Filed 10/22/19
                            CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D074946

        Plaintiff and Respondent,

        v.                                         (Super. Ct. Nos. CR143205,
                                                    SCD120970, SCD153778)
LEOLA ALLEN,

        Defendant and Appellant.


        APPEAL from orders of the Superior Court of San Diego County, Jay M. Bloom,

Judge. Affirmed and remanded, with directions.

        Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D.

Einhorn and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

        Defendant Leola Allen pleaded guilty to committing felony welfare fraud in 1993,

1997, and 2000 (and to committing felony perjury in 2000). At sentencing in each case,

the trial court ordered Allen to pay direct victim restitution and various fines and fees. In

2018, Allen filed petitions under Penal Code sections 1203.4 and 1203.42 seeking
discretionary "expungement" of her convictions on the basis she had been rehabilitated.1

She also sought to stay, dismiss, or delete her court-ordered fines and fees because she

asserted she was unable to pay them. The prosecution opposed the expungement requests

because Allen still owed about $9,000 in direct victim restitution; the prosecution did not

oppose the request for relief from the fines and fees. The trial court denied Allen's

petitions based on her outstanding victim restitution obligations, but did not directly

address her request for relief from the fines and fees.

       On appeal, Allen argues that under the recent decision in People v. Dueñas (2019)

30 Cal.App.5th 1157 (Dueñas), the trial court's denial of her expungement petitions on

the basis of her outstanding victim restitution obligations violated her due process or

equal protection rights because she was financially unable to pay the victim restitution.

As we will explain, this argument lacks merit for two reasons. First, Dueñas is materially

distinguishable—it involved revenue-generating assessments and a punitive restitution

fine, whereas this case involves voter-mandated direct victim restitution intended to make




1      Although the relief afforded by Penal Code sections 1203.4 and 1203.42 "is
sometimes referred to as 'expungement' of the conviction," the statutes "do[] not, strictly
speaking, 'expunge' the conviction, nor render the conviction 'a legal nullity.' " (People v.
Guillen (2013) 218 Cal.App.4th 975, 996 (Guillen).) For example, convictions
"expunged" under these statutes still may be used against the defendant in subsequent
prosecutions and professional licensure proceedings, and may disqualify the defendant
from possessing firearms or holding public office. (Pen. Code, § 1203.4, subd. (a)(1)-(3);
Guillen, at p. 996.) But because the statutes provide "a palpable benefit, such that the
conviction may be treated as if it were not a conviction for most purposes" (Guillen, at p.
996), we will refer colloquially to the relief afforded by them as "expungement." Further
statutory references are to the Penal Code unless otherwise indicated.
                                              2
the victim whole. Second, we agree with the analysis of numerous courts that have

rejected Dueñas's due process framework.

       Alternatively, Allen contends the trial court erroneously concluded that her

outstanding victim restitution obligations deprived the court of the authority to grant

discretionary expungement. The record does not support this contention.

       On remand, however, we direct the trial court to conduct further proceedings in

two respects. First, because the trial court did not directly address Allen's request for

relief from the court-ordered fines and fees (other than victim restitution), we will direct

the trial court to do so. Second, because the record is unclear regarding whether Allen

paid all the victim restitution owed in connection with her convictions in 2000, we will

direct the trial court to make this factual determination and, if the court determines she

has paid it all, to reconsider her expungement petition in light of that fact.

       In all other respects, we affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

                               Allen's Underlying Convictions

       The 1993 Case

       In 1993, Allen pleaded guilty in case No. CR143205 (the 1993 Case) to one felony

count of failing to report income to the Department of Social Services (Department)

resulting in her receipt of more than $400 in unentitled benefits (hereafter, welfare fraud).




                                              3
(Welf. & Inst. Code, former § 10980, subd. (c)(2).)2 The trial court placed Allen on

probation for five years, ordered her to pay victim restitution of $10,994, and imposed a

restitution fine of $200. Allen's probation expired in 2000.

        The 1997 Case

        In 1997, Allen pleaded guilty in case No. SCD120970 (the 1997 Case) to one

felony count of welfare fraud. (Welf. & Inst. Code, former § 10980, subd. (c)(2).) The

trial court placed Allen on probation for five years, ordered her to pay victim restitution

(the appellate record does not indicate the amount), and imposed various fines and fees

(including a $200 restitution fine, $507 for court-appointed attorney fees, and unspecified

investigatory and report-preparation costs).

        The 2000 Case

        In 2000, Allen pleaded guilty in case No. SCD153778 (the 2000 Case) to one

felony count of welfare fraud (Welf. & Inst. Code, former § 10980, subd. (c)(2)), and one

felony count of perjury (§ 118, subd. (a)). The trial court sentenced Allen to three years

in prison, ordered her to pay victim restitution of $2,821, and imposed a restitution fine of

$400.

        As a result of her convictions in the 2000 Case, the trial court revoked Allen's

probation in the 1997 Case and sentenced her to two years in prison.

2       At all relevant times, the threshold for a felony violation of Welfare and
Institutions Code section 10980, subdivision (c)(2) was $400. (Welf. & Inst. Code,
former § 10980, subd. (c)(2); Stats. 1984, ch. 1448, § 2; Stats. 1998, ch. 902 (Assem. Bill
No. 2772), § 11; Stats. 1998, ch. 903 (Assem. Bill No. 131), § 2.5; Stats. 1999, ch. 83
(Sen. Bill No. 966), § 202.) The threshold has since been increased to $950. (Welf. &
Inst. Code, § 10980, subd. (c)(2).)
                                               4
                        Allen's Petitions to Expunge Her Convictions

       In September 2018, Allen filed separate (but substantially similar) petitions in the

1993, 1997, and 2000 Cases seeking to expunge her convictions and to "permanently

stay, dismiss, and/or delete" the court-ordered fines and fees (but not the victim

restitution, which she acknowledged would survive expungement). Allen invoked the

court's discretionary authority under sections 1203.4 (as to her conviction in the 1993

Case) and 1203.42 (as to her convictions in the 1997 and 2000 Cases) to further "the

interest of justice."

       In a supporting declaration, Allen stated she had remained sober and law-abiding

for the past 17 years; obtained employment until her "100% . . . SSI Disability

assessment" prevented her from working further; pursued a GED and enrolled in a

community college course; and regularly attended church. She stated in her declaration

that she was seeking expungement, in part, because one of her sons is serving a life

sentence in prison, and when she "tried to visit him, [she] was denied entry because of

[her] three prior felony convictions. Obtaining the requested post-conviction relief will

allow [her] to visit [her] son."

       Allen acknowledged she had several outstanding court-ordered financial

obligations: (1) in the 1993 Case, victim restitution of $4,374; (2) in the 1997 Case,

victim restitution of $4,626.64, attorney fees of $507, supervision costs of $167, and fines

totaling $408; and (3) in the 2000 Case, no victim restitution, but fines in the amount of

$400. Allen asserted she was unable to fulfill these obligations because she is 59 years


                                             5
old, is "100% disabled owing to mental illness," lives "in Section 8 Housing," and

subsists entirely on "SSI Disability" assistance of $910.72 per month.

                                The Prosecution's Oppositions

       The prosecution opposed Allen's requests that her convictions be expunged,

arguing her outstanding victim restitution obligations precluded expungement as a matter

of right or as a matter of discretion in the interests of justice.3 The prosecution did not

oppose Allen's request to stay, dismiss, or delete the court-ordered fines and fees other

than victim restitution.

                                   The Hearing and Ruling

       At the outset of the hearing on Allen's petitions, the trial court indicated it "wasn't

inclined to grant" them "because she owes victim restitution," which "is a little different."

Defense counsel responded that even if the convictions were expunged, the victim

restitution obligations would still be enforceable as civil judgments. He further argued

Allen was "being discriminated against because she can't pay." The court responded:

"Well, I respectfully disagree, because every defendant could avoid restitution and ask

for a civil judgment.· I know you can get one, but there's still an issue about paying the

restitution. [¶] So I'll deny all three without prejudice so restitution is paid . . . to the

victim."

3       The prosecution's evidence of Allen's outstanding financial obligations—audit
worksheets from the Office of Revenue and Recovery as of November 6, 2008—differed
slightly in some respects from Allen's assertions in her declaration. Most notably, the
audit report for the 2000 Case indicates no balance is due, but states: "***NO ORDER
RECEIVED TO ESTABLISH ACCOUNT FOR CASE SCD153778***"

                                                6
       Allen appeals.

                                        DISCUSSION

                                I. Relevant Legal Principles

                                   A. Victim Restitution

       "California law provides for two types of restitution: direct restitution to the victim

[citation], which is based on a direct victim's loss, and a restitution fine [citation], which

is not. Payment of direct victim restitution goes directly to victims and compensates

them for economic losses they have suffered because of the defendant's crime." (Dueñas,

supra, 30 Cal.App.5th at p. 1169; see People v. Giordano (2007) 42 Cal.4th 644, 652

(Giordano).) Restitution fines are payable to the state's "Restitution Fund." (Guillen,

supra, 218 Cal.App.4th at p. 985.) "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." (Guillen, at p. 984.) Allen's primary appellate

challenge relates to direct victim restitution.

       "In 1982, California voters passed Proposition 8, also known as The Victims' Bill

of Rights[, which] added article I, section 28, subdivision (b) to the California

Constitution[.]" (Giordano, supra, 42 Cal.4th at p. 652; People v. Covington (2000) 82

Cal.App.4th 1263, 1268 (Covington); People v. Gross (2015) 238 Cal.App.4th 1313,


                                                  7
1317-1318 (Gross).) As adopted, this provision read: "It is the unequivocal intention of

the People of the State of California that all persons who suffer losses as a result of

criminal activity shall have the right to restitution from the persons convicted of the

crimes for losses they suffer. [¶] . . . Restitution shall be ordered from the convicted

persons in every case, regardless of the sentence or disposition imposed, in which a crime

victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.

The Legislature shall adopt provisions to implement this section . . . ." (Cal. Const.,

former art. I, § 28, subd. (b).)4

       "A victim's right to restitution is, therefore, a constitutional one; it cannot be

bargained away or limited, nor can the prosecution waive the victim's right to receive

restitution." (Gross, supra, 238 Cal.App.4th at p. 1318.)

       As directed by the voters, the Legislature enacted section 1202.4 to implement the

Victims' Bill of Rights. (Giordano, supra, 42 Cal.4th at pp. 652-653; Gross, supra, 238

Cal.App.4th at p. 1318; People v. Seymour (2015) 239 Cal.App.4th 1418, 1435

(Seymour).) This statute manifests "the intent of the Legislature that a victim of crime

who incurs an economic loss as a result of the commission of a crime . . . receive

restitution directly from a defendant convicted of that crime." (§ 1202.4, subd. (a)(1).)

Subject to exceptions not applicable here, this statute provides that "in every case in



4      In 2008, after Allen was ordered to pay victim restitution in the 1993, 1997, and
2000 Cases, the voters amended article I, section 28 of the California Constitution to
eliminate a sentencing court's discretion to not award victim restitution when "compelling
and extraordinary reasons exist." (Gross, supra, 238 Cal.App.4th at p. 1318, fn. 5.)

                                               8
which a victim has suffered economic loss as a result of the defendant's conduct, the

court shall require that the defendant make restitution to the victim or victims in an

amount established by court order . . . . The court shall order full restitution." (§ 1202.4,

subd. (f).) The statute further provides that a "defendant's inability to pay shall not be a

consideration in determining the amount of a restitution order." (§ 1202.4, subd. (g).) A

victim restitution order is "enforceable as if [it] were a civil judgment." (§ 1202.4, subd.

(a)(3)(B)).

                                     B. Expungement

       Allen based her petition to expunge her conviction in the 1993 Case on section

1203.4, and her petitions to expunge her convictions in the 1997 and 2000 Cases on

section 1203.42.

                                     1. Section 1203.4

       Section 1203.4, subdivision (a)(1) states:

          "In any case in which a defendant has fulfilled the conditions of
          probation for the entire period of probation, or has been discharged
          prior to the termination of the period of probation, or in any other
          case in which a court, in its discretion and the interests of justice,
          determines that a defendant should be granted the relief available
          under this section, the defendant shall, at any time after the
          termination of the period of probation, if he or she is not then
          serving a sentence for any offense, on probation for any offense, or
          charged with the commission of any offense, be permitted by the
          court to withdraw his or her plea of guilty or plea of nolo contendere
          and enter a plea of not guilty; or, if he or she has been convicted
          after a plea of not guilty, the court shall set aside the verdict of
          guilty; and, in either case, the court shall thereupon dismiss the
          accusations or information against the defendant and except as noted
          below, he or she shall thereafter be released from all penalties and
          disabilities resulting from the offense of which he or she has been

                                              9
           convicted, except as provided in Section 13555 of the Vehicle
           Code." (§ 1203.4, subd. (a)(1).)

       From this language, the courts have identified the following "three circumstances

in which a defendant may apply for relief under . . . section 1203.4: if, '(a) he has fulfilled

the conditions of his probation for the entire period; (b) he has been discharged before the

termination of the period of probation; or (c) in any case in which a court, in its discretion

and the interests of justice, determines he should be granted relief.' " (Guillen, supra, 218

Cal.App.4th at p. 991; see Seymour, supra, 239 Cal.App.4th at p. 1429.) "Under either of

the first two scenarios, the defendant is entitled as a matter of right to the dismissal of the

charge." (Guillen, at p. 991; see Seymour, at p. 1430.) "Under the third scenario, the

court exercises its discretion whether to grant relief in the interests of justice." (Guillen,

at p. 991; see Seymour, at p. 1430; People v. Butler (1980) 105 Cal.App.3d 585, 587

(Butler) ["A grant of relief in the third situation is clearly discretionary."].) Allen based

her petition to expunge her conviction in the 1993 Case on the discretionary scenario of

section 1203.4.

       " ' "A grant of relief under section 1203.4 is intended to reward an individual who

successfully completes probation by mitigating some of the consequences of his

conviction and, with a few exceptions, to restore him to his former status in

society . . . ." ' " (Guillen, supra, 218 Cal.App.4th at p. 998.) " 'Removal of the blemish

of a criminal record is the reward held out through the provisions of . . . section 1203.4,

as an additional inducement. The obvious purpose is to secure law compliance through

an attempt at helpful cooperation rather than by coercion or punishment.' " (Ibid.)

                                              10
                                     2. Section 1203.42

       Section 1203.42, subdivision (a)(1) provides that, "[i]f a defendant was sentenced

prior to the implementation of the 2011 Realignment Legislation for a crime for which he

or she would otherwise have been eligible for sentencing pursuant to subdivision (h) of

Section 1170, the court, in its discretion and in the interests of justice, may order" the

same expungement relief available under section 1203.4. (Italics added.) Under this

language, relief is entirely discretionary.

       Allen sought discretionary expungement of her convictions in the 1997 and 2000

Cases under section 1203.42. The parties agree that her offenses in those cases fall

within the statute's scope. (See Welf. & Inst. Code, § 10980, subd. (c)(2) [punishment for

welfare fraud includes "imprisonment pursuant to subdivision (h) of Section 1170"];

§ 126 ["Perjury is punishable by imprisonment pursuant to subdivision (h) of Section

1170"].)


II. Denying Expungement Based on Allen's Outstanding Victim Restitution Obligations

                         Did Not Violate Due Process or Equal Protection

       Allen's primary contention on appeal is that the trial court violated her due process

and equal protection rights by denying her expungement petitions on the basis of

outstanding victim restitution obligations that she maintains she was unable to pay.

Although no California court appears to have addressed this precise issue, courts have

rejected similar arguments in closely analogous contexts. We therefore reject Allen's

contention.

                                              11
       It is well-established that an indigent defendant's outstanding victim restitution

obligation precludes mandatory expungement under the first scenario of section 1203.4

(fulfillment of all probation conditions). (People v. Chandler (1988) 203 Cal.App.3d

782, 789 (Chandler); Covington, supra, 82 Cal.App.4th at pp. 1269-1270; Guillen, supra,

218 Cal.App.4th at p. 1000.) The rationale for this rule is that a defendant who has not

fulfilled a probation condition requiring payment of victim restitution has "not fulfilled

all the terms of his probation during the 'entire' probationary period." (Guillen, at p.

1000, italics added.)5

       In Covington, supra, 82 Cal.App.4th 1263, the court held that denying mandatory

expungement on the basis of an indigent defendant's outstanding victim restitution

obligation does not violate due process or equal protection. The defendant in Covington

pleaded guilty to theft, was granted probation, and was ordered to pay her employer

approximately $99,000 in victim restitution. (Id. at p. 1265.) The probation department

determined she could afford monthly restitution payments of $150. (Id. at p. 1265.)

After making all scheduled payments, the defendant still owed approximately $88,000 in

victim restitution at the end of her probationary period. (Ibid.) Based on this outstanding

5       By contrast, a defendant is entitled to mandatory expungement under section
1203.4's second scenario (early discharge from probation) even if he or she still owes
victim restitution. (See Butler, supra, 105 Cal.App.3d at pp. 587-589 [defendant who
still owed about $2,000 of victim restitution was entitled to mandatory expungement
because probation was discharged early when he became totally disabled in a car
accident]; Seymour, supra, 239 Cal.App.4th at pp. 1427, 1436 [defendant who still owed
about $5,700 of victim restitution was entitled to mandatory expungement because his
probation was discharged early to facilitate reinstatement of his nursing license].) When
expungement is granted in this scenario, the victim restitution obligation survives the
expungement. (Seymour, at p. 1436.)
                                             12
obligation, the trial court denied her petition for mandatory expungement. (Ibid.) The

Court of Appeal affirmed. (Id. at p. 1271.)

          The Covington court recognized that the probation department's determination of

the defendant's ability to pay was intended to protect her due process rights. (Covington,

supra, 82 Cal.App.4th at p. 1268, fn. 3.) But the court also observed that expungement

serves as "an additional inducement" in achieving the rehabilitative objectives of

probation, which include " 'requiring the defendant to return his ill-gotten gains and

helping him appreciate the harm done to the victim.' " (Id. at p. 1270.) On balance, the

court concluded that "the rehabilitative purposes of probation, much less the

constitutional right of a victim to restitution, would be ill served if the defendant could

have his or her conviction expunged without having made up for the victim's losses."

(Ibid.)

          In reaching this conclusion, the Covington court declined to find an equal

protection violation "simply because [the defendant] was not wealthy enough to have

paid her court-ordered restitution in full while she was on probation." (Covington, supra,

82 Cal.App.4th at p. 1270.) The court explained that the due process protection against

requiring a defendant to make restitution payments he or she cannot afford does "not . . .

relieve a wrongdoer from responsibility for the consequences of his or her criminal act. It

would be anomalous indeed if a provision designed to equalize the treatment of rich and

poor defendants were applied in a way that only shifted the inequality to the other

extreme. Equal protection means only that [the defendant] can have her conviction


                                               13
expunged, the same as the wealthier defendant in her hypothetical, if and when she pays

restitution to [the victim, in full]." (Id. at p. 1271; see People v. Hicks (2019) 40

Cal.App.5th 320, 327 (Hicks) [" 'immuniz[ing]' " an indigent defendant from both

incarceration and fines " 'would amount to inverse discrimination [because] it would

enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment

whereas other defendants must always suffer one or the other . . . .' "].)

       We find Covington's reasoning persuasive,6 and see no principled reason why

outstanding restitution obligations can properly disqualify an indigent defendant from

mandatory expungement but not discretionary expungement.

       In arguing against this conclusion, Allen relies most heavily on the recent decision

in Dueñas, supra, 30 Cal.App.5th 1157, in which the defendant—an indigent mother of

two who subsisted on public aid because she was unable to work due to cerebral palsy—

challenged the constitutionality of imposing mandatory court facilities and operations

assessments and restitution fines without first determining the defendant's ability to pay

them. (Id. at pp. 1160-1161, 1164-1165, 1169.) The Court of Appeal for the Second

District, Division Seven, held that imposing the assessments and fine on an indigent

defendant violated due process. (Id. at pp. 1167, 1168, 1172.)

       Addressing the court facilities and operations assessments—which the Dueñas

court observed were not "intended to be punitive in nature" but, rather, were "enacted as

parts of more comprehensive legislation intended to raise funds for California courts"

6      Although the Attorney General discussed Covington in its respondent's brief,
Allen did not address it in her reply brief.
                                              14
(Dueñas, supra, 30 Cal.App.5th at p. 1165)—the court found it is "unfair" and "serves no

rational purpose" to impose "unpayable fines on indigent defendants" because doing so

"does not accomplish the goal of collecting money" (id. at p. 1167). Rather, the court

explained, imposing these assessments on an indigent defendant is tantamount to

"inflict[ing] additional punishment." (Id. at p. 1166.) This is all the more unfair, the

court reasoned, considering that the "civil counterparts" to the criminal-case court-

funding assessments were "enacted in the same legislation and [are] imposed only on

those with the means to pay them." (Id. at p. 1169.)

       Similarly, the Dueñas court found that imposing a restitution fine—which "is a

debt of the defendant to the state" and "is intended to be . . . additional punishment for a

crime" (Dueñas, supra, 30 Cal.App.5th at p. 1169)—on an indigent defendant is

fundamentally unfair because an unsatisfied restitution obligation necessarily deprives

the defendant the opportunity to obtain mandatory expungement of the conviction as a

matter of right under the first scenario of section 1203.4 (Dueñas, at pp. 1170-1172).

       We decline to follow Dueñas for two reasons. First, Dueñas is readily

distinguishable. It involved revenue-generating assessments and punitive fines, whereas

this case involves a constitutionally mandated victim restitution order intended to make

the victim whole for its losses. These purposes are "fundamentally different." (People v.

Evans (2019) 39 Cal.App.5th 771, 776 (Evans); People v. Kopp (2019) 38 Cal.App.5th

47, 94, fn. 22 (Kopp) ["[b]ecause victim restitution is a civil remedy, we do not address

that restitution" in connection with the defendant's Dueñas challenge]; People v. Aviles


                                             15
(2019) 39 Cal.App.5th 1055, 1068-1069 (Aviles), citing People v. Gutierrez (2019) 35

Cal.App.5th 1027, 1034 (Gutierrez) (conc. opn. of Benke, J.).)

       Second, even if we were otherwise inclined to extend Dueñas to victim restitution,

we would adopt the reasoning of the numerous courts that have rejected Dueñas's due

process analysis. (See Hicks, supra, 40 Cal.App.5th at pp. 326-329; Aviles, supra, 39

Cal.App.5th at pp. 1068-1069; Kopp, supra, 38 Cal.App.5th at pp. 96-97; Gutierrez,

supra, 35 Cal.App.5th at p. 1034 (conc. opn. of Benke, J.).) Many of these courts "have

suggested that the proper analytic framework . . . is the excessive fines clause of the

Eighth Amendment to the United States Constitution, rather than the due process clause."

(Evans, supra, 39 Cal.App.5th at p. 776, fn. 2; see Aviles, at pp. 1068-1069; Kopp, at pp.

96-97; Gutierrez, at p. 1034 (conc. opn. of Benke, J.).) 7

       In rejecting Dueñas's due process analysis, the Hicks court—a sister division of

the Dueñas court—explained that Dueñas's due process analysis is unsupported by the

"two distinct strands of due process precedent" it "wove together." (Hicks, supra, 40

Cal.App.5th at p. 325.) "The first strand secures a due process-based right of access to

the courts" by "requir[ing] courts to waive court costs and fees that would otherwise



7       An Eighth Amendment framework would likely offer Allen no assistance because
a victim restitution award that is proportionate to the victim's loss is not a constitutionally
excessive fine. (Aviles, supra, 39 Cal.App.5th at p. 1071, fn. 27; United States v. Newell
(1st Cir. 2011) 658 F.3d 1, 35 ["The [federal] circuits that have considered challenges to
restitution orders under the Excessive Fines clause have held that where the restitution
order reflects the amount of the victim's loss no constitutional violation has occurred."];
United States v. Dubose (9th Cir. 1998) 146 F.3d 1141, 1145 [" 'Where the amount of
restitution is geared directly to the amount of the victim's loss caused by the defendant's
illegal activity, proportionality is already built into the order.' "].)
                                              16
preclude criminal and civil litigants from prosecuting or defending lawsuits or from

having an appellate court review the propriety of any judgment." (Ibid.) However, this

"strand does not dictate Dueñas's bar on imposing fees because the imposition of

assessments, fines and fees does not deny a criminal defendant access to the courts."

(Hicks, at p. 326; see People v. Caceres (2019) 39 Cal.App.5th 917, 927 ["[f]ees imposed

after a case is completed . . . do not deprive defendants of access to justice"]; Gutierrez,

supra, 35 Cal.App.5th at p. 1039 (conc. opn. of Benke, J.) ["the imposition of the two

assessments and one restitution fine on the defendant in Dueñas was not an issue of

access to the courts or our system of justice"].)

       "The second strand [of precedent relied on by Dueñas] erects a due process-based

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

to a criminal defendant's indigence rather than contumaciousness." (Hicks, supra, 40

Cal.App.5th at p. 325.) But this "strand also does not dictate Dueñas's bar on imposing

fees because their imposition, without more, does not result in incarceration for

nonpayment due to indigence." (Hicks, at p. 326.)

       As applied here, neither of Dueñas's due process "foundational pillars" (Hicks,

supra, 40 Cal.App.5th at p. 327) is implicated by the trial court's denial of Allen's

expungement petitions based on her outstanding victim restitution obligations. The

denial of her petitions did not deny her access to the trial court or to this appeal, nor did it

result in her incarceration. It merely left her criminal record intact.




                                              17
       To the extent any of the more general due process underpinnings discussed in

Dueñas apply here, they support the conclusion there was no due process violation.

Dueñas discussed at length the Supreme Court's decision in Bearden v. Georgia (1983)

461 U.S. 660 (Bearden), which held that a state may not automatically revoke probation

and incarcerate a defendant for nonpayment of restitution without first inquiring about the

reasons for nonpayment. (Id. at pp. 661, 672-673.) The Bearden court identified the

following factors to consider when analyzing a defendant's constitutional rights vis-à-vis

the consequences of his or her ability to pay: "Whether analyzed in terms of equal

protection or due process, 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 the purpose . . . .' " (Id. at pp. 666-667, fn. omitted.)

       Applying these factors, the California Supreme Court in People v. Cookson (1991)

54 Cal.3d 1091 (Cookson) held that a statute that bars revocation of probation for

nonwillful failure to pay restitution (§ 1203.2) does not bar a court from extending the

probationary period to afford more time for payment. (Cookson, at p. 1097.) The court

explained that its holding was "buttress[ed]" by "common sense" and the probationary

purposes of ensuring that the victim is made whole via restitution and that the defendant

is punished, deterred, and rehabilitated. (Ibid.)




                                               18
       A balancing here of the factors identified in Bearden shows the trial court did not

violate Allen's due process rights by denying her expungement petitions based on her

apparently nonwillful failure to pay victim restitution. First, the nature and extent " 'of

the individual interest affected' " (Bearden, supra, 461 U.S. at pp. 666-667) in Bearden

and Dueñas was a complete loss of personal liberty, whereas here it is Allen's desire for a

clean criminal record. Delaying expungement until Allen satisfies her restitution

obligations is more akin to the extension of the probationary period upheld in Cookson

than to the incarceration at issue in Bearden and Dueñas.

       Second, Allen has not argued persuasively that denying expungement will

"exten[sively] . . . affect[]" her rights. (Bearden, supra, 461 U.S. at p. 667.) Although

she asserts in her declaration that expunging her convictions will enable her to visit her

son in prison, she has provided no legal authority or competent evidence to support this

assertion. " 'It is the appellant's responsibility to support claims of error with citation and

authority . . . .' " (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 25.)

       Nor is it likely, as Allen now asserts, that her convictions "ironically . . . hamper[]"

her ability to obtain the employment necessary to pay the victim restitution because she

must disclose them in response to "the common request on job applications to notify

potential employers" of prior convictions. This assertion both (1) contradicts her

argument below that it is her "100% . . . SSI Disability assessment" (rather than her




                                              19
convictions) that prevented her from working,8 and (2) ignores the potential impact of

California's "Ban the Box" law (Stats. 2017, ch. 789, § 1(a)), which generally makes it

"an unlawful employment practice for an employer with five or more employees" to

"include on any application for employment, before the employer makes a conditional

offer of employment to the applicant, any question that seeks the disclosure of an

applicant's conviction history" (Gov. Code, § 12952, subd. (a)(1)).

       As to the third Bearden factor, allowing courts to withhold expungement as an

inducement to ensuring payment of restitution bears a "rational[] . . . connection"

(Bearden, supra, 461 U.S. at p. 667) to the primary purpose of victim restitution—

fulfilling the voter-enacted constitutional provision requiring that defendants make

victims whole. (Covington, supra, 82 Cal.App.4th at p. 1270.) It also furthers the

secondary purposes of victim restitution—" 'requiring the defendant to return his ill-

gotten gains and helping him appreciate the harm done to the victim.' " (Covington,

supra, 82 Cal.App.4th at p. 1270.) This purpose is particularly appropriate where, as

here, the restitution award represents money actually diverted from the victim to the

defendant (compared with, say, expenses borne by a victim that do not directly enrich the

defendant, such as the cost to repair the victim's damaged property).

       Allen identifies as an " 'alternative means for effectuating the purpose' " (Bearden,

461 U.S. at p. 667) the fact that a victim restitution award survives expungement and

remains enforceable as a civil judgment. Her reliance on Seymour to emphasize this

8      Indeed, the fact Allen obtained employment before becoming disabled indicates
her convictions did not prevent her from working.
                                            20
point is misplaced. The Seymour court held that outstanding victim restitution is not a

valid basis on which to deny mandatory expungement under scenario two (early

discharge from probation). But it does not follow from this conclusion that outstanding

victim restitution is an improper consideration in determining whether to grant

discretionary expungement.

       In sum, we conclude the denial of Allen's petitions for discretionary expungement

based on her outstanding restitution obligations did not violate her due process rights.

       As an alternative to her due process argument, Allen contends that denying

expungement on the basis of outstanding victim restitution violates her equal protection

rights because it deprives her of a benefit available to wealthier defendants who can

afford to satisfy their restitution obligations. We are not persuaded. First, this argument

was expressly rejected in Covington, supra, 82 Cal.App.4th at page 1271, which, as

noted, Allen has not addressed in her briefing.

       Nor has Allen argued convincingly that an equal protection analysis would be

subject to review under anything other than a rational basis analysis. She notes that

financial condition, when coupled with a fundamental right, may be subject to strict

scrutiny. But she has not identified any fundamental right conceivably at issue here.

Thus, as with our due process analysis, we conclude there is a rational basis for

withholding expungement of a conviction as an inducement to ensuring a victim receives

its voter-enacted, constitutionally enumerated right to full restitution.




                                              21
              III. The Trial Court Understood the Scope of Its Discretion

       As an alternative to her constitutional arguments, Allen argues the trial court

abused its discretion by erroneously believing it had none. That is, she contends the fact

the trial court denied her expungement petitions on the basis of her outstanding victim

restitution obligations indicates the court mistakenly believed the petitions "were brought

under the first or second section 1203.4 categor[ies]"—which are mandatory—"rather

than the third"—which is discretionary—"ignoring the facts presented by [Allen]

regarding her sobriety and community involvement." We are not persuaded.

       In reviewing a trial court's order for an abuse of discretion, we presume the order

is correct, indulge all intendments and presumptions to support it on matters as to which

the record is silent, and the appellant bears the burden to affirmatively show error.

(People v. Hurtado (2019) 35 Cal.App.5th 871, 878.) "The court is presumed to have

considered all of the relevant factors in the absence of an affirmative record to the

contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) "Thus, the fact

that the court focused its explanatory comments on [one factor] does not mean that it

considered only that factor." (Ibid.)

       Allen has not met her burden of affirmatively showing the trial court erroneously

based its ruling on section 1203.4's mandatory expungement provisions rather than the

discretionary provisions in sections 1203.4 (the third scenario) and 1203.42 (which

provides only a discretionary basis). In fact, the record shows the contrary. First, Allen's

petitions all expressly state they are addressed to the trial court's discretionary authority.


                                              22
Second, Allen indicated in her declaration that she was seeking discretionary relief.

Third, the prosecutor argued that neither mandatory nor discretionary expungement were

warranted. Fourth, the trial court's preliminary observation that it "wasn't inclined"—as

opposed to wasn't able—to grant the expungement petitions indicates the court

understood it had the discretion to grant them—the court just concluded that doing so was

not appropriate. Finally, the fact the court focused its explanatory comments on Allen's

outstanding victim restitution obligations does not, as she now suggests, compel the

conclusion that the court did not consider her mitigating circumstances. (Myers, supra,

69 Cal.App.4th at p. 310.)

       We disagree with Allen's contention that the trial court's "summary ruling" is

"quite similar" to the trial court's deficient ruling in People v. McLernon (2009) 174

Cal.App.4th 569. In that case, the trial court denied a petition for discretionary

expungement on the basis that the court had denied two earlier petitions. (Id. at p. 574.)

The Court of Appeal reversed because the trial court's ruling, on its face, indicated the

court had not considered the merits of the current petition. (Id. at p. 575.) Moreover, to

the extent the trial court's reference to the earlier rulings constituted an incorporation of

the rationales of those rulings, the rationales were inapplicable because they related to

mandatory expungement, whereas the current petition was for discretionary

expungement. (Id. at p. 575.)

       This case is nothing like McLernon. The trial court did not deny Allen's petitions

on the basis of previously denied petitions or on other procedural grounds. To the


                                              23
contrary, the fact the trial court cited Allen's outstanding victim restitution obligations

and referred to them as "a little different" indicates the court considered the merits of her

petitions. Thus, McLernon is inapposite.

                          IV. Further Proceedings on Remand

       Because the trial court did not expressly rule on Allen's unopposed request for

relief from the court-ordered fines and fees (other than victim restitution), she requests

that we dismiss them in the interests of justice. The Attorney General maintains

dismissal is unwarranted because it was Allen's duty to secure a ruling from the trial court

in the first instance. We agree dismissal is unwarranted, but will direct the trial court on

remand to consider in the first instance Allen's request for relief from the court-ordered

fines and fees other than victim restitution. We express no opinion on how the trial court

should exercise its discretion on this issue.

       On another note, in a footnote in its respondent's brief, the Attorney General points

out that, "[a]lthough the record is unclear as to whether [Allen] paid her full victim

restitution obligation" in the 2000 Case, she did "not argue . . . that the trial court abused

its discretion by relying on outstanding victim restitution as the basis for denying that

petition. [Citations.] If it is factually accurate that she owes no victim restitution on that

case, remand may be appropriate for the trial court to reevaluate that petition." In her

reply brief, Allen agrees that remand is appropriate.

       We, too, agree that reconsideration is appropriate. Therefore, we will direct the

trial court on remand to determine whether Allen has paid all victim restitution owed in


                                                24
connection with the 2000 Case and, if the court determines she has, to reconsider her

petition in that case in light of that fact. We express no opinion on how the trial court

should exercise its discretion.

                                      DISPOSITION

       On remand, the trial court is directed to (1) consider whether to stay or dismiss

Allen's court-ordered fines and fees (other than victim restitution); and (2) determine

whether Allen has paid all victim restitution owed in the 2000 Case and, if the court

determines she has, to reconsider her expungement petition in light of that fact. In all

other respects, the orders are affirmed.



                                                                     HALLER, Acting P. J.
WE CONCUR:



AARON, J.



GUERRERO, J.




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