Filed 1/29/20
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SIXTH APPELLATE DISTRICT

 THE PEOPLE,                                         H045718
                                                    (Santa Clara County
          Plaintiff and Respondent,                  Super. Ct. Nos. C1511050, C1526753)

          v.

 QUINTEL OSHAY ADAMS,

          Defendant and Appellant.

        Defendant Quintel Oshay Adams appeals from a judgment sentencing him to
prison after he violated the terms of probation in two cases. His sole appellate argument
is that the trial court violated his federal constitutional right to due process by imposing
fines and fees without first assessing his ability to pay. (Citing People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).) As we will explain, we conclude that Dueñas was
wrongly decided and will therefore affirm the judgment.
                          I.    TRIAL COURT PROCEEDINGS
        This case involves two felony complaints filed in 2015. (The underlying facts are
irrelevant to the sole appellate issue.) Defendant was charged in the first case with felony
assault by force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), and
two misdemeanors (case No. 1511050). As part of a negotiated disposition, defendant
pleaded no contest to a fourth count added by oral amendment at the time of the plea:
inflicting corporal injury on a person with whom he had a dating relationship. (Pen.
Code, § 273.5.) Imposition of sentence was suspended, the original three counts were
dismissed, and defendant was placed on formal probation. Defense counsel argued
defendant did not have the ability to pay any fines or fees because he was homeless and
did not have a job. The trial court stated, “I won’t impose [the] $330 restitution fund
fine” or the probation revocation fine (Pen. Code, §§ 1202.4, 1202.44). However, the
court imposed a $40 court operations assessment (Pen. Code, § 1465.8); a $30 court
facilities funding assessment (Gov. Code, § 70373); a $129.75 criminal justice
administration fee (Gov. Code, §§ 29550–29550.3); and a $25-per-month probation
supervision fee.
       A few months after being placed on probation in the first case, defendant was
charged in the second case with failing to register as a sex offender (Pen. Code,
§ 290.011, subd. (b)) as a felony (case No. 1526753). In another negotiated disposition,
defendant pleaded no contest to the charged count, imposition of sentence was
suspended, and defendant again received a grant of formal probation. The court imposed
a $300 restitution fine along with a $30 fee to cover administrative costs (Pen. Code,
§ 1202.4, subds. (b)(1), (l)) and imposed but suspended a $300 probation revocation fine
(Pen. Code, § 1202.44); imposed a $40 court operations assessment (Pen. Code,
§ 1465.8) and imposed a $30 court facilities funding assessment (Gov. Code, § 70373).
The court stated it would not “impose the criminal justice administration fee based on
[defendant’s] inability to pay.”
       The trial court held a contested probation violation hearing regarding both cases in
early 2018. (Defendant voluntarily chose not to attend the hearing and had similarly
refused to appear at multiple previous hearings despite being in local custody.) A
probation officer testified about defendant’s violations, including failing to participate in
a substance abuse program, failing to complete court-ordered community service, and
failing to report to probation as scheduled. The court revoked probation in both cases and
sentenced defendant to two years in state prison, consisting of the lower term of two
years for the corporal injury count in the first case, with a concurrent two-year term for
failing to register as a sex offender in the second case. Defendant’s sentence was deemed
served based on presentence credits. The previously suspended probation revocation fine
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in the second case was ordered to be paid. The court imposed and suspended a $300
parole revocation fine (Pen. Code, § 1202.45) in each case.
                                     II.   DISCUSSION
       Based on Dueñas, defendant argues his federal constitutional right to due process
was violated when fines and fees were imposed without determining that he would be
able to pay them. As defendant raised in the trial court his inability to pay generally and
he was sentenced before Dueñas was filed, we reject the People’s contention that
defendant forfeited his appellate arguments.
       A two-justice majority from a different panel of this court recently followed
Dueñas in a case where the People conceded that Dueñas applied. (People v. Santos
(2019) 38 Cal.App.5th 923.) But consistent with more recent published authority (and
the dissent in Santos), we conclude that Dueñas was wrongly decided. (See People v.
Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 (Hicks);
People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Allen (2019) 41 Cal.App.5th 312,
326–328.)
       Hicks was convicted of, among other things, resisting an executive officer. He
was placed on formal probation and ordered to pay various fines and fees, including a
restitution fine (Pen. Code, § 1202.4, subd. (b)(1)), a court operations assessment (Pen.
Code, § 1465.8), and a court facilities funding assessment (Gov. Code, § 70373). (Hicks,
supra, 40 Cal.App.5th at p. 324, rev. granted.) Hicks challenged the fines and fees based
on the reasoning of Dueñas. The Hicks court described Dueñas as holding that “ ‘due
process of law requires [a] trial court to ... ascertain a defendant’s present ability to pay
before it imposes’ (1) ‘court facilities and court operations assessments’ [citations], or
(2) a restitution fine.” (Hicks, at p. 325, quoting Dueñas, supra, 30 Cal.App.5th at
pp. 1164, 1167, 1172, italics in Hicks.) The Hicks court observed that Dueñas “wove
together two distinct strands of due process precedent.” (Hicks, at p. 325.) Under the
first strand courts must waive otherwise-applicable costs if requiring them would
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preclude indigent litigants from access to the courts. (Ibid., citing Griffin v. Illinois
(1956) 351 U.S. 12, 19 [requiring free court transcripts for use on appeal by indigent
defendants].) The second strand prohibits incarcerating individuals based on failure to
pay criminal penalties when that failure is due to indigence rather than willful defiance.
(Hicks, at p. 325, citing In re Antazo (1970) 3 Cal.3d 100, 103–104, 113–114 (Antazo).)
       Hicks noted that Dueñas represents an expansion of those due process strands
because the fines at issue in Dueñas neither interfered with the right to appeal nor
imposed an assessment that triggered immediate incarceration. (Hicks, supra,
40 Cal.App.5th at p. 326, rev. granted.) Hicks found the expansion unwarranted for two
reasons. First, essentially banning the imposition of any fine or fee against an indigent
defendant is inconsistent with Antazo, where the Supreme Court refused to hold “ ‘that
the imposition upon an indigent offender of a fine [or] penalty assessment, either as a
sentence or as a condition of probation, constitutes of necessity in all instances a violation
of the equal protection clause.’ ” (Hicks, at p. 327, quoting Antazo, supra, 3 Cal.3d at
p. 116.) Second, Dueñas is inconsistent with the rehabilitative purpose of probation
because one way to encourage rehabilitation is to require a probationer to make an effort
to repay his or her debt to society. (Hicks, at p. 327.) The Hicks court concluded that
Dueñas was wrongly decided and affirmed imposition of the fines and fees at issue.
(Hicks, at p. 329.) We find Hicks persuasive. Dueñas’s conclusion is not supported by
the authorities it cited and is inconsistent with due process jurisprudence. We likewise
conclude that Dueñas was wrongly decided.
       Dueñas is also factually distinguishable from the case here. Penal Code
section 1202.4, subdivision (c) vests discretion in the trial court to waive a restitution fine
on a showing of “compelling and extraordinary reasons,” but a “defendant’s inability to
pay shall not be considered a compelling and extraordinary reason.” Wholly separate
from any inability to pay, compelling and extraordinary reasons were present in the case
of Ms. Dueñas, who was homeless with two young children; did not have a high school
                                               4
diploma or a job because of cerebral palsy; and had no bank account or credit card.
(Dueñas, supra, 30 Cal.App.5th at p. 1160.) Defendant here presented no similar
compelling and extraordinary reasons to justify a restitution fine waiver.

       We agree with Hicks that the “fundamental policy question presented in Dueñas is
a nettlesome one,” but attempts to change that policy must be first addressed to the
Legislature. (Hicks, supra, 40 Cal.App.5th 329, rev. granted.) As defendant’s appellate
argument is based entirely on Dueñas and opinions following Dueñas, we conclude
defendant has not demonstrated error in the trial court’s consideration of his financial
circumstances or imposition of fines and fees.
                                   III.   DISPOSITION
       The judgment is affirmed.




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                                ____________________________________
                                Grover, J.




I CONCUR:




____________________________
Elia, J.




H045718 - The People v. Adams
       PREMO, Acting P.J., Dissenting.
       I respectfully dissent from my colleagues’ conclusion that People v. Dueñas
(2019) 30 Cal.App.5th 1157 was wrongly decided. At Adams’s sentencing in case No.
1511050, defense counsel argued that Adams was homeless and unemployed and,
apparently in reliance on these representations, the trial court stated, “I won’t impose
[the] $330 restitution fund fine” or the probation revocation fund fine (Pen. Code,
§§ 1202.4, 1202.44). At sentencing in case No. 1526753, the trial court declined to
“impose the criminal justice administration fee based on [defendant’s] inability to pay.”
Given that the trial court expressly recognized Adams’s inability to pay, I would remand
the matter to the trial court for a hearing on Adams’s ability to pay the remaining fines
and fees. (People v. Santos (2019) 38 Cal.App.5th 923, 933-934.)




                                   ______________________________________
                                                    Premo, Acting P.J.




People v. Adams
H045718
Trial Court:                          Santa Clara County Superior Court,
                                      Case Nos.: C1511050, C1526753

Trial Judge:                          Hon. Elizabeth C. Peterson
Attorneys for Plaintiff/Respondent:   Xavier Becerra
The People                             Attorney General of California
                                      Gerald A. Engler
                                       Chief Assistant Attorney General
                                      Jeffrey M. Laurence
                                       Senior Assistant Attorney General
                                      Seth K. Schalit
                                       Supervising Deputy Attorney General
                                      Katie L. Stowe
                                       Deputy Attorney General
Attorneys for Defendant/Appellant:    William Robinson
Quintel Oshay Adams                    Under Appointment by the Court of Appeal




H045718 - The People v. Adams
