Filed 1/8/19
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION SEVEN


THE PEOPLE,                             B285645

       Plaintiff and Respondent,        (Los Angeles County
                                        Super. Ct. No. 5VY02034)
       v.

VELIA DUEÑAS,

       Defendant and Appellant.

      APPEAL from an order of the Superior Court of Los
Angeles County, Eric P. Harmon, Judge. Reversed and
remanded with directions.
      Public Counsel, Kathryn Eidmann, Elizabeth Hadaway,
Alisa Hartz, and Mark D. Rosenbaum for Defendant and
Appellant.
      Clare Pastore; Michael Kaufman and Devon Porter for
American Civil Liberties Union of Northern California, American
Civil Liberties Union of Southern California, and American Civil
Liberties Union of San Diego and Imperial Counties, as Amici
Curiae on behalf of Defendant and Appellant.
      East Bay Community Law Center, Theresa Zhen and
Brandon Greene for A New Way of Life Reentry Project,
American Civil Liberties Union of Southern California, All of Us
Or None—Los Angeles, All of Us Or None—San Francisco, Bay
Area Legal Aid, California Association of Local Conservation
Corps, California Reinvestment Coalition, Californians for Safety
and Justice, Civicorps, Community Coalition, Contra Costa
County Public Defender, Contra Costa Racial Justice Coalition,
Drug Policy Alliance, East Bay Community Law Center, Ella
Baker Center, Equal Justice Society, Essie Justice Group, Hillary
Blout, Homeboy Industries, Law Enforcement Action
Partnership, Lawyers Committee for Civil Rights of the San
Francisco Bay Area, Legal Services of Northern California, Legal
Services for Prisoners with Children, Neighborhood Legal
Services of Los Angeles County, Root & Rebound, and Rubicon
Programs, as Amici Curiae on behalf of Defendant and Appellant.
      Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg
& Rhow, A. Howard Matz and Peter A. Goldschmidt for Los
Angeles County Bar Association, Beverly Hills Bar Association,
Bar Association of San Francisco, and Western Center of Law
and Poverty, as Amici Curiae on behalf of Defendant and
Appellant.
      Albert J. Menaster, Head Deputy Public Defender (Los
Angeles) for Los Angeles County Public Defender, as Amicus
Curiae on behalf of Defendant and Appellant.
      Michael N. Feuer, City Attorney, Debbie Lew, Assistant
City Attorney, and Rolando P. Reyes, Deputy City Attorney, for
Plaintiff and Respondent.




                                2
     Jackie Lacey, District Attorney (Los Angeles), Phyllis C.
Asayama and Matthew Brown, Deputy District Attorneys, as
Amicus Curiae on behalf of Plaintiff and Respondent.
                     ____________________

       Velia Dueñas, an indigent and homeless mother of young
children, pleaded no contest to driving with a suspended license.
The trial court placed her on probation, imposed $220 in fees and
fines, and ordered that if an outstanding debt remained at the
end of her probation, the amount due would go to collections
without further order of the court. Dueñas contends that
imposing the fees and fine without considering her ability to pay
violates state and federal constitutional guarantees because it
simply punishes her for being poor. We agree. “Whatever
hardship poverty may cause in the society generally, the judicial
process must make itself available to the indigent; it must free
itself of sanctions born of financial inability.” (Preston v.
Municipal Court (1961) 188 Cal.App.2d 76, 87-88, quoted in
Jameson v. Desta (2018) 5 Cal.5th 594, 623.)
       Because the only reason Dueñas cannot pay the fine and
fees is her poverty, using the criminal process to collect a fine she
cannot pay is unconstitutional. Accordingly, we reverse the order
imposing court facilities and court operations assessments, and
we remand the case to the trial court with directions to stay the
execution of the restitution fine until the People prove that
Dueñas has gained an ability to pay.




                                  3
      FACTUAL AND PROCEDURAL BACKGROUND

      Dueñas is a married mother of two young children. She
has cerebral palsy, and because of her illness she dropped out of
high school and does not have a job. Dueñas’s husband is also
unemployed, although occasionally he is able to obtain short-term
work in construction.
      The family of four receives $350 per month in CalWorks
cash benefits and $649 per month in CalFresh food stamps
benefits. Dueñas uses all the money she receives to take care of
the children, but she cannot afford basic necessities for her
family. She has no bank account and no credit card. She owns
only her clothing and a mobile phone, and her mobile phone
service is frequently disconnected because she cannot afford the
$40 per month payment.
      The family has no home of their own; they alternate
between staying at Dueñas’s mother’s home and the home of her
mother-in-law. The electricity was cut off to her mother-in-law’s
home because the family could not afford to pay the bill.

      A. Prior Legal Proceedings

       When Dueñas was a teenager, she received three juvenile
citations. She could not afford to pay the $1,088 she was
assessed for these citations. Because she could not pay her debt,
her driver’s license was suspended. Dueñas was unable to have
her driver’s license reinstated because she could not afford the
fees, and she did not qualify for the state amnesty program.
       Over the next several years, Dueñas suffered three
misdemeanor convictions for driving with a suspended license
and one conviction for failing to appear on a driving without a




                                4
license case. In these cases, Dueñas was offered the ostensible
choice of paying a fine or serving jail time in lieu of payment.
Each time, she could not afford the fees, so she served time in
jail—a total of 51 days across four cases. Additionally, she was
sentenced to 90 days in jail for driving with a suspended license.
In total, Dueñas was sentenced to 141 days in jail for driving
with a driver’s license that had been suspended because she had
been unable to pay her juvenile citations.
       Even after serving her jail time, Dueñas remained liable for
court fees associated with each misdemeanor conviction. In one
case, she was also ordered to pay attorney fees. She was unable
to pay those amounts, and they were sent to collections. Dueñas
receives letters from collection agencies, but she has no way to
pay off her debt.

      B. Present Proceedings

      On July 13, 2015, Dueñas pleaded no contest to another
misdemeanor charge of driving with a suspended license (Veh.
Code, § 14601.1, subd. (a)) based on a plea agreement that
conditioned the consequences for the conviction on whether she
obtained a valid driver’s license by the time of the sentencing
hearing. If Dueñas returned to court on the date of sentencing
without a valid license, she would be fined and sentenced to 30
days in jail. If Dueñas returned with a valid license, however,
the court would place her on 36 months summary probation and
impose a $300 fine.
      At the February 22, 2016 sentencing hearing, Dueñas did
not have a valid driver’s license and was prepared to surrender
that day. The court asked if Dueñas wished to “save money and




                                5
convert the $300 [fine] to 9 days of county jail,” and her counsel
said, “Yes. She doesn’t have the ability to pay.”
       The court suspended imposition of sentence and placed
Dueñas on 36 months summary probation on the condition that
she serve 30 days in county jail and pay $300, plus a penalty and
assessment, or that she serve 9 additional days in custody in lieu
of paying the $300 fine. The court imposed a $30 court facilities
assessment under Government Code section 70373, a $40 court
operations assessment under Penal Code section 1465.8, and a
$150 restitution fine under Penal Code section 1202.4. The trial
court also imposed and stayed a probation revocation restitution
fine. (Pen. Code, § 1202.44.)
       Dueñas asked the court to set a hearing to determine her
ability to pay “the attorney fees [she had previously been
assessed] and court fees.” She advised the court that she was
homeless and receiving public assistance. The court said such a
hearing could be held in the future, if needed: “She has three
years to pay them. If it gets near the time where she can suffer a
consequence as a result of not paying them, which would almost
never be the case, we can set a hearing at that time.”
       Citing Penal Code section 987.8, subdivision (b), which
provides that a court may order a defendant who has been
represented by a public defender to pay attorney fees only if the
court determines he or she has the present ability to pay all or
part of the cost of legal assistance, Dueñas again asked the court
to conduct an ability to pay hearing. The court asked if it had to
hold the hearing before it imposed fees or only to have a hearing
“before she suffers the consequences of not being able to pay
them.” Dueñas advised the court that as a matter of due process,




                                6
“before you can impose the fees there must be an ability-to-pay
hearing.”
       After what the court described as “searching for some sort
of case law” to support Dueñas’s position, the court declared it
would hold an ability to pay hearing. The court imposed “all the
other fines and fees,” and ordered that Dueñas serve her 39 days
in county jail, see the court’s financial evaluator, and return to
court in three weeks for an ability to pay hearing on the attorney
fees.
       Dueñas pointed out that she would be unable to serve her
sentence and see the financial evaluator within three weeks. Her
counsel suggested that given that Dueñas was homeless, “it
might be simpler to do it here in court” rather than require her to
see the financial evaluator. The court said that it did not make
sense for it to “sort through the documents myself” and that she
should “avail herself of the expertise of the financial evaluator.”
The court offered some flexibility in setting the date of the
hearing but cautioned, “I don’t want to get into the habit of
having litigants determine what day they want to come back.”
The court also stated its belief, which was inaccurate, that if
Dueñas were to be unable to appear for the hearing, the fees and
fines would not be sent to collections or transformed into a civil
judgment.
       At the March 17, 2016 ability to pay hearing, the court
reviewed Dueñas’s uncontested declaration concerning her
financial circumstances, determined that she lacked the ability to
pay the previously-ordered attorney fees, and waived them on the
basis of her indigence. The court concluded that the $30 court
facilities assessment under Government Code section 70373 and
$40 court operations assessment under Penal Code section 1465.8




                                7
were both mandatory regardless of Dueñas’s inability to pay
them. With respect to the $150 restitution fine, the court found
that Dueñas had not shown the “compelling and extraordinary
reasons” required by statute (Pen. Code, § 1202.4, subd. (c)) to
justify waiving this fine. The court rejected Dueñas’s
constitutional arguments that due process and equal protection
required the court to consider her ability to pay these fines and
assessments, and ordered her to pay $220 by February 21, 2019.
The trial court told Dueñas that, “[i]f in the end you’re not able to
pay, you won’t be punished for it. Those [sums] will go to
collections without any further order from this court.”
       The superior court appellate division affirmed the trial
court’s order. We granted Dueñas’s petition to transfer the case to
the Court of Appeal. (Cal. Rules of Court, rule 8.1002.)

                             DISCUSSION

       “Raising money for government through law enforcement
whatever the source—parking tickets, police-issued citations,
court-imposed fees, bills for court appointed attorneys, punitive
fines, incarceration charges, supervision fees, and more—can lay
a debt trap for the poor. When a minor offense produces a debt,
that debt, along with the attendant court appearances, can lead
to loss of employment or shelter, compounding interest, yet more
legal action, and an ever-expanding financial burden—a cycle as
predictable and counterproductive as it is intractable.” (Rivera v.
Orange County Probation Dept. (2016) 832 F.3d 1103, 1112, fn. 7.)
The record in this matter illustrates the cascading consequences
of imposing fines and assessments that a defendant cannot pay.
       As the trial court noted, this matter “doesn’t stem from one
case for which she’s not capable of paying the fines and fees,” but




                                 8
from a series of criminal proceedings driven by, and contributing
to, Dueñas’s poverty. Unable to pay the fees for citations she
received when she was a teenager, Dueñas lost her driver’s
license. Like many who are “faced with the need to navigate the
world and no feasible, affordable, and legal option for doing so”
(Thomas v. Haslam (M.D.Tenn. 2018) 329 F.Supp.3d 475, 521),
she broke the law and continued to drive. As a result, Dueñas
now has four misdemeanor convictions for driving without a valid
license. These, in turn, have occasioned new fines, fees, and
assessments that she is unable to pay. As the trial court
described it, the repeat criminal proceedings have caused her
financial obligations to “snowball.”1
      Dueñas argues that laws imposing fines and fees on people
too poor to pay punish the poor for their poverty. These statutes,
she asserts, are fundamentally unfair because they use the
criminal law, which is centrally concerned with identifying and
punishing only blameworthy decisions, to punish the blameless
failure to pay by a person who cannot pay because of her poverty.
The laws, moreover, are irrational: they raise no money because
people who cannot pay do not pay. We conclude that due process
of law requires the trial court to conduct an ability to pay hearing
and ascertain a defendant’s present ability to pay before it
imposes court facilities and court operations assessments under


1      In recognition of the counterproductive nature of this
system and its tendency to enmesh indigent defendants in a cycle
of repeated violations and escalating debt, the Legislature
recently amended several statutes to prohibit the courts and the
Department of Motor Vehicles from suspending a driver’s license
because of an unpaid traffic citation. (Stats. 2017, ch. 17, §§51-
54, eff. Jun. 27, 2017.)



                                 9
Penal Code section 1465.8 and Government Code section 70373.
We also hold that although Penal Code section 1202.4 bars
consideration of a defendant’s ability to pay unless the judge is
considering increasing the fee over the statutory minimum, the
execution of any restitution fine imposed under this statute must
be stayed unless and until the trial court holds an ability to pay
hearing and concludes that the defendant has the present ability
to pay the restitution fine.

      I. The Court Facilities and Court Operations Assessments
         Must Be Subject to an Ability to Pay Determination

         A. The Statutory Scheme

       Government Code section 70373 and Penal Code section
1465.8, which impose court facilities and court operations
assessments on every criminal conviction, each provide that the
assessment “shall be imposed on every conviction for a criminal
offense” except for parking offenses. (Gov. Code, § 70373, subd.
(a)(1); Pen. Code, § 1465.8, subd. (a)(1).)
       Neither fee is intended to be punitive in nature. (People v.
Alford (2007) 42 Cal.4th 749, 757 [Pen. Code, § 1465.8]; People v.
Fleury (2010) 182 Cal.App.4th 1486, 1492-1494 [Gov. Code,
§ 70373].) Both were enacted as parts of more comprehensive
legislation intended to raise funds for California courts. Penal
Code section 1465.8 was enacted in 2003 as part of a law that
increased a number of court-related fees, including small claims
court filing fees, civil litigation filing fees, civil motions fees, and
appellate filing fees; it also imposed new court fees, such as a fee
for complex litigation, probate filing fees, and a fee for certain
court reporter services. (Assem. Republican Bill Analysis of
Assem. Bill No. 1759 (2003-2004 Reg. Sess.).) Originally, Penal



                                   10
Code section 1465.8 provided that its purpose was “[t]o ensure
and maintain adequate funding for court security” (Stats. 2003,
ch. 159, § 25); in 2011 the Legislature amended the statute to
specify that the purpose was “[t]o assist in funding court
operations.” (Stats. 2011, ch. 40, § 6.)
       Government Code section 70373 was enacted in 2008 as
part of a law that raised funds for court facilities by increasing
existing fees or imposing new fees in trust and estate
proceedings; for the violation of license, registration and
mechanical requirements of the Vehicle Code; for certain parking
offenses; and for persons attending traffic violator school. (Legis.
Counsel’s Dig., Sen. Bill No. 1407, Stats. 2008, ch. 311.)
Government Code section 70373 provides that its purpose is “[t]o
ensure and maintain adequate funding for court facilities.” (Gov.
Code, § 70373, subd. (a)(1).)
       Although it enacted these fee-generating statutes to raise
funds for court operations and facilities, the Legislature has
recognized the deleterious impact of increased court fees on
indigent people. The Legislature has declared that “our legal
system cannot provide ‘equal justice under law’ unless all persons
have access to the courts without regard to their economic means.
California law and court procedures should ensure that court fees
are not a barrier to court access for those with insufficient
economic means to pay those fees.” (Gov. Code, § 68630, subd.
(a).) The Legislature has also declared that “fiscal responsibility
should be tempered with concern for litigants’ rights to access the
justice system. The procedure for allowing the poor to use court
services without paying ordinary fees must be one that applies
rules fairly to similarly situated persons, is accessible to those




                                11
with limited knowledge of court processes, and does not delay
access to court services.” (Gov. Code, § 68630, subd. (b).)
       Accordingly, the Legislature has provided for fee waivers
for indigent litigants at the trial and appellate court levels that
excuse them from paying fees for the first pleading or other
paper, and other court fees and costs, including assessments for
certain court investigations. (Gov. Code, § 68631.) Government
Code section 68632 grants permission to proceed without paying
costs to those receiving certain public assistance benefits, to those
whose monthly income is 125 percent or less of government
poverty guidelines, and to those who “cannot pay court fees
without using moneys that normally would pay for the common
necessaries of life for the applicant and the applicant’s family.”
(Gov. Code, § 68632, subdivisions (a)-(c).)2
      While this protective mechanism lessens the
disproportionate burden that these fundraising fees present to
indigent litigants in the civil context, the Legislature neither
instituted nor rejected a corresponding safeguard for assessments
attached to a criminal conviction. Both Government Code section
70373 and Penal Code section 1465.8 are silent as to the
consideration of a defendant’s ability to pay in imposing the
assessments.

      B.    For Those Unable to Pay, These Assessments Inflict
            Additional Punishment

      The “constitutional guaranties of due process and equal
protection both call for procedures in criminal trials which allow

2      Based on the uncontested evidence Dueñas presented in
the trial court, she would be eligible for a fee waiver under
Government Code section 68632.



                                 12
no invidious discriminations between persons and different
groups of persons. Both equal protection and due process
emphasize the central aim of our entire judicial system—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.’” (Griffin v. Illinois (1956) 351 U.S. 12, 17 (Griffin).)
       Accordingly, a state may not inflict punishment on indigent
convicted criminal defendants solely on the basis of their poverty.
In In re Antazo (1970) 3 Cal.3d 100 (Antazo), the California
Supreme Court invalidated the practice of requiring convicted
defendants to serve jail time if they were unable to pay a fine and
a penalty assessment. (Id. at p. 103.) “Although a direction for
confinement for default in payment of a fine may appear to apply
equally to both the rich offender and the poor one, actually the
former has the opportunity to escape his confinement while the
right of the latter to pay what he cannot, is a hollow one.” (Id. at
pp. 103-104.) The California Supreme Court observed, “‘The
“choice” of paying [a] $100 fine or spending 30 days in jail is
really no choice at all to the person who cannot raise $100. The
resulting imprisonment is no more or no less than imprisonment
for being poor, . . . .’ [Citation.]” (Id. at p. 108; see also id. at
p. 115 [“he was unable to obtain his freedom only because he was
poor”].)3




3     In this case, the trial court allowed Dueñas to serve jail
time as an alternative to paying the $300 fine imposed as
punishment for the offense. That fine, and the jail time she
accepted in lieu of the fine, are not at issue in this appeal.



                                 13
       Citing Antazo, supra, 3 Cal.3d 100, with approval, the
United States Supreme Court has held that the federal
Constitution prohibits states from automatically revoking an
indigent defendant’s probation for failure to pay a fine and
restitution. (Bearden v. Georgia (1983) 461 U.S. 660, 667-668 [“if
the State determines a fine or restitution to be the appropriate
and adequate penalty for the crime, it may not thereafter
imprison a person solely because he lacked the resources to pay
it”] (Bearden).) “If the probationer has willfully refused to pay
the fine or restitution when he has the means to pay, the State is
perfectly justified in using imprisonment as a sanction to enforce
collection. . . . But if 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. This lack of
fault provides ‘a substantia[l] reason which justifie[s] or
mitigate[s] the violation and make[s] revocation inappropriate.’
[Citation.]” (Id. at pp. 668-669, footnote omitted.)
       Imposing unpayable fines on indigent defendants is not
only unfair, it serves no rational purpose, fails to further the
legislative intent, and may be counterproductive. A fine on
indigent people “is not imposed to further any penal objective of
the State. It is imposed to augment the State’s revenues but
obviously does not serve that purpose; the defendant cannot pay
because he is indigent . . . . ” (Tate v. Short (1971) 401 U.S. 395,
399; see also Antazo, supra, 3 Cal.3d 100, 114.) Poor people must
face collection efforts solely because of their financial status, an
unfair and unnecessary burden that does not accomplish the goal
of collecting money. Punishing “someone who through no fault of




                                14
his own is unable to make restitution will not make restitution
suddenly forthcoming. Indeed, such a policy may have the
perverse effect of inducing the probationer to use illegal means to
acquire funds to pay in order to avoid” the additional negative
consequences. (Bearden, supra, 461 U.S. at pp. 670-671.)
       The People argue that Griffin, supra, 351 U.S. 12, Antazo,
supra, 3 Cal.3d 100, and Bearden, supra, 461 U.S. 660, are
inapposite because while the defendants in those cases faced
imprisonment on the basis of their poverty, Dueñas is subject
only to a civil judgment that she cannot satisfy. The United
States Supreme Court has rejected the argument that the
principles of Griffin and its progeny are restricted to instances in
which a defendant is subject to imprisonment. (Mayer v. City of
Chicago (1971) 404 U.S. 189, 196-197.) Moreover, the People do
not dispute that, whether considered as a criminal penalty or as a
civil judgment, Dueñas faces significant consequences if she
blamelessly fails to pay her assessments. “As legislative and
other policymakers are becoming increasingly aware, the growing
use of . . . fees and similar forms of criminal justice debt creates a
significant barrier for individuals seeking to rebuild their lives
after a criminal conviction. Criminal justice debt and associated
collection practices can damage credit, interfere with a
defendant’s commitments, such as child support obligations,
restrict employment opportunities and otherwise impede reentry
and rehabilitation. ‘What at first glance appears to be easy
money for the state can carry significant hidden costs—both
human and financial—for individuals, for the government, and
for the community at large. . . . [¶] Debt-related mandatory
court appearances and probation and parole conditions leave
debtors vulnerable for violations that result in a new form of




                                 15
debtor’s prison. . . . Aggressive collection tactics can disrupt
employment, make it difficult to meet other obligations such as
child support, and lead to financial insecurity—all of which can
lead to recidivism.’ [Citations.]” (People v. Neal (2018) 29
Cal.App.5th 820, 827.)
       These additional, potentially devastating consequences
suffered only by indigent persons in effect transform a funding
mechanism for the courts into additional punishment for a
criminal conviction for those unable to pay. Under the Griffin-
Antazo-Bearden analysis, 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 thus 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.4


4      While we consider the issue one of due process because it
concerns the fairness of relations between the criminal defendant
and the state (see Bearden, supra, 461 U.S. at p. 665), we
acknowledge that the case law in this area historically has drawn
on both due process and equal protection principles. (See, e.g.,
ibid. [“Due process and equal protection principles converge”
when analyzing the constitutionality of imposing financial
burdens upon indigent criminal defendants]; Ross v. Moffitt
(1974) 417 U.S. 600, 608-609 [cases draw support from both due
process and equal protection clauses of the 14th Amend.]; In re
Sanders (1999) 21 Cal.4th 697, 715 [due process and equal
protection both require the state to provide appellate counsel to
indigent defendants when the state provides a first appeal as of
right].) The California Supreme Court recently characterized
Griffin, supra, 351 U.S. 12, as an equal protection decision, and
concluded that on equal protection grounds an indigent criminal



                               16
(U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) These fees,
assessed as part of a larger statutory scheme to raise revenue to
fund court operations, should be treated no differently than their
civil counterparts enacted in the same legislation and imposed
only on those with the means to pay them. (See Jameson v.
Desta, supra, 5 Cal.5th 594, 622 [“[U]nder California law, when a
litigant in a judicial proceeding has qualified for in forma
pauperis status, a court may not consign the indigent litigant to a
costly . . . procedure that the litigant cannot afford and that
effectively negates the purpose and benefit of in forma pauperis
status”].)5

    II. The Execution of the Restitution Fine Must Be Stayed

      California law provides for two types of restitution: direct
restitution to the victim (Pen. Code, § 1202.4, subd. (f)), which is
based on a direct victim’s loss, and a restitution fine (Pen. Code,
§ 1202.4, subd. (b)), which is not. Payment of direct victim

defendant facing retrial is presumptively entitled to a full and
complete trial transcript. (People v. Reese (2017) 2 Cal.5th 660,
664-668.)

5      In Jameson v. Desta, supra, 5 Cal.5th at page 599, the
California Supreme Court ruled that the practice of denying court
reporters to indigent civil litigants with a fee waiver violates in
forma pauperis decisional law and the public policy of equal
access to the courts as articulated in Government Code
section 68630, subdivision (a). The Supreme Court observed that
courts “have the inherent discretion to facilitate an indigent civil
litigant’s equal access to the judicial process even when the
relevant statutory provisions that impose fees or other expenses
do not themselves contain an exception for needy litigants.” (Id.
at p. 605.)



                                 17
restitution goes directly to victims and compensates them for
economic losses they have suffered because of the defendant’s
crime. (People v. Giordano (2007) 42 Cal.4th 644, 651-652.)
Direct victim restitution was not ordered and is not at issue in
this case.
       Here, the trial court imposed a restitution fine on Dueñas.
Restitution fines are set at the discretion of the court in an
amount commensurate with the seriousness of the offense and
within a range set by statute. (Pen. Code, § 1202.4, subd. (b).) At
all times relevant to this matter, the minimum restitution fine
for a misdemeanor was $150 and the maximum restitution fine
was $1000. (Ibid.) Restitution fines are not paid to the victim of
the crime. Instead, they are paid into a statewide victim
compensation fund. (Pen. Code, § 1202.4, subd. (e).)
       Unlike the assessments discussed above, the restitution
fine is intended to be, and is recognized as, additional
punishment for a crime. (People v. Hanson (2000) 23 Cal.4th 355,
363.) When imposed on a probationer, restitution fines are
conditions of probation. (Pen. Code, § 1202.4, subd. (m).) Any
unpaid restitution fines remaining at the end of the probationary
term are enforceable as a civil judgment. (Pen. Code, § 1202.43;
People v. Willie (2005) 133 Cal.App.4th 43, 47-48.) A restitution
fine is a debt of the defendant to the state that may be enforced
by litigation or by offset against nearly any amount owed to the
defendant by a state agency, including tax refunds. (Pen. Code,
§ 1202.43, subd. (b); Gov. Code, §§ 12418, 12419.5.)
       “The principle that a punitive award must be considered in
light of the defendant’s financial condition is ancient.” (Adams v.
Murakami (1991) 54 Cal.3d 105, 113.) The Magna Carta
prohibited civil sanctions that were disproportionate to the




                                18
offense or that would deprive the wrongdoer of his means of
livelihood. (Ibid.) Yet, although Penal Code section 1202.4
permits the court to waive imposition of a restitution fine if it
finds “compelling and extraordinary reasons” why the fine should
not be imposed, the statute expressly states that inability to pay
the fine does not qualify:6 “A defendant’s inability to pay shall
not be considered a compelling and extraordinary reason not to
impose a restitution fine.” (Pen. Code, § 1202.4, subd. (c).) This
provision is at odds with the policy articulated in Penal Code
section 1203.2, subdivision (a): “Restitution shall be consistent
with a person’s ability to pay.”7
      As a result of Penal Code section 1202.4, subdivision (c)’s
prohibition on considering the defendant’s ability to pay the
minimum fine, the criminal justice system punishes indigent
defendants in a way that it does not punish wealthy defendants.
In most cases, a defendant who has successfully fulfilled the
conditions of probation for the entire period of probation has an

6     Under this statutory scheme, a trial court may only
consider a defendant’s ability to pay if the court is considering
imposing a restitution fine in excess of the statutory minimum
amount. (Pen. Code, § 1202.4, subd. (d).)

7      Penal Code section 1203.2, concerning probation
revocation, was amended in 1983 when the California Legislature
codified the decision in Bearden, supra, 461 U.S. 660. (Stats.
1983, ch. 568, § 2.5; People v. Cookson (1991) 54 Cal.3d 1091,
1096.) The Legislature did not just align California law with the
Bearden holding that probation cannot be revoked on the basis of
non-payment if the probationer is unable to pay; it also went
further by declaring that restitution shall be consistent with a
person’s ability to pay. (Stats. 1983, ch. 568, § 2.5; Pen. Code,
§ 1203.2, subd. (a).)



                                 19
absolute statutory right to have the charges against him or her
dismissed. (Pen. Code, § 1203.4, subd. (a)(1).) The defendant
must be “released from all penalties and disabilities resulting
from the offense with which he or she has been convicted,” with
the exception of driver’s license revocation proceedings. (Ibid.;
Veh. Code, § 13555.) But if a probationer cannot afford the
mandatory restitution fine, through no fault of his or her own he
or she is 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. Instead, the
indigent probationer must appeal to the discretion of the trial
court and must persuade the court that dismissal of the charges
and relief from the penalties of the offense is in the interest of
justice. (Pen. Code, § 1203.4, subd. (a)(1).)
       In this statutory scheme, therefore, the wealthy defendant
is offered an ultimate outcome that the indigent one will never be
able to obtain—the successful completion of all the terms of
probation and the resultant absolute right to relief from the
conviction, charges, penalties, and disabilities of the offense. At
best, indigent defendants who cannot pay their restitution fine
can try to persuade a trial court to exercise its discretion to grant
them relief, despite their failure to comply with all terms of
probation; at worst, they are deprived of relief, with all the
collateral consequences that the legislation was designed to
avoid. This result arises solely and exclusively from their
poverty.
       The statutory scheme thus results in a limitation of rights
to those who are unable to pay. The heart of the due process




                                 20
inquiry is whether it is “fundamentally unfair” to use the
criminal justice system to impose punitive burdens on
probationers who have “made all reasonable efforts to pay the
fine or restitution, and yet cannot do so through no fault of [their]
own . . . .” (Bearden, supra, 461 U.S. at p. 668.) Penal Code
section 1203.4 is not a substitute for due process.8
       The People minimize the difference between expungement
as of right and upon discretion in the interest of justice, asserting
that Dueñas “fails to explain why this discretionary relief would


8      Amicus Curiae Los Angeles County Public Defender argues
that imposing a restitution fine without evaluating the
defendant’s ability to pay also violates the bans on excessive fines
in the United States and California Constitutions. The due
process and excessive fines analyses are sufficiently similar that
the California Supreme Court has observed that “[i]t makes no
difference whether we examine the issue as an excessive fine or a
violation of due process.” (People ex rel. Lockyer v. R.J. Reynolds
Tobacco Co. (2005) 37 Cal.4th 707, 728.) In the excessive fine
context, the exercise of state power to impose penalties must be
“procedurally fair and reasonably related to a proper legislative
goal.” (Hale v. Morgan (1978) 22 Cal.3d 388, 398.) When
deciding if fines are constitutionally disproportionate under the
excessive fines clause, one of the four criteria is the defendant’s
ability to pay. (Reynolds, at p. 728.) A minimum restitution fine
that is imposed with a prohibition on considering a primary
criterion in ensuring constitutionally appropriate fines is neither
procedurally fair nor reasonably related to any proper legislative
goal. Imposing a restitution fine on “someone who through no
fault of his own is unable to make restitution will not make
restitution suddenly forthcoming” (Bearden, supra, 461 U.S. at
pp. 670-671), and the state has no “legitimate interest in building
inescapable debt traps” for indigent residents. (Thomas v.
Haslam, supra, 329 F.Supp.3d at p. 521.)



                                 21
be denied to those who demonstrate an inability to pay in their
expungement applications.” But given that restitution is a
condition of probation, and the restitution statute instructs the
trial court that a defendant’s inability to pay is an illegitimate
consideration in imposing the minimum restitution fine, it is not
at all clear that a trial court would treat inability to pay as a
legitimate consideration in determining whether it is in the
interest of justice to relieve a non-paying defendant from the
charges and penalties of his or her offense.9 Indeed, the superior
court appellate division observed in this case that the “denial of
discretionary expungement” was one of the many “negative
consequences” that “[c]ertainly . . . can flow from a defendant’s
failure to pay [the] mandatory fine and fees.” (People v. Dueñas
(Sept. 1, 2017, BR052831) [nonpub. opn.], p. 7.)
       We acknowledge, as do the parties, that the Vehicle Code
section Dueñas violated makes her ineligible for mandatory relief
upon her completion of probation. This does not change our
conclusion, however, because the trial court here indicated that it
would neither consider Dueñas’s inability to pay the restitution
fine nor relieve her of it at the close of probation, stating that “[i]f
in the end you’re not able to pay,” the fine and fees “will go to
collections without any further order from this court.” (Italics
added.)
       We interpret statutes to avoid serious constitutional
questions when such interpretations are fairly possible. (People
v. Buza (2018) 4 Cal.5th 658, 682; People v. Gutierrez (2014) 58


9      Some courts might even consider it an abuse of discretion
to relieve a party of the obligation to pay a fine on the basis of a
factor expressly excluded from consideration in imposing that
fine.



                                  22
Cal.4th 1354, 1373-1374.) Accordingly, we hold that although the
trial court is required by Penal Code 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. We invite the Legislature to consider
whether the statute should be amended to direct a trial court to
consider the defendant’s ability to pay in imposing the fine.10




10     Although a number of courts have ruled or stated that a
trial court lacks the statutory authority to stay an assessment, a
fee, and a restitution fine (see, e.g., People v. Sweeney (2014) 228
Cal.App.4th 142, 154-155; People v. Woods (2010) 191
Cal.App.4th 269, 272); that assessments and fees are statutorily
mandated (People v. Rodriguez (2012) 207 Cal.App.4th 1540,
1543, fn. 2;); or that imposing a restitution fine without
consideration of ability to pay does not violate the equal
protection clause (People v. Glenn (1985) 164 Cal.App.3d 736,
739-740), none of these cases presented a due process challenge
to Penal Code section 1202.4 based on the statute’s preclusion of
considering a defendant’s inability to pay the minimum
restitution fine amount. To the extent that People v. Long (1985)
164 Cal.App.3d 820 remains viable despite its reliance on
multiple statutes that have since been amended, we respectfully
disagree with its due process analysis.



                                 23
                         DISPOSITION

      We reverse the order imposing assessments under
Government Code section 70373 and Penal Code section 1465.8.
We remand the case to the trial court with directions to stay the
execution of the Penal Code section 1202.4 restitution fine unless
and until the People prove that Dueñas has the present ability to
pay it.



                                     ZELON, Acting P. J.



We concur:



      SEGAL, J.



      WILEY, J.*




*     Associate Justice of the Court of Appeal, Second Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.



                                24
