Filed 11/26/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                       DIVISION SEVEN


THE PEOPLE,                        B290968

       Plaintiff and Respondent,   (Los Angeles County
                                   Super. Ct. No. VA147067)
       v.

JUAN LUIS BELLOSO,

       Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael A. Cowell, Judge. Affirmed; remanded
with instructions.
      Dawn S. Mortazavi, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.

                        _________________
       Juan Luis Belloso appeals from a judgment entered after
the jury convicted him of carrying a concealed dirk or dagger
(Pen. Code,1 § 21310). Belloso contends there is insufficient
evidence to establish his stainless steel knife with a four-inch
fixed blade was a dirk or dagger. Belloso also contends the trial
court violated his rights to due process and equal protection
under the Fourteenth Amendment by failing to consider his
ability to pay before imposing court assessments and restitution
fines, relying on this court’s opinion in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).2
       We recognize there is a split in authority as to whether
Dueñas was correctly decided. Although several Courts of Appeal
have adopted our due process analysis, others have concluded
Dueñas was wrongly decided or that an Eighth Amendment
analysis under the excessive fines clause is doctrinally preferable.
We find unpersuasive the analyses of the courts that have
disagreed with Dueñas, as exemplified by the two most recent
cases rejecting this court’s due process analysis, People v. Hicks
(2019) 40 Cal.App.5th 320, 326 (Hicks) and People v. Aviles (2019)
39 Cal.App.5th 1055, 1061 (Aviles). The Supreme Court is now
poised to resolve this split in authority, having granted review in
People v. Kopp (2019) 38 Cal.App.5th 47, 95-96 (Kopp), review



1       Further undesignated statutory references are to the Penal
Code.
2      Belloso also contends the abstract of judgment incorrectly
reflects Belloso was convicted after a plea, not by a jury.
However, on September 28, 2018 the trial court corrected the
abstract of judgment at the request of Belloso’s appellate counsel.




                                 2
granted November 13, 2019, S257844,3 which applied the Dueñas
due process analysis to imposition of the court assessments and
an Eighth Amendment analysis to the restitution fines. We
reaffirm this court’s holding in Dueñas. We also disagree an
excessive fines analysis under the Eighth Amendment is
preferable or would lead to a different result. We remand for the
trial court to allow Belloso to request a hearing and present
evidence demonstrating his inability to pay the court
assessments and fines imposed by the court. We otherwise
affirm.

      FACTUAL AND PROCEDURAL BACKGROUND

A.     The Information
       The information charged Belloso with carrying a concealed
dirk or dagger in violation of section 21310. The information
alleged Belloso suffered three prior convictions of a violent or
serious felony under the three strikes law (§§ 667, subds. (b)-(j),
1170.12), including a 1995 conviction of assault in violation of
section 245, subdivision (a)(1), and 2013 convictions of assault in
violation of section 245, subdivision (a)(1), and making a criminal
threat in violation of section 422. The information also alleged
five prior felony convictions for which Belloso served separate
prison terms within the meaning of section 667.5, subdivision (b).


3     The Supreme Court granted review of Kopp limited to the
following issues: “Must a court consider a defendant’s ability to
pay before imposing or executing fines, fees, and assessments? If
so, which party bears the burden of proof regarding defendant’s
inability to pay?”




                                 3
      Belloso pleaded not guilty and denied the special
allegations.

B.     The Evidence at Trial
       On the evening of February 20, 2018 Los Angeles County
Sheriff’s Deputy Scott Simpkins and his partner were on patrol in
an unmarked black SUV in the City of Lakewood. Deputy
Simpkins was driving northbound on Woodruff Avenue when he
observed Belloso about 50 feet away walking in the same
direction on the sidewalk. The area was illuminated well by
street lights and lights from the surrounding buildings.
According to Deputy Simpkins, Belloso “was walking very ridged,
kind of very upright. He was very rapid in his movements and he
was constantly turning around, looking around nervously. There
was [nobody] else around him.”
       Deputy Simpkins pulled the SUV alongside the curb,
within 15 feet of Belloso. As the vehicle came to a stop, Belloso
reached into his front right pocket with his right hand and pulled
out a long, fixed-bladed knife. Belloso held the knife with his
right hand, keeping it low by his side. As Deputy Simpkins
exited his vehicle and approached, Belloso dropped the knife,
stepped to the side, and got down on his knees. Deputy Simpkins
detained Belloso. Belloso stated he was carrying the knife
because he was not from the area and was “sketched out.”
Deputy Simpkins interpreted this to mean Belloso had the knife
for protection. Deputy Simpkins recovered the knife from the
ground and booked it into evidence.
       Deputy Simpkins brought the knife in an envelope to court
to show the jury. The knife was covered by a piece of thick paper,
secured by rubber bands. Deputy Simpkins explained, “It’s




                                4
wrapped like this so the person does not cut themselves.” He
described the knife as a stainless steel knife, measuring eight to
nine inches, with a four- to four-and-a-half-inch fixed blade,
which could not be folded. The jury was shown a photograph of
the knife taken by Deputy Simpkins as part of the booking
process.4 The photograph shows the blade is curved on one side
and straight on the other, with a pointed tip on the end.
      Belloso did not call any witnesses.

C.     The Verdict and Sentencing
       The jury found Belloso guilty of carrying a dirk or dagger,
in violation of section 21310. On the day of sentencing, Belloso
admitted the special allegation he suffered a 2013 conviction of
making a criminal threat under section 422, which was a violent
or serious felony conviction under the three strikes law. Belloso
also admitted the special allegation he suffered five prior felony
convictions for which he served separate prison terms within the
meaning of section 667.5, subdivision (b). The trial court
accepted the pleas and found the special allegations were true.
At Belloso’s request, the court struck the allegations of the 1995
prior strike conviction and the five prison priors.5

4     The trial court later admitted the photograph into evidence.
5      Belloso did not admit the special allegation his 1995
assault conviction was of a violent or serious felony under the
three strikes law. The record does not reflect whether Belloso’s
1995 conviction was of an assault with a deadly weapon or by
force likely to produce great bodily injury, only the former of
which is a violent or serious felony under the three strikes law.
(See § 1192.7, subd. (c)(31) [assault with a deadly weapon listed
as serious felony].) Nor did Belloso admit the alleged 2013




                                 5
      The trial court sentenced Belloso to an aggregate term of
six years, comprised of the upper term of three years (§§ 21310 &
1170, subd. (h)(1)) doubled under the three strikes law. The court
imposed a $30 court facilities assessment (Gov. Code, § 70373,
subd. (a)(1)) and a $40 court operations assessment (Pen. Code,
§ 1465.8, subd. (a)(1)). The court also imposed the statutory
minimum restitution fine of $300 (§ 1202.4, subd. (b)(1)), and it
imposed and suspended a parole revocation restitution fine in the
same amount (§ 1202.45). Belloso did not object to imposition of
the assessments and fines or raise his inability to pay.
      Belloso timely appealed.

                         DISCUSSION

A.    Substantial Evidence Supports Belloso’s Conviction of
      Carrying a Concealed Dirk or Dagger
      1.    Standard of review
      “In evaluating a claim regarding the sufficiency of the
evidence, we review the record ‘in the light most favorable to the


conviction of assault with a deadly weapon (§ 245, subd. (a)(1)).
On our own motion we augment the record to include the
June 27, 2018 minute order. (Cal. Rules of Court, rule
8.155(a)(1)(A).) The June 27 minute order states Belloso “admits
the [sections] 1170.12 and 667[, subdivisions] (b)-(i) Penal Code
allegations which the court finds to be true.” On remand the trial
court should correct the minute order to reflect Belloso only
admitted the allegation he was convicted of a violent or serious
felony under the three strikes law with respect to the 2013
conviction of making a criminal threat, not the 1995 or 2013
assault convictions.




                                 6
judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’” (People v.
Westerfield (2019) 6 Cal.5th 632, 713; accord, People v. Penunuri
(2018) 5 Cal.5th 126, 142 [“‘To assess the evidence’s sufficiency,
we review the whole record to determine whether any rational
trier of fact could have found the essential elements of the crime
or special circumstances beyond a reasonable doubt.’”].) “‘The
standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.’ [Citations.] ‘We
presume in support of the judgment the existence of every fact
the trier of fact reasonably could infer from the evidence.
[Citation.] If the circumstances reasonably justify the trier of
fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled
with a contrary finding.’” (Westerfield, at p. 713; accord,
Penunuri, at p. 142 [“‘A reversal for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support’” the
jury’s verdict.’”].)

      2.     Substantial evidence supports the jury’s finding
             Belloso’s knife was a dirk or dagger
       “[S]ection 21310 makes it a criminal offense to carry
‘concealed upon the person any dirk or dagger.’” (People v.
Castillolopez (2016) 63 Cal.4th 322, 327; see § 21310 [“any person
in this state who carries concealed upon the person any dirk or
dagger” commits a criminal offense punishable as a felony or
misdemeanor].) Section 16470 defines a dirk or dagger as “a




                                 7
knife or other instrument with or without a handguard that is
capable of ready use as a stabbing weapon that may inflict great
bodily injury or death.”
       “[T]he legislative history is clear and unequivocal: the
intent to use the concealed instrument as a stabbing instrument
is not an element of the crime of carrying a concealed dirk or
dagger.” (People v. Rubalcava (2000) 23 Cal.4th 322, 331; accord,
Stark v. Superior Court (2011) 52 Cal.4th 368, 394-395.)
However, a defendant must know the concealed instrument could
readily be used as a stabbing weapon. (Rubalcava, at p. 332
[“[T]o commit the offense, a defendant must still have the
requisite guilty mind: that is, the defendant must knowingly and
intentionally carry concealed upon his or her person an
instrument ‘that is capable of ready use as stabbing weapon.’”];
see CALCRIM No. 2501 [“To prove that the defendant is guilty of
this crime, the People must prove that: [¶] . . . [¶] 4. The
defendant knew that it could readily be used as a stabbing
weapon.”].) Whether a knife is a dirk or dagger is a question of
fact for the jury to determine. (People v. Bain (1971) 5 Cal.3d
839, 851; People v. Wharton (1992) 5 Cal.App.4th 72, 76
(Wharton).)
       Belloso contends there is insufficient evidence to support
the jury’s finding his knife was a dirk or dagger. He admits
Deputy Simpkins testified the stainless steel knife had a four-
inch fixed blade and was wrapped in paper to prevent it from
cutting someone. But Belloso argues Deputy Simpkins did not
testify about the characteristics of the knife, including whether it
was sharp or dull; whether it had a pointed or rounded edge; or
whether the fixed blade was rigid or flexible. He also claims the
photograph did not show these characteristics. Further, Belloso




                                 8
asserts the fact the knife was wrapped during trial to prevent it
from cutting someone did not mean the knife had the ability to
cause great bodily injury or death.
       Contrary to Belloso’s contentions, substantial evidence
supported the jury’s finding the knife could readily be used as a
stabbing weapon. The jury observed the knife at trial, and the
photograph of the knife was admitted into evidence. Deputy
Simpkins testified the stainless steel knife measured eight to
nine inches long, with a four- to four-and-a-half-inch fixed blade.
The knife’s blade could not be folded, unlike a pocket knife. The
photograph of the knife showed it had a sharp point. Deputy
Simpkins explained the knife was wrapped in paper to prevent
cuts from handling the knife. The jury could have reasonably
inferred from Deputy Simpkins’s testimony the knife was sharp;
otherwise, it would not have posed a risk of cutting someone. In
addition, Deputy Simpkins testified Belloso was carrying the
knife for protection, in light of Belloso’s comments he was
carrying the knife because he was “sketched out” and not from
the area. The jury could have reasonably inferred Belloso would
not have carried a dull, rounded-tip knife for protection.
       The evidence the knife was stainless steel, with a fixed
four-inch blade, a sharpened edge, and pointed tip, and it was
carried by Belloso for protection, support the jury’s finding the
knife was “capable of ready use as a stabbing weapon that may
inflict great bodily injury or death.” (§ 16470; see Wharton,
supra, 5 Cal.App.4th at p. 76 [knife with three-and-a-half-inch
blade that was rigid, sharpened on both sides, and had a sharp
point was dirk or dagger]; In re Quintus W. (1981) 120 Cal.App.3d
640, 642, 645 (Quintus W.) [steak knife with four-and-five-
eighths-inch blade was dirk or dagger]; People v. Ferguson (1970)




                                9
7 Cal.App.3d 13, 18-19 (Ferguson) [kitchen knife with eight-inch
blade, one cutting edge, and a point was dirk or dagger]; cf.
People v. Barrios (1992) 7 Cal.App.4th 501, 506 (Barrios) [bread
knife was not dirk or dagger because the knife’s four-inch blade
had “one dull serrated edge and one blunt edge,” with a rounded
modest tip only on the serrated edge, and the blade flexed when
the point was applied to an object].)6

B.    Belloso Is Entitled to a Hearing on His Ability To Pay the
      Assessments and Fines
      Belloso requests we remand the case for the trial court to
conduct an ability-to-pay hearing in accordance with this court’s
opinion in Dueñas because he was indigent at the time of
sentencing. We agree Belloso should have an opportunity on
remand to request a hearing and present evidence demonstrating
his inability to pay the assessments and the statutory minimum
restitution and parole revocation fines.




6      Wharton, Quintus W., Ferguson, and Barrios were decided
before the 1993 and 1995 amendments to former section 12020,
now codified at section 16470, which provided a statutory
definition of a dirk or dagger to clarify that a knife qualified as a
dirk or dagger regardless of whether it had a handguard or the
defendant intended to use it as a stabbing weapon. (People v.
Castillolopez, supra, 63 Cal.4th at p. 328; People v. Rubalcava,
supra, 23 Cal.4th at p. 330.) This change in the law does not
affect our analysis.




                                 10
      1.     Imposition of the assessments and fines violated
             Belloso’s due process rights
       In Dueñas, supra, 30 Cal.App.5th at page 1168, this court
concluded “the assessment provisions of Government Code
section 70373 and Penal Code section 1465.8, if imposed without
a determination that the defendant is able to pay, are . . .
fundamentally unfair; imposing these assessments upon indigent
defendants without a determination that they have the present
ability to pay violates due process under both the United States
Constitution and the California Constitution.” As this court
noted, the court assessments, which must be imposed on every
criminal conviction, were enacted as part of legislation to raise
funds for California courts, not to impose punishment on the
defendant. (Dueñas, at pp. 1164-1165.)
       In contrast to the assessments, a restitution fine under
section 1202.4, subdivision (b), “is intended to be, and is
recognized as, additional punishment for a crime.” (Dueñas,
supra, 30 Cal.App.5th at pp. 1165, 1169.) Section 1202.4,
subdivision (c), provides a defendant’s inability to pay may not be
considered a “compelling and extraordinary reason” not to impose
the restitution fine; rather, inability to pay may be considered
only when increasing the amount of the restitution fine above the
minimum required by statute.
       As this court held in Dueñas, to avoid the serious
constitutional question raised by imposition of the restitution
fines on an indigent defendant, “although the trial court is
required by . . . section 1202.4 to impose a restitution fine, the
court must stay the execution of the fine until and unless the
People demonstrate that the defendant has the ability to pay the
fine.” (Dueñas, supra, 30 Cal.App.5th at p. 1172.) Otherwise,




                                11
unpaid restitution fines would later be enforceable as a civil
judgment, which could be collected by the State as an offset
against any amount a state agency owes a defendant, including
tax refunds. (Id. at pp. 1169-1170.) Further, a defendant
granted probation who does not have the ability to pay the
restitution fine would be unable to fulfill the conditions of
probation, and as a result, “through no fault of his or her own he
or she [would be] categorically barred from earning the right to
have his or her charges dropped and to relief from the penalties
and disabilities of the offense for which he or she has been on
probation, no matter how completely he or she complies with
every other condition of his or her probation.” (Id. at pp. 1170-
1171, citing § 1203.4, subd. (a)(1).)
       Although several Courts of Appeal have applied this court’s
analysis in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th
923, 929-934 [following Dueñas and declining to find forfeiture]);
Kopp, supra, 38 Cal.App.5th at pp. 95-96 [applying Dueñas to
court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028,
1030-1035 [following Dueñas but concluding error was
harmless]), others have rejected the due process analysis (e.g.,
People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; Hicks,
supra, 40 Cal.App.5th at p. 326), or concluded the imposition of
fines and fees should be analyzed under the excessive fines clause
of the Eighth Amendment (e.g., Aviles, supra, 39 Cal.App.5th at
p. 1061; Kopp, at pp. 96-97 [applying excessive fines analysis to
restitution fines]). Although there is some variation in how the
Courts of Appeal have approached Dueñas, we focus our
discussion on the more extensive analyses in Hicks and Aviles.
We find their reasoning unpersuasive and affirm this court’s due
process analysis in Dueñas.




                               12
            a.     Imposing fines and assessments on indigent
                   defendants violates due process
      In Hicks, Division Two of this district analyzed the
precedent this court relied on in Dueñas as two separate due
process strands, finding neither supported the conclusion that
imposition of fines and assessments upon an indigent defendant
without an ability-to-pay determination violated his or her due
process rights. (Hicks, supra, 40 Cal.App.5th at p. 326.) Hicks
concluded Griffin v. Illinois (1956) 351 U.S. 12 (Griffin) and
Mayer v. City of Chicago (1971) 404 U.S. 189 were inapplicable
because they provided for “a due process-based right of access to
the courts.” (Hicks, at p. 325.) Hicks reasoned the imposition of
fines and fees on indigent defendants after trial, unlike the
requirement in Griffin and Mayer that defendants pay for a
transcript to obtain appellate review of their convictions, does not
interfere with a “defendant’s right to present a defense at trial or
to challenge the trial court’s rulings on appeal.” (Hicks, at
p. 326.)
      The court in Hicks reads the precedent on which Dueñas
relied too narrowly. This court in Dueñas recognized as a basic
principle of fairness that the rich and poor should have equal
access to the justice system, consistent with the principle
underlying the holding in Griffin, supra, 351 U.S. at page 17,
that “all people charged with crime must, so far as the law is
concerned, ‘stand on an equality before the bar of justice in every
American court.’” The United States Supreme Court affirmed
this principle in Mayer v. City of Chicago, supra, 404 U.S. at
pages 196-198, which held a defendant’s inability to pay for a
transcript to appeal a conviction that resulted in imposition of a




                                13
fine violated the defendant’s due process rights. The Supreme
Court explained, “The invidiousness of the discrimination that
exists when criminal procedures are made available only to those
who can pay is not erased by any differences in the sentences
that may be imposed.” (Id. at p. 197.)
       Without an ability-to-pay determination, the consequences
to a defendant from imposition of an assessment or fine differ
solely because of his or her financial condition. As this court
observed in Dueñas, collection of unpaid assessments could
damage the defendant’s credit, potentially interfere with child
support obligations, restrict employment opportunities, and
otherwise impact the defendant’s reentry to society and
rehabilitation. (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
These consequences are particularly troubling as to the
assessments because they are imposed not as a punishment, but
to fund the court system. (Id. at p. 1165.) As discussed, failure to
pay the restitution fine could similarly result in serious
consequences, including preventing a defendant from obtaining
dismissal of his or her conviction and enforcement of a civil
judgment against the defendant. (Id. at p. 1170.) In light of
these differing consequences, under Griffin, there is no “‘equality
before the bar of justice.’” (Griffin, supra, 351 U.S. at p. 17.)
Hicks fails to acknowledge these severe impacts.
       As to the second due process strand—the bar on
incarceration of an indigent defendant for failure to pay fines, as
articulated in In re Antazo (1970) 3 Cal.3d 100, 103-104 (Antazo),
Bearden v. Georgia (1983) 461 U.S. 660, 661-662 (Bearden), and
Williams. v. Illinois (1970) 399 U.S. 235, 241 (Williams)—Hicks
concluded these cases do not support an ability-to-pay hearing for
fines and fees in the Dueñas context because a defendant’s failure




                                14
to pay would not result in imprisonment. (Hicks, supra,
40 Cal.App.5th at p. 327.) The court in Hicks also found Dueñas
was inconsistent with the purpose of probation to rehabilitate
defendants by requiring repayment of their debts and amounted
to “‘inverse discrimination’” against affluent defendants by
allowing indigent defendants to avoid paying the fines and fees.
(Hicks, at p. 327.)
       This court fully considered and addressed the issues raised
by Hicks in Dueñas. The due process analyses in Antazo,
Bearden, and Williams are not limited to situations where a
defendant faces imprisonment because of an inability to pay an
assessment or fine. As the California Supreme Court held in
Antazo, in finding imprisonment of the defendant for failure to
pay a fine violated his equal protection rights, “We are satisfied
that in the case at bench, . . . we are presented with an example
of discrimination between different groups or classifications of
convicted criminal defendants—those who are poor and those
who are not—or, to put it another way, of discrimination based
upon poverty.”7 (Antazo, supra, 3 Cal.3d at p. 112; see Bearden,


7      Although Antazo, Bearden, and Williams address both due
process and equal protection principles, in Dueñas this court
considered “the issue one of due process because it concerns the
fairness of relations between the criminal defendant and the
state.” (Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. 4; see
Bearden, supra, 461 U.S. at p. 665 [“[W]e generally analyze the
fairness of relations between the criminal defendant and the
State under the Due Process Clause, while we approach the
question where the State has invidiously denied one class of
defendants a substantial benefit available to another class of
defendants under the Equal Protection Clause.”].)




                                15
supra, 461 U.S. at pp. 668-669, fn. omitted [“[I]f the probationer
has made all reasonable efforts to pay the fine or restitution, and
yet cannot do so through no fault of his own, it is fundamentally
unfair to revoke probation automatically without considering
whether adequate alternative methods of punishing the
defendant are available.”]; Williams, supra, 399 U.S. at p. 242
[“By making the maximum confinement contingent upon one’s
ability to pay, the State has visited different consequences on two
categories of persons . . . .”].) A defendant who does not pay fines
or fees faces potentially severe consequences that punish him or
her based on poverty, not the underlying crime.
       The court in Hicks focused on the language in Antazo that
imposition of penalty assessments on indigent defendants would
not “‘constitute[] of necessity in all instances a violation of the
equal protection clause.’” (Hicks, supra, 40 Cal.App.5th at p. 327,
quoting Antazo, supra, 3 Cal.3d at p. 116.) On this basis the
Hicks court concluded Dueñas’s requirement of an across-the-
board hearing on a defendant’s ability to pay “prohibits a practice
that Antazo sanctioned.” (Hicks, at p. 327.) But Antazo never
sanctioned imposition of consequences on an indigent defendant
different from those imposed on a defendant with resources to
pay. Rather, as the Antazo court explained, “Depending upon the
circumstances of the particular case and the condition of the
individual offender, there are a variety of ways in which the state
may fine the indigent offender, as alternatives to imprisonment,
without offending the command of equal protection.” (Antazo, at
p. 116.) The United States Supreme Court in Bearden observed,
for example, “the sentencing court could extend the time for
making payments, or reduce the fine, or direct that the
probationer perform some form of labor or public service in lieu of




                                16
the fine.” (Bearden, supra, 461 U.S. at p. 672.) As the Bearden
court explained, these feasible alternatives would serve the
state’s goals of punishment and deterrence without “depriv[ing]
the probationer of his conditional freedom simply because,
through no fault of his own, he cannot pay the fine.” (Ibid.)
       Moreover, the reasoning in Hicks that imposition of fines
and assessments is necessary for punishment does not apply to
court assessments because they are not intended as a form of
punishment. As to the restitution fine, requiring all defendants
to pay the same minimum restitution fine as a form of
punishment does not address the constitutional infirmity of
imposing the fine on defendants lacking the ability to pay. We
are mindful of the concern in Hicks that requiring an ability-to-
pay hearing for assessment fees and restitution fines would have
a deleterious impact on court funding and the statewide
restitution fund, respectively. (Hicks, supra, 40 Cal.App.5th at
p. 329.) But that concern does not address the constitutionality
of seeking to fund the courts and the state restitution fund by
imposing fees and assessments on those who cannot pay.8

8      Courts have distinguished between direct victim restitution
that reimburses victims for economic losses caused by a
defendant’s conduct and the restitution fine imposed to punish
the defendant. (See, e.g., People v. Evans (2019) 39 Cal.App.5th
771, 777 [“Based on the significant differences in purpose and
effect between victim restitution and the moneys at issue in
Dueñas, we decline to extend the rule of Dueñas to victim
restitution.”].) We do not address direct victim restitution in this
appeal. We note, however, that although a defendant’s ability to
pay may not be considered in determining the amount of direct
victim restitution (§ 1202.4, subd. (g)), section 1203.2, subdivision
(a), provides that a defendant’s probation or supervision may not




                                 17
Further, imposition of assessments and restitution fines on
indigent defendants will not serve the purposes of funding the
courts or the state restitution fund if they have no ability to pay.
       Moreover, we disagree with the conclusion in Hicks that
“[h]ow best to balance these competing interests—and what
alternatives are best used to keep funding the courts and to
continue providing some measure of restitution and solace to our
state’s crime victims—is a question to which . . . the federal and
California Constitutions do not speak and thus have left to our
Legislature.” (Hicks, supra, 40 Cal.App.5th at p. 329.) As United
States and California Supreme Court precedent affirm, the
responsibility to protect the due process rights of indigent
defendants in criminal proceedings is placed squarely on the
courts. But we agree it is the proper role of the Legislature to
address how best to fund the courts and provide restitution to
victims of crime. We invite the Legislature to do so.9



be revoked for failure to pay victim restitution unless the court
determines the defendant has the ability to pay.
9     Assembly Bill No. 927, which was vetoed by the Governor,
required a hearing on a defendant’s ability to pay fines, fees, and
assessments. (Assem. Bill No. 927 (2019-2020 Reg. Sess.).) The
Governor clarified in his veto message that he agreed there is a
need to “tackle the issue of burdensome fines, fees and
assessments that disproportionately drag low-income individuals
deeper into debt,” but noted the issue needed to be addressed in
the budget process to ensure adequate funding for the courts and
victim compensation. (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
       To the extent Hicks relies on the rehabilitative goal of
probation achieved by a defendant’s payment of a fine, the
purposes of the assessments and fines—to fund the courts and
the state restitution fund, respectively—are not tied to the
purposes of probation as described in Hicks. Finally, as to the
concern in Hicks that considering a defendant’s ability to pay
amounts to inverse discrimination against affluent defendants,
this equal protection approach fails to address the rights of
indigent defendants to due process in their relationship with the
courts that this court addressed in Dueñas. We believe the latter
is the better analysis.

            b.      The constitutionality of imposition of fines and
                    assessments should be analyzed under the due
                    process clause instead of the Eighth Amendment
      In Aviles, the Fifth Appellate District concluded a challenge
to imposition of fines and fees should be analyzed under the
excessive fines clause of the Eighth Amendment, not a due
process analysis under Dueñas. (Aviles, supra, 39 Cal.App.5th at
pp. 1067-1069.) Aviles relies on Timbs v. Indiana (2019) ___ U.S.
_____ [139 S.Ct. 682, 686-687] (Timbs), which affirmed that the
Eighth Amendment’s prohibition on excessive fines applies to the
states as a result of its incorporation by the due process clause of
the Fourteenth Amendment. The Timbs court also reaffirmed
that the Eighth Amendment’s prohibition on imposition of
excessive fines “‘limits the government’s power to extract
payments, whether in cash or in kind, “as punishment for some
offense.”’” (Timbs, at p. 687, quoting United States v. Bajakajian
(1998) 524 U.S. 321, 328 (Bajakajian).)




                                19
       Aviles also relied on the California Supreme Court’s opinion
in People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005)
37 Cal.4th 707, 728 (Lockyer), which applied the four factors the
Bajakajian court considered as part of its excessive fines analysis
to determine the proportionality of the fine to the offense: “(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.” The court in Aviles
analyzed the first and second factors, concluding the fines and
assessments were not grossly disproportionate to the culpability
of the defendant, who had shot and wounded two police officers
and stabbed his cellmate. (Aviles, supra, 39 Cal.App.5th at
p. 1072.)
       We disagree with Aviles’s conclusion a constitutional
challenge to imposition of fines and fees on an indigent defendant
should be analyzed under an excessive fines analysis instead of a
due process framework. As the California Supreme Court
explained in Lockyer, supra, 37 Cal.4th at page 728, in its
analysis of the constitutionality of civil penalties imposed by the
trial court, “It makes no difference whether we examine the issue
as an excessive fine or a violation of due process.” Because both
the Dueñas due process and Lockyer excessive fines analyses
require consideration of a defendant’s ability to pay, there is no
need to analyze the constitutionality of fines and fees under the
Eighth Amendment.
       In addition, Aviles considered whether the court
assessments were “excessive fines” despite the excessive fines
clause’s application only to the government’s extraction of
payments “‘“as punishment for some offense.”’” (Timbs, supra,
139 S.Ct. at p. 687; see Bajakajian, supra, 524 U.S. at p. 334 [“[A]




                                20
punitive forfeiture violates the excessive fines clause if it is
grossly disproportional to the gravity of a defendant’s
offense.”].)10 As this court explained in Dueñas, the court
assessments are not punitive, but instead are part of a
comprehensive scheme imposing numerous fees in civil and
criminal proceedings to fund California’s courts. (Dueñas, supra,
30 Cal.App.5th at p. 1165.) Aviles acknowledges the assessments
are not punitive but cites to language in Dueñas that the
additional, “potentially devastating consequences” from
imposition of the fees on indigent defendants transform the fees
“‘into additional punishment’” for indigent defendants. (Aviles,
supra, 39 Cal.App.5th at pp. 1071-1072, quoting Dueñas, at
p. 1168.) But the fact this court found a due process violation
based on the unfair consequences from imposition of assessments
does not transmute the assessments into fines imposed as
punishment for the purposes of the excessive fines clause.11


10    The Court in Timbs, supra, 139 S.Ct. at page 689,
cautioned that fines that are the source of revenue for the State
must be scrutinized to ensure they are not excessive, quoting the
language in Harmelin v. Michigan (1991) 501 U.S. 957, 979,
footnote 9, that “it makes sense to scrutinize governmental action
more closely when the State stands to benefit.” As the Harmelin
court explained, “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.”
(Harmelin, at p. 979, fn. 9.)
11    As discussed, the Fourth Appellate District in Kopp only
applied an Eighth Amendment excessive fines analysis to the
“punitive fines” at issue, including the restitution fine. (Kopp,
supra, 38 Cal.App.5th at pp. 96-97 & fn. 24.)




                                 21
       Application of an Eighth Amendment analysis to the
minimum restitution fine is complicated by section 1202.4,
subdivision (c), which prohibits a trial court in the first instance
from considering a defendant’s ability to pay the minimum
restitution fine. A trial court facing an Eighth Amendment
challenge to imposition of the minimum restitution fine could
avoid the serious constitutional question raised, as this court held
in Dueñas under a due process analysis, by staying execution of
the fine until the People demonstrate the defendant has the
ability to pay the fine. (Dueñas, supra, 30 Cal.App.5th at
p. 1172.) By contrast, because section 1202.4, subdivision (d),
requires the trial court to consider the defendant’s inability to
pay an amount in excess of the minimum fine, imposition of an
amount above the minimum does not pose the same
constitutional challenge (unless, of course, the fines imposed are
excessive).
       Finally, the excessive fines analysis employed by Aviles and
other courts inexplicably ignores the fourth factor under
Lockyer—the defendant’s ability to pay. (Lockyer, supra,
37 Cal.4th at p. 728.) To the extent a trial or appellate court
considers an Eighth Amendment challenge to restitution fines
(whether to the minimum fine or an amount above the
minimum), the analysis must include consideration of all four
Lockyer factors, not just the two factors the Aviles court
considered. (Lockyer, at p. 728; Kopp, supra, 38 Cal.App.5th at
p. 97 [Lockyer factors “are the same four factors the superior
court should apply if either appellant claims the punitive fines
here are excessive.”].) The factors considered by the Aviles
court—the defendant’s level of culpability and the harm he or she
caused (Aviles, supra, 39 Cal.App.5th at p. 1072)—are often not




                                22
at issue with respect to a trial court’s imposition of fines following
a conviction. But the defendant’s ability to pay is critical to the
analysis, especially for the minimum restitution fine (currently
$300) that must be imposed in every case regardless of the
defendant’s culpability and the defendant’s ability to pay.
(§ 1202.4, subd. (b)(1).)

       2.     Belloso did not forfeit his arguments under Dueñas
       The People contend Belloso forfeited his objections to the
trial court’s imposition of the assessments and fines because he
failed to object to their imposition at sentencing. However, at the
time Belloso was sentenced, Dueñas had not yet been decided. As
we explained in People v. Castellano (2019) 33 Cal.App.5th 485,
489 (Castellano) in rejecting this argument, “[N]o California court
prior to Dueñas had held it was unconstitutional to impose fines,
fees or assessments without a determination of the defendant’s
ability to pay. . . . When, as here, the defendant’s challenge on
direct appeal is based on a newly announced constitutional
principle that could not reasonably have been anticipated at the
time of trial, reviewing courts have declined to find forfeiture.”
(Accord, People v. Johnson (2019) 35 Cal.App.5th 134, 137-138;
People v. Santos, supra, 38 Cal.App.5th at pp. 931-932; contra,
People v. Ramirez (2019) 40 Cal.App.5th 305, 312; People v.
Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen
(2019) 33 Cal.App.5th 1126, 1153 (Frandsen).)12 As in
Castellano, we decline to find Belloso forfeited his constitutional


12    On July 17, 2019 the California Supreme Court denied
review in both Castellano (S255551) and Frandsen (S255714).




                                 23
challenge to the imposition of the assessments and restitution
fines.

      3.     On remand Belloso is entitled to an opportunity to
             challenge imposition of the assessments and fines
       The People contend the record does not support a remand
for an ability-to-pay hearing because Belloso failed to show in the
trial court he did not have the financial ability to pay the
assessments and fines and failed to show he lacked the future
earning capacity to pay, including from wages he would earn
while in prison. The only information in the record regarding
Belloso’s ability to pay at the time of sentencing is that he was 42
years old and had an unknown employment history.
       The People are correct Belloso must in the first instance
request an ability-to-pay hearing and present evidence of his
inability to pay the assessments and fines. (Castellano, supra,
33 Cal.App.5th at p. 490.)13 However, as discussed in the context
of forfeiture, because Belloso was not aware of his ability to
challenge the assessments and fines on due process and equal
protection grounds, we conclude he should have that opportunity
on remand.
       We reject the People’s additional contention Belloso has not
shown a due process violation because he has not demonstrated
adverse consequences from imposition of the assessments and
fines. As we explained in Castellano, “the defendant need not
present evidence of potential adverse consequences beyond the

13    As noted, the Supreme Court’s grant of review in Kopp
includes the question of which party has the burden of proof to
show a defendant’s inability to pay.




                                24
fee or assessment itself, as the imposition of a fine on a defendant
unable to pay it is sufficient detriment to trigger due process
protections.” (Castellano, supra, 33 Cal.App.5th at p. 490.)

                         DISPOSITION

      The conviction is affirmed. We remand to allow Belloso to
request a hearing and present evidence demonstrating his
inability to pay the court facilities and court operations
assessments, restitution fine, and parole revocation restitution
fine. If Belloso demonstrates his inability to pay the
assessments, it must strike them. If the trial court determines
Belloso does not have the ability to pay the restitution fine and
parole revocation restitution fine, it must stay execution of the
fines. On remand the trial court should correct the June 27, 2018
minute order to reflect Belloso only admitted the allegation he
was convicted of a violent or serious felony under the three
strikes law with respect to his 2013 conviction of making a
criminal threat, not the alleged 1995 or 2013 assault convictions.



                                           FEUER, J.
WE CONCUR:



            PERLUSS, P. J.



            ZELON, J.




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