19 and
create incentives to obtain money by illegal means, thus working at cross-
purposes with the rehabilitative goals of criminal sentencing, probation, and
reentry.20 And because court-ordered debt is not subject to any statute of
limitations21 and not dischargeable in bankruptcy, 22 the consequences can
last a lifetime, effectively resulting in what amounts to perpetual
punishment. Velia Dueñas’s case provides a particularly vivid example of
these “cascading consequences.” (Dueñas, supra, 30 Cal.App.5th at p. 1163;
see id. at pp. 1161–1163.) I agree that the facts there may be considered
“extreme” (People v. Caceres (2019) 39 Cal.App.5th 917, 923), but I am not
convinced they are unusual, given the close association between crime,
mental illness, and chronic drug addiction.
      In light of these realities, I think the courts declaring Dueñas to have
been wrongly decided not only fail to appreciate the rigor of Bearden’s
balancing test, but adopt too narrow a conception of due process as its
procedural protections have been “worked out over many decades of
constitutional litigation.” (Randone v. Appellate Dept. of Superior Court
(1971) 5 Cal.3d 536, 548–549.) It requires no “alteration of principles of due


a trial court to exercise its discretion to grant them relief, despite their
failure to comply with all terms of probation”).
      17   Fines, Fees and Forfeitures, supra, at page 25.
      18   Ibid.
      19   Ibid.
      20   Ibid.
      21   Penal Code section 1214, subdivision (e)(1)–(2).
      22   Title 11 United States Code section 523(a)(7).



                                         20
process” (id. at p. 551) to conclude that, by putting at risk the only “means to
obtain essential food, clothing, housing, and medical care” an indigent may
have (Goldberg v. Kelly (1970) 397 U.S. 254, 264 (Goldberg)), the imposition
of unpayable court-funding assessments without considering ability to pay
exposes the person assessed to summary deprivation of property (i.e., money
demanded by the state that would otherwise be used to pay for that person’s
basic necessities of life).23
      According to the critics of Dueñas, whatever hardships might be
brought about by court-ordered debt are unfortunate, but not constitutionally
cognizable. The underlying premise is that Griffin and its progeny address
only deprivations of constitutionally fundamental rights. (See People v.
Santos (2019) 38 Cal.App.5th 923, 937–938 (dis. opn. of Elia, J.) [“Dueñas did
not involve the right to access the courts, the defendant’s liberty interests, or
any other fundamental right”].) But what these critics overlook is that there
is a fundamental right at stake here—the right to be free from
constitutionally excessive fines. (Timbs v. Indiana (2019) ___ U.S. ___



      23 Goldberg, supra, 397 U.S. at page 262, footnote 8 (citing Reich,
Individual Rights and Social Welfare: The Emerging Legal Issues (1965)
74 Yale L.J. 1245, 1255; Reich, The New Property (1964) 73 Yale L.J. 733).
My focus here is on federal due process standards, but it bears noting that as
a matter of due process under the California Constitution (Cal. Const., art. I,
§§ 7, subd. (a), 15), we eschew the question whether there is some entitlement
“that can be defined as ‘liberty’ or ‘property,’ ” and instead ask more broadly
“what procedural protections are constitutionally required in light of the
governmental and private interests at stake.” (People v. Ramirez (1979)
25 Cal.3d 260, 264 (plur. opn. of Mosk, J.) (Ramirez).) We do so because
“[t]he federal approach . . . undervalues the important due process interest in
recognizing the dignity and worth of the individual by treating him as an
equal, fully participating and responsible member of society” (id. at p. 267),
which is precisely what is at stake here on the private interest side of the
balance.


                                       21
[139 S.Ct. 682, 689] (Timbs).) Thus, even assuming it is correct that Bearden
applies only to deprivations so serious as to be deemed constitutionally
fundamental, we have a threatened deprivation of that magnitude here,
which triggers the Bearden test.
      Because all of the opinions criticizing the due process analysis in
Dueñas dismiss the burdens of unpayable debt as constitutionally
insignificant, none of them actually carries out the weighing process required
by Bearden. The Hicks court does, however, provide a sketch of the
competing interests before declaring the proper balance to be a matter for the
legislative domain. It acknowledges, on the one hand, the importance of fair
and evenhanded treatment of “criminal defendants, many of whom are people
of little or no means,” and, on the other, the state’s interest in generating
revenue to “help defray the costs of operating the court system” and for
programmatic victim restitution. (Hicks, supra, 40 Cal.App.5th at p. 328.)
According to the Hicks court, the holding in Dueñas grants a form of
“immunity,” which not only “relieves the indigent probationer of any duty to
make any effort to repay his debts and thereby rehabilitate himself” (Hicks,
supra, 40 Cal.App.5th at pp. 327–328), but “is . . . inconsistent with the
operation of probation,” since probation “typically lasts a number of years . . .
and thus gives probationers a significant period of time to repay their
financial obligations” by their bona fide efforts or a change in their
circumstances. (Ibid.)
      Respectfully, I fail to see how Dueñas grants an “immunity.” The rule
laid down there requires an individualized showing of indigency. Correctly
understood and applied, this is not an automatic exemption. It applies only
to a sub-population of indigent criminal defendants who we know are certain
to default the moment an assessment is imposed, with a perpetual cycle of



                                       22
ever mounting, unescapable debt to follow. These defendants have no ability
to demonstrate their rehabilitation through financial accountability; no
ability to contribute anything to court funding; and no reasonable prospects
for any change in circumstance. For them, like Sisyphus, extended time to
pay means only condemnation to a task that can never be achieved. The
odious history of debt peonage in this country may seem foreign to us—it is
associated with race discrimination and economic oppression in other states,
in a bygone era—but before looking the other way here, we should consider
the echoes of that regime in our system of criminal justice “user fees.”
      While Government Code section 70373 and Penal Code section 1465.8
are silent on the issue of whether a court must consider a defendant’s ability
to pay, the Dueñas court reads these provisions to require it for those who,
through no fault of their own, face unpayable assessments. Normally, courts
“may not make a silent statute speak by inserting language the Legislature
did not put in the legislation” (Yeager v. Blue Cross of California (2009)
175 Cal.App.4th 1098, 1103), but I do not share the view that Dueñas rewrote
Government Code section 70373 and Penal Code section 1465.8 “by judicial
fiat.” (People v. Gutierrez, supra, 35 Cal.App.5th at p. 1038 (conc. opn. of
Benke, Acting P. J.).) There is a substantial constitutional question here, at
least. Whether Dueñas’s holding with respect to the assessment statutes is
read to rest on constitutional grounds (violation of due process) or on
statutory grounds (the statutes must be read in pari materia with civil fee
imposition statutes affording in forma pauperis relief to indigents),24 I believe


      24The concluding citation in the assessments section of the Dueñas
opinion to Jameson v. Desta (2018) 5 Cal.5th 594, 622, a statutory
interpretation case (id. at p. 599), suggests the latter. (Dueñas, supra,
30 Cal.App.5th at p. 1169.)



                                       23
its conclusion is right either way—as a federal constitutional matter under
Bearden, or as a statutory matter under the rule that, where possible, we
interpret statutes to preserve their constitutionality.25 Certainly, I see no
need to reject the Attorney General’s concession on the point. Coming from
the chief law enforcement officer in the state, that concession deserves
respectful consideration in our constitutional calculus. 26
                                II. STATE LAW
      Although in my view, the assessments at issue in this case do not
survive constitutional scrutiny under either the federal equal protection or
due process clauses, the restitution fine is another matter. I do not doubt
that, if evaluated under rational basis review, the imposition of a mandatory
minimum restitution fine under Penal Code section 1202.4 on all convicted
criminal defendants, without consideration of ability to pay, is
constitutionally valid and enforceable. Where any rationally conceivable
justification will suffice, the state is free to “use[ ] a shotgun instead of a rifle
to accomplish its legitimate end.” (Johnson v. Bredesen, supra, 624 F.3d at
p. 748.) Bearden interest balancing presents a closer question, but in the
end, because the burden remains with the challenger under that more


      25California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575,
594; see Syrek v. California Unemployment Ins. Appeals Bd. (1960) 54 Cal.2d
519, 526 (“ ‘The power of a court to declare a statute unconstitutional is an
ultimate power; its use should be avoided if a reasonable statutory
construction makes the use unnecessary,’ ” citing Ashwander v. Tennessee
Valley Authority (1936) 297 U.S. 288, 346 (conc. opn. of Brandeis, J.)).
      26Cf. D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 15–16
(accepting concession by the Attorney General made in the course of
discharging his “paramount duty to represent the public interest” on the
ultimate “constitutional fact” that the challenged enactment bore no rational
relationship to its legislative objective).



                                         24
exacting test, I think the state must still prevail. There may be some
overbreadth in the statute, but it serves an important penological purpose,
even if some defendants are so poor that they lack the ability to respond to
the rehabilitative objective of the fine by paying it. Regardless of any given
individual defendant’s ability to pay, the imposition of an automatic fine
across the board—with no exceptions—sends a deterrent and retributive
message. The Legislature enjoys the prerogative of weighing the importance
of sending such a message in absolute, unqualified terms.27 This is, in


      27 Assuming rational basis review or Bearden interest balancing
applies, that is a sufficient justification to uphold the validity of Penal Code
section 1202.4. To illustrate another type of policy concern specific to
restitution fines that should properly be weighed by the Legislature, not the
courts, as a counterbalance to any concern for imposing unpayable debt on
indigents, the Hicks court suggests that the holding in Dueñas “significantly
undercuts the statewide Restitution Fund (§ 1202.4, subd. (e)),” and thus
potentially calls into question the state’s ability “to continue providing some
measure of restitution and solace to . . . crime victims[.]” (Hicks, supra,
40 Cal.App.5th at p. 329.)
       I see no need to venture into any of this for a justification. Worthy as
the point is in the abstract, its premise is flawed when the scheme for
distributing revenues generated by criminal fines and fees is taken into
account. Total criminal fines and fees collected every year are distributed to
over 50 state funds (including the statewide restitution fund) in addition to
many local funds. (Legislative Analyst’s Office Report, Improving
California’s Criminal Fine and Fee System (Jan. 2016) p. 8.) The revenue
sources for these funds are governed by a complex formula for distribution
among the funds (id. at pp. 8–10), and within that distribution formula
victim restitution has first priority (id. at p. 12, figure 6; see also Legislative
Analyst’s Office Report, Restructuring the Court-Ordered Debt Collection
Process (Nov. 2014) pp. 8, 12, figure 5). Because of this favored status, it does
not follow that for every dollar in reduced restitution fine revenue resulting
from consideration of inability to pay, there will be a reduction in revenue
going to the restitution fund, much less one that would “significantly
undercut[ ]” the fund. (Hicks, supra, 40 Cal.App.5th at p. 329.)



                                        25
essence, the point of view advanced by the Attorney General, and I do not
disagree with him, at least as a federal constitutional matter.
      But it is here, I think, that California’s state equal protection
guarantee—which is broader than its federal counterpart—makes a crucial
difference. It is well established that our state charter is a document of
“independent force.” (People v. Buza (2018) 4 Cal.5th 658, 684; Raven v.
Deukmejian (1990) 52 Cal.3d 336, 352; see also Serrano v. Priest (1976)
18 Cal.3d 728, 764 (Serrano II).) My preference would be to address and
resolve all of the constitutional issues presented here—with regard to the
assessments as well as the restitution fine—as an equal protection matter
under article I, section 7, and article IV, section 16 of the California
Constitution. We in the California judiciary have a long history of taking
independent steps on pressing issues of the day, most commonly in
discrimination cases.28 The deeper inquiry into California constitutional law


       I grant the possibility, to be sure, that this supposition about
undercutting the victim restitution fund is the kind of “ ‘ “ ‘rational
speculation’ ” ’ ” that might suffice to justify a discriminatory legislative
classification under the rational basis test. (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 881.) While I am inclined to think it fails to meet even
that test because it “completely ignore[s]” the “realities of the subject matter”
(ibid.), I do think that, at the very least, the issue illustrates the importance
of who bears the burden of proof.
      28  In addition to Serrano II, supra, 18 Cal.3d 728, see In re Marriage
Cases (2008) 43 Cal.4th 757, 837–838 (same-sex marriage); Perez v. Sharp
(1948) 32 Cal.2d 711, 715–718 (plur. opn. of Traynor, J.) (interracial
marriage); People v. Wheeler (1978) 22 Cal.3d 258, 284–286 (racially
motivated peremptory challenges in jury selection); see also Ramirez, supra,
25 Cal.3d at pages 264–269 (plur. opn. of Mosk, J.) (procedural due process;
eligibility for drug rehabilitation treatment rather than imprisonment);
People v. Brisendine (1975) 13 Cal.3d 528, 548–551 (search and seizure; scope
of search incident to arrest); People v. Cahan (1955) 44 Cal.2d 434, 447–451
(search and seizure; exclusionary rule).


                                        26
not only probes directly into what is at issue—the disparate impact of these
assessments and fines on the poor (see People v. Santos, supra,
38 Cal.App.5th at p. 939 (dis. opn. of Elia, J.))—but at the same time elevates
the standard of review to strict scrutiny, thus answering one of the principal
criticisms of Dueñas. (See People v. Lowery (2020) 43 Cal.App.5th 1046,
1057, fn. 15 [Dueñas “neither articulated what fundamental liberty interest
was at stake nor set forth a standard of review”].)
      Where strict scrutiny applies, “ ‘ “ ‘ “the state bears the burden of
establishing not only that it has a compelling interest which justifies the law
but that the distinctions drawn by the law are necessary to further its
purpose.” ’ ” ’ ” (In re Marriage Cases, supra, 43 Cal.4th at p. 832, italics in
original; see Serrano II, supra, 18 Cal.3d at p. 761.) This heightened
standard of review applies “when the ‘distinction drawn by a statute rests
upon a so-called “suspect classification” or impinges upon a fundamental
right.’ ” (Vergara, supra, 246 Cal.App.4th at p. 645.) Essentially adopting
the dissenting view in Rodriguez (see, ante, fn. 7; Rodriguez, supra, 411 U.S.
at pp. 98–99 (dis. opn. of Marshall, J.)), the Serrano II court held that under
the California Constitution, wealth is a suspect classification for equal
protection purposes when combined with infringement of a fundamental
right. (Serrano II, supra, at p. 768; Serrano I, supra, 5 Cal.3d at pp. 597–
598.)29


      29  Notably, in recognizing wealth as a suspect class, Serrano I relied on
Griffin (Serrano I, supra, 5 Cal.3d at p. 604 [wealth classifications have been
previously recognized in cases involving the “rights of defendants in criminal
cases”]), while Rodriguez distinguished it (Rodriguez, supra, 411 U.S. at
pp. 20–21; see also id. at p. 25 [rejecting claim that a cognizable class of
“ ‘poor’ people” can be defined for equal protection purposes since poverty
exists “along a continuum”]; Bearden, supra, 461 U.S. at p. 666, fn. 8 [“a


                                        27
      We have both in this case. Penal Code section 1202.4, on its face,
discriminates based on poverty. Subdivision (b) of that section provides that,
“[i]n every case where a person is convicted of a crime, the court shall impose
a separate and additional fine, unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record.” And under
subdivision (c), a defendant’s “[i]nability to pay may be considered . . . in
increasing the amount of the restitution fine in excess of the minimum.” 30
My particular concern is the caveat in subdivision (c) providing that inability
to pay “shall not be considered a compelling and extraordinary reason not to
impose a restitution fine.” By that caveat, the Legislature has expressly
withdrawn a defense to the imposition of a minimum fine for the only group
of people who need it—those lacking the ability to pay. Thus, it discriminates
based on impecuniousness not merely by disparate impact, but on its face.
      The assessment statutes, Government Code section 70373 and Penal
Code section 1465.8, may also be analyzed under article I, section 7 and
article IV, section 16 of the California Constitution. Under our state equal
protection guarantee, laws that “ ‘ “discriminate explicitly between groups of
people,” ’ ” as well as laws that, “ ‘ “though evenhanded on their face, in
operation have a disproportionate impact on certain groups,” ’ ” are subject to
equal protection scrutiny. (Vergara, supra, 246 Cal.App.4th at p. 644.) The
two assessment statutes at issue apply in the same way to rich and poor alike
and thus are facially neutral. But at bottom, the problem Dueñas spotlights
is the sheer arbitrariness of imposing court-funding assessments on convicted


defendant’s level of financial resources is a point on a spectrum rather than a
classification”]).
      The fine must be set in a range from a minimum of $300 to a
      30

maximum of $10,000, for a felony, and a range of $150 to $1,000, for a
misdemeanor. (Pen. Code, § 1202.4, subd. (b)(1).)


                                        28
criminal defendants without inquiring into ability to pay, which has the effect
of adding punishment for some defendants depending on the accident of their
relative poverty. The disparate impact on those who cannot pay is, in my
view, cognizable as a matter of equal protection under state equal protection
principles.
      “[T]o me, singling out the poor to bear a burden not placed on any other
class of citizens tramples the values that the Fourteenth Amendment was
designed to protect.” (James v. Valtierra (1971) 402 U.S. 137, 145 (dis. opn. of
Marshall, J.).)31 In a closely divided five to four decision, the United States
Supreme Court turned away from this point of view as a matter of federal
law in Rodriguez, supra, 411 U.S. at pages 18–29, but the California Supreme
Court embraced it as a matter of state law in Serrano II, supra, 18 Cal.3d at
pages 761–766. While the textbook version of equal protection law that is
taught to this day in law schools nationwide takes Rodriguez as settled
doctrine, which is correct and understandable for courses taught from the
standpoint of national law, it is not often remembered that Serrano II
charted a different course under the California Constitution. We would break
no new ground in applying Serrano II here.
      In that pivotal case, our Supreme Court—squarely faced with the
choice of following Rodriguez in lockstep under the California Constitution—
chose its own path after giving “ ‘respectful consideration’ ” (People v. Buza,
supra, 4 Cal.5th at p. 684) to the then-recent opinion in Rodriguez. “[T]he
fact that a majority of the United States Supreme Court [chose] . . . to
contract the area of active and critical analysis under the strict scrutiny test
for federal constitutional purposes can have no effect upon the existing


       See Foner, The Second Founding: How the Civil War and
      31

Reconstruction Remade the Constitution (2019) page 78.


                                       29
construction and application afforded our own constitutional provisions” in a
wealth discrimination case where fundamental interests are at stake, the
court declared. (Serrano II, supra, 18 Cal.3d at p. 765.) So far as I know,
that remains the law in our state. Until otherwise instructed by the
California Supreme Court, I see no reason to confine Serrano II to its facts or
to depart from the principle of law announced in that case, which is
essentially the Griffin equal justice principle applied in the context of
fundamental civil rights.
      I have already identified the fundamental civil right at stake here—the
right to be free from excessive fines. To determine whether an individual
right or interest is so firmly rooted under California law as to be recognized
as fundamental, we must look first to “the treatment afforded particular
rights and interests by the provisions of our state Constitution,” a
consideration that must be “accorded significant consideration,” though not
“conclusive weight.” (Serrano II, supra, 18 Cal.3d at p. 768, fn. 48.) Under
article I, section 17 of the California Constitution, “Cruel or unusual
punishment may not be inflicted or excessive fines imposed.” Even more
significantly, as noted above, in Timbs, supra, ___ U.S. at p. ___ [139 S.Ct. at
p. 689], the United States Supreme Court recently found the excessive fines
clause of the Eighth Amendment to be so “ ‘fundamental to our scheme of
ordered liberty’ ” that it warrants application to the states through the due
process clause of the Fourteenth Amendment.
      Recognizing that we are dealing with wealth-based discrimination and
that the discrimination affects a fundamental right, the question becomes
whether the failure to inquire into ability to pay burdens this right in a
manner that triggers strict scrutiny. Or, to frame the issue more specifically
in the language of California fundamental rights cases, does Penal Code



                                       30
section 1202.4 have a “real and appreciable impact on” the right or
“significantly interfere[ ] with” it? (Vannier v. Superior Court (1982)
32 Cal.3d 163, 171 (Vannier).) This is a different question than whether it is
possible to say, on this record, the right has been violated. “When a statutory
classification impinges a fundamental right (and does not involve a suspect
classification), strict scrutiny will apply unless the effect on the fundamental
right is merely ‘incidental,’ ‘marginal,’ or ‘minimal.’ ” (Vergara, supra,
246 Cal.App.4th at p. 645.)
      As the lead opinion explains, because the right to be free from
excessive fines applies at the moment a fine is imposed, the conclusion seems
to me unavoidable that all three of the challenged statutes at issue here have
a “real and appreciable impact” (Vannier, supra, 32 Cal.3d at p. 171) on the
ability of indigent defendants to assert this fundamental right. (Vergara,
supra, 246 Cal.App.4th at p. 640.) That is because, for the right to provide
meaningful protection, an ability-to-pay inquiry must take place and an
adequate record must be made before an assessment or fine is imposed. To
bar a sentencing court from taking ability to pay into account in imposing the
fine creates an obstacle to asserting the right to avoid its imposition. The
question of excessiveness cannot be meaningfully evaluated in the trial court
or on appeal unless the defendant has a right to object and make a record on
the issue of ability to pay, before suffering the assessment or fine.
      At the final, strict scrutiny step in the analysis, the state bears the
heavy burden of demonstrating that the challenged infringement of a
fundamental right is justified by a compelling state interest and may not be
carried out any other way. (In re Marriage Cases, supra, 43 Cal.4th at p. 832;
Serrano II, supra, 18 Cal.3d at p. 761.) The Attorney General has not
attempted to meet that burden, other than to suggest that the imposition of



                                       31
mandatory minimum fines under Penal Code section 1202.4 serves to punish,
in addition to promoting rehabilitation and deterrence. True enough, but
since all defendants are permitted to interpose inability-to-pay objections as a
basis to argue against the amount of a restitution fine above the minimum, I
see no compelling reason why the same objection may not be made available
to defendants who wish to argue against the imposition of a minimum fine on
that basis, without sacrificing any clarity of purpose or significantly
undermining the effectiveness of the state’s penological objectives.
                             III. CONCLUSION
      “Criminal fines and fees in California are among the highest in the
country.”32 The inability of many defendants “to satisfy court-ordered debt is
reflected in the large amount of outstanding debt and the courts’ inability to
collect it”33—total delinquencies stood at $10.581 billion as of fiscal year-end
2019,34 of which $1.32 billion has been written off as uncollectible since
201235—and the disparate impact of these massive delinquencies on low-
income populations and minority communities has been acknowledged as a
matter of concern by the Chief Justice of California, by the Administrative
Director of our Judicial Council, as well as by the United States Department
of Justice.36

      32   Futures Commission Report, supra, page 71.
      33   Id. at page 75.
       2019 Judicial Council Delinquent Debt Report, supra, chart 6:
      34

Outstanding Court-Ordered Debt 2008–09 through 2018–19, page 8.
       Id. at chart 5: Outstanding Balance Discharged from Accountability
      35

2012–13 through 2018–19, page 7.
      36Cota, supra, 45 Cal.App.5th at p. 798 (conc. & dis. opn. of Dato, J.);
2019 Judicial Council Delinquent Debt Report, page 2; Futures Commission
Report, supra, Appendix 2.3C: Recent Developments Regarding Fines and
Fees, page 83 and footnote 6.


                                       32
      Against this backdrop, it is tempting to dismiss the relatively small
amounts of court-imposed debt in this case as de minimis, but we should bear
in mind that while the specific amounts at issue are small, the size of a single
fine or fee is not an accurate indicator of its impact within a given case or on
a given defendant. Under our complex system of criminal fines and fees,
which has been aptly likened to the tax code (People v. Castellanos (2009)
175 Cal.App.4th 1524, 1533 (conc. opn. of Kriegler, J.)), what may appear at
first blush to be small financial charges are often, in practice, simply the
foundational blocks on which additional layers of mandatory penalty
assessments are imposed, resulting in debt that can easily run into the
thousands of dollars before default charges begin to mount.
      Because this system of criminal fines and fees—with its enormous
overhang of uncollectible debt—presents fairness and equity issues that are,
in many respects, peculiar to our state, I believe we should look to the
California Constitution as the fulcrum of analysis here, building from federal
standards but without yoking ourselves to them.37 Proceeding solely under
state law, I would adopt the lead opinion’s excessive fines analysis and reach
the same disposition it does, while placing that analysis within the overall



      37 E.g., Ramirez, supra, 25 Cal.3d at page 265 (plur. opn. of Mosk, J.)
(setting forth due process standards under article I, section 7, subdivision (a),
and section 15 of the California Constitution in an analysis beginning with
United States Supreme Court cases decided under counterpart federal
standards but concluding that “[t]he reasoning of such cases . . . requires
some refinement in order to determine the appropriate standards for
invoking the state [due process] clauses”); see Sutton, 51 Imperfect Solutions:
States and the Making of American Constitutional Law (2018) pages 174–190
(making the case for “judicial federalism” as a mode of constitutional decision
making in which state courts make greater use of their own state
constitutions than they traditionally have done).



                                       33
framework of California’s equal protection guarantee. To date, excessive
fines objections have been entertained in published California appellate cases
only in the civil context and only in commercial litigation, generally for
corporate entities.38 I suspect no one would dispute that the right to be free
from excessive fines should be available to natural persons as well. The
equal protection guarantee, as we understand and apply it in California,
makes clear that it extends to all persons, rich and poor alike.
      Regardless of the mode of analysis, however, the bottom line for me is
this: We, and our colleagues in Dueñas, using different analytical
approaches, have recognized a constitutionally compelled “safety net” that is
available to a sub-population of indigent criminal defendants who, through
no fault of their own, face monetary sanctions they will never be able to pay.
Imposing such sanctions without the “safety net” we have recognized, as I see
it, is a form of mindless cruelty comparable to the treatment of Josef K. in
Kafka’s The Trial. I cannot accept the view that we are powerless to address
it, whether proceeding under the excessive fines analysis set out in the lead
opinion, a federal equal protection or federal due process analysis, or
preferably—looking to the California Constitution—through the framework
of equal protection under state law, while folding an excessive fines analysis
within it.
                                                  STREETER, J.




      38Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707; People v.
Overstock.com, Inc. (2017) 12 Cal.App.5th 1064; People ex rel. State Air
Resources Bd. v. Wilmshurst (1999) 68 Cal.App.4th 1332; City and County of
San Francisco v. Sainez (2000) 77 Cal.App.4th 1302; cf. Adams v. Murakami
(1991) 54 Cal.3d 105 (civil award of punitive damages may not be sustained
absent proof of defendant’s financial condition).

                                       34
Trial Court:             City & County of San Francisco Superior Court

Trial Judge:             Hon. Ethan Schulman

Counsel for Appellant:   Theresa Osterman Stevenson,
                         by appointment of the First District Court of Appeal
                         under the First District Appellate Project

Counsel for Respondent: Xavier Becerra, Attorney General
                        Jeffrey M. Laurence, Sr. Asst. Attorney General
                        René A. Chacón, Supervising Deputy Attorney General
                        Bruce Ortega, Deputy Attorney General




People v. Cowan (A156253)
