Filed 5/27/20




                       CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                     F076252
        Plaintiff and Respondent,
                                                          (Super. Ct. No. BF150700A)
                  v.

JOSEPH SON,                                                        OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
        Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Carlos A.
Martinez and Eric L. Christoffersen, for Plaintiff and Respondent.
                                          -ooOoo-




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of the Fact section and parts I, II, and III of
the Discussion section.
       Son challenges his conviction for voluntary manslaughter on grounds that trial
counsel committed structural error under McCoy v. Louisiana (2018) 138 S.Ct. 1500
(McCoy). He further argues the trial court prejudicially erred in failing sua sponte to
instruct the jury on involuntary manslaughter. We reject these contentions.
       Son also asks us to independently review the trial court’s rulings, as well as the
sealed transcripts and documents, related to a Pitchess motion filed by trial counsel.1 We
have done so and found no impropriety in the court’s inquiry and rulings.
       Finally, Son challenges, under People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas), the trial court’s imposition, without conducting an ability to pay hearing, of
court operations and court facilities assessments, as well as a restitution fine. With regard
to the court assessments, we conclude imposition of these assessments, without first
giving the defendant an opportunity to request an ability to pay hearing to show he
cannot pay them, is unconstitutional. Accordingly, remand is required to give Son an
opportunity to request an ability to pay hearing. On remand, should Son request such a
hearing and show he cannot pay the court operations and court facilities assessments at
issue, the court must vacate them. In the event Son does not request an ability to pay
hearing, or requests such a hearing but fails to show he cannot pay the relevant court
assessments, they shall remain in effect. As for the restitution fine, we conclude that, in
contrast to the court assessments, an ability to pay hearing is not constitutionally required
before imposition of the restitution fine. We therefore affirm the restitution fine imposed
in this matter.
       The matter is remanded for further proceedings consistent with this opinion. The
judgment is otherwise affirmed.



1      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

                                              2
                               PROCEDURAL HISTORY
       Son was charged, by an amended information filed in the Kern County Superior
Court, with committing, on October 10, 2011, while serving a life sentence, the crime of
assault, with malice aforethought and by means of force likely to produce great bodily
injury. (Pen. Code, § 4500.)2 The information also alleged that Son had an August 25,
2011 conviction for torture (§ 206) that qualified as both a strike prior (§§ 667, subds.
(c)-(j) & 1170.12, subds. (a)-(e)) and as a serious felony prior (§ 667, subd. (a)).
       A jury found Son not guilty of the charged offense but guilty of the lesser included
offense of voluntary manslaughter. (§ 192, subd. (a).) In a bifurcated proceeding, the
trial court found the prior conviction allegations to be true.
       Son, who was already serving a life term in prison, was sentenced to 22 years on
the voluntary manslaughter conviction (double the upper term of 11 years). (§ 193, subd.
(a).) In addition, he was sentenced to five years on the serious felony enhancement
allegation. (§ 667, subd. (a).) His aggregate sentence in the instant case was 27 years, to
be served consecutive to the life term he was serving in a prior case.
                                          FACTS
A.     Cellmates at Wasco State Prison
       On October 10, 2011, Bradley Winters was working as a correctional officer at
Wasco State Prison in Kern County. He was one of three “floor officers” in Baker
Building 5, which housed about 200 inmates, with two inmates per cell. The cell doors
could only be opened by an officer in the control booth. Son and Michael Graham
occupied cell 228. On that same side of the building, there was a temporary overflow
section, known as the “T-bunk” area, that housed approximately 30 inmates.

2      All subsequent statutory references are to the Penal Code unless otherwise
specified.
      See footnote, ante, page 1.

                                              3
B.     Son’s Request for a Cell Change
       That afternoon, Winters was working the third “watch” or shift, which ran from
2:00 p.m. to 10:00 p.m.3 Beginning at about 4:45 p.m., he conducted a head count of
inmates to ensure they were all present. This usually took 15 minutes and had to be
completed and reported by 5:00 p.m. Inmates were supposed to stand and show their I.D.
cards. The cell doors remained closed.
       When Winters reached cell 228, Son was standing, but Graham remained lying on
his lower bunk with his head facing the door and his hands on his chest or stomach.
Winters made eye contact with Graham but did not make him stand, as Winters did not
want to lose mental track of the count.4
       Son asked to be moved to a different cell, but Winters explained that cell moves,
with the exception of “emergency moves,” were done on the second watch. Son was,
however, “adamant” that he wanted to move as he had found a cellmate on the other side
of the building. Winters, in response, advised Son to talk to the “second watch” officer.
        Since Wasco is a “reception center,” new inmates arrived continuously and
needed to be housed. Consequently, non-emergency or “[c]onvenience moves” were a
“fairly common occurrence,” and were overseen by a “housing officer” during the second
watch. Winters did not detect any emergency in connection with Son’s request to move
to a different cell. Nor did Son indicate there was an emergency, or even suggest he was
having problems with Graham. Had Son indicated there was an emergency, the
revelation would have prompted Winters to abandon the headcount and “immediately”
separate the cellmates. Son had not asked Winters for a cell move on any other occasion.

3      There were three watches: 10:00 p.m. to 6:00 a.m. (first watch); 6:00 a.m. to 2:00
p.m. (second watch); and 2:00 p.m. to 10:00 p.m. (third watch).
4      Winters accurately noted in a watch logbook that Graham was lying down during
the count. He knew, however, that he would get into trouble for not having Graham
stand. Subsequently, he did in fact receive a letter of reprimand for the lapse.

                                            4
C.     Graham’s Death
       About 20 minutes later, when Winters was in his office, he heard inmates from the
T-bunk area yelling “man down” and pointing to cell 228. Winters went to cell 228 and
saw Son washing his hands in the sink at the front of the cell; Son was also yelling “man
down.” Son moved to the back of the cell, then returned to the front to wash his hands
again. Graham was still lying on his bunk in about the same position as before. His eyes
were open and appeared to be looking up, and his palms were along his sides. He
showed no visible signs of life.
       Winters reported a medical emergency (“Code 1 medical”). Son remarked to
Winters, “I told you I need to move.” Son appeared calm and was not “worked up at all.”
He did not look scared, nor was he breathing hard. He never said he was attacked or hurt.
       An officer in the control booth opened the door of Son’s cell. Son was
handcuffed—he needed two sets of handcuffs because he was “big, stocky,” and
“hefty”—and taken to a holding cell.5 Medical staff arrived and unsuccessfully
performed CPR on Graham.
       Nurse Laura Bernal noticed that Graham showed no signs of life and was “cool to
the touch,” which usually occurs “a little time” after death. Physically, he seemed
“[f]rail.” Bernal noted Graham had “bruises all over [his upper torso]” and his “chest
was collapsed in,” something she had never seen before. In attempting to administer
CPR, Bernal discovered that Graham’s chest had “no resistance.” There was “no bone
structure”; rather “[i]t had the consistency of … jello.”
       Sergeant Bill Eveland similarly noticed bruising all over Graham’s torso, along
with the fact that the center of Graham’s “chest was kind of concave, abnormal looking.”
Eveland and three other officers carried Graham to a gurney; Graham was taken to the

5     Son was approximately 5’5’’ tall and weighed 235 pounds. Graham was 5’9’’ tall
and weighed 161 pounds.

                                              5
prison’s emergency room, where he was declared dead. Son, who was in a holding cell,
remarked to Eveland: “Is he dead? He fell down twice and I helped him up.”
       Son was searched for contraband (including weapons) but none was found. Nor
were any injuries detected on his body. Officer Robert Zaragoza photographed cell 228,
which had been padlocked following Graham’s death. Zaragoza determined that
“nothing was disturbed” in the cell. He explained: “[T]here was no struggle as I viewed
the cell inside; however, I have been in numerous cells when I’ve done crime scenes, and
I’ve discovered different evidence whereas this one I didn’t discover anything that would
lead me to believe there was a struggle involved.” Zaragoza did not find any weapons in
the cell or in the toilet. Zaragoza did, however, discover two letters sent to Son by
another inmate, discussing the possibility of Son moving to a different cell.6
D.     Graham’s Autopsy
       Forensic pathologist Robert Whitmore performed an autopsy on Graham’s body.
Dr. Whitmore determined that the cause of death was “multiple blunt force trauma,” that
in turn caused bleeding and impaired Graham’s ability to breathe. Dr. Whitmore’s
conclusions were based on numerous injuries to Graham’s chest, abdomen, and neck.
Each of Graham’s lungs had a large bruise and the lower lobes were internally torn,
which would have required “[a] large force” because the chest had to be “completely
compressed” to cause such damage. Graham suffered “multiple fractures” to his ribs and
bled internally. His sternum was fractured twice, which was the reason his chest
appeared concave. There was a hemorrhage to the pericardium, normally protected by
the rib cage. There was a large periaortic hematoma to the superior mesenteric artery,
contusions to the vena cava, bleeding in the intestinal cavity, a subscapular hematoma on
the liver, a lacerated spleen, and contusions to the duodenum and large bowel. Graham’s

6      Since his arrival on September 16, 2011, at Wasco State Prison, Son had three
other cellmates before he was housed with Graham on September 26, 2011.

                                             6
neck muscles had hemorrhaged, which was “consistent with strangulation or an attempted
strangulation or a grabbing of the neck or a blow to the neck.” Graham had no injuries to
his hands.
       Dr. Whitmore clarified that the chest injuries Graham suffered were not caused by
CPR. He explained, a “large force” was “applied to the chest” to cause these injuries.
The macerated lungs were not caused by CPR, but by squishing the chest so completely
that it was rendered “flat.” As for the “sternal fractures,” while those could occur with
CPR, “a twice fractured sternum” was “not very common in CPR. In addition, the fact
that Nurse Bernal noticed a depression in Graham’s chest before she commenced CPR
demonstrated that the injuries were not caused by CPR. Dr. Whitmore also noted that
Graham suffered from chronic hepatitis C and associated liver cirrhosis, which would
make a person weak and cause the person to bleed and bruise more easily than he would
otherwise. However, Dr. Whitmore clarified that these diseases would not make rib and
sternum fractures more likely, nor would they make tissues more prone to tearing.
       Following Graham’s death, Son was incarcerated at Corcoran State Prison. There,
he told Officer Alonzo Aranda that he knew martial arts and would get Aranda tickets to
his fights when he got out of prison. Son talked about his knowledge of martial arts with
Aranda on at least three occasions. Son also told Aranda that were the latter to encounter
problems with inmates, he should put them in Son’s cell and Son “would take care of ‘em
like he did his last cellie.”
E.     Defense
       Son took the stand in his own defense and explained he was first arrested in 2008
and incarcerated in the county jail for three and a half years until he was sentenced to
state prison. Once in prison, he was attacked on nine occasions by inmates and learned it
was better for him to lose a fight because otherwise, as an Asian, he would suffer severe
retaliation. When Son was moved to cell 228, his cellmate, Graham, repeatedly berated

                                             7
him with racial epithets, told him to leave, and beat him. Graham had also noted that he
was suicidal and had no problem killing himself as well as Son. Officer Winters,
however, refused to move Son despite Graham’s abusive conduct.
       On the day in question, Graham attacked Son with a knife. Son managed to take it
away and slammed Graham hard against a wall and hit him “at least eight to twelve times
nonstop” in the torso. Thereafter, the two made up and Graham flushed the knife down
the toilet. Graham subsequently fell down, twice. Son helped him up both times and
then summoned officers for help.
       Son acknowledged he was convicted of two felony crimes of moral turpitude in
2008 and torture in 2010; he had lied to the Huntington Police Department about his
involvement in the latter. Son described himself as a “nonviolent” person. Nonetheless,
he admitted that his conviction for torture stemmed from a Christmas Eve incident in
which he raped a woman three times with the help of his cohorts and held a gun to her
head. He further admitted he remained at large for 19 years after the rape and did not
turn himself in to authorities. Prior to his apprehension, he fought in martial arts cage or
ring matches that essentially had “no rules.”
       Nurse Joni Jones testified that Graham had been prescribed Cogentin, Risperdal,
and Venlafaxine (Effexor). He had recently been on suicide watch at Wasco State Prison,
had a history of being suicidal, and was hospitalized in Vacaville on three or four
occasions for being a danger to himself.
       Forensic toxicologist, Dr. John Treuting, explained that Graham had been
prescribed Risperidone, which is used to treat schizophrenia, and Venlafaxine for “major
depression.” Dr. Treuting determined that Graham’s toxicology level for Venlafaxine
(and its byproduct, O-desmethylvenlafaxine) was “significantly higher” than the
therapeutic level, which may cause hostility, agitation, and suicidal inclination.



                                                8
F.     Rebuttal
       On April 15, 2016, at Donovan State Prison, Son went “ballistic” because an
officer told him not to cover up his cell window. Son called the officer “the ‘N’ word”
and threatened to “beat … [his] ass.”
       On May 3, 2017, at Lancaster State Prison, an officer observed Son run down the
stairs, notwithstanding his use of a wheelchair during the instant trial.
                                        DISCUSSION
I.     Alleged Error Under McCoy v. Louisiana
       Son raises a claim of structural error under McCoy v. Louisiana, supra, 138 S.Ct.
1500. In McCoy, the Supreme Court of the United States held that the defendant had the
right, under the Sixth Amendment, to insist that his trial counsel, during the guilt phase of
a capital trial, refrain from conceding that the defendant had committed the three murders
charged in that case, even though counsel reasonably believed that conceding guilt
afforded the defendant the best chance to avoid a death sentence. The high court
explained that a defendant who “insist[s] on maintaining [his] innocence at the guilt
phase of a capital trial,” cannot be forced by counsel to concede guilt. (McCoy at p.
1508.) The high court noted that defense counsel can make strategic choices regarding
how best to achieve a defendant’s objectives, but the defendant chooses those objectives.
(Ibid.) McCoy further held that the trial court’s error, in allowing trial counsel to concede
the defendant’s guilt despite the latter’s persistent objections and contrary testimony, was
structural, in that the defendant was entitled to a new trial irrespective of the existence of
prejudice.
       Son argues reversal is required under McCoy because his “defense counsel
selected, with the trial court’s approval, to pursue self-defense as a trial defense theory


      See footnote, ante, page 1.

                                              9
when Son’s objective of his defense was to assert innocence.” (Unnecessary
capitalization omitted.) Applying de novo review, we reject this contention. (McCoy,
supra, 138 S.Ct. at p. 1511.)
       A.     Factual Background
       The complaint initiating this case was filed on September 9, 2013. On July 2,
2014, the People declared they would seek the death penalty against Son. On August 14,
2015, the People reversed their position and declared they would not seek the death
penalty. The preliminary hearing occurred on November 18, 2015. The original
information, charging Son with one count of assault, with malice aforethought, by a
prison inmate serving a life term, and alleging a prior strike sentence enhancement, was
filed on November 24, 2015. An amended information adding a prior serious felony
sentence enhancement was filed on October 21, 2016. Jury trial commenced on July 10,
2017, and ended on July 24, 2017.
       Son bases his McCoy claim on statements made in Marsden and Marsden/Faretta
hearings that occurred during the infancy of this case, specifically on May 21, 2014, and
June 26, 2014, over three years before the July 2017 trial. (People v. Marsden (1970) 2
Cal.3d 118 (Marsden); Faretta v. California (1975) 422 U.S. 806.)
       In a Marsden hearing held on May 21, 2014, Son told the court defense counsel
was exploring a self-defense theory for Son’s defense. Son was not in favor of a self-
defense theory and emphatically disagreed with defense counsel’s exploration of this
theory. Regarding the incident underlying the charge, Son explained: “I didn’t do it.
Never touched the guy.” Son continued: “I’m like there’s got to be a better defense to
this, especially when I never touched the guy.” Son complained defense counsel was not
listening to him and had his “own agenda,” adding “I told him from the git-go I didn’t
touch him, I didn’t do it.”
       Defense counsel, for his part, explained to the court:

                                            10
              “It makes sense to me as an officer of the court and to diligently
       pursue every defense for Mr. Son that two gentlemen were in a cell and one
       is accused to have beaten the other to death, no one had access to the cell –
       those are at least the accusations—that I would have a job to pursue self-
       defense claims. I had started doing that. So the Court knows, I’ve been
       tracking down the alleged victim Michael Thomas Graham’s criminal
       record, which includes some violent offenses in both San Luis Obispo
       County, San Bernardino County, Santa Clara and San Francisco.

               “I believe in a death penalty case, I have a duty to pursue that. I’m
       not saying we are not going to pursue Mr. Son’s defense. He wasn’t there
       in the cell or the cell door was open, I’m not saying that. But I also am
       trying to explain to him why I’m doing what I’m doing.”
       Thereafter, the court and defense counsel had the following exchange:

       “THE COURT: [Defense counsel], pursuing a defense, you are looking at
       all defenses, including self-defense, including Mr. Son wasn’t there,
       including Mr. Son had nothing to do with it, even if he was there?

       “[DEFENSE COUNSEL]: Yes.

       “THE COURT: You have not made up your absolute mind if this is going
       to be a self-defense case?

       “[DEFENSE COUNSEL]: No, I have not. I’m just trying to keep an open
       mind.”
The court denied the Marsden motion.
       Thereafter, at a June 26, 2014 Marsden/Faretta hearing, the court asked Son to
explain his contention that he should be allowed to represent himself because of a conflict
of interest with counsel. The following exchange then took place:

       “THE DEFENDANT: I think there’s trust issues. I clearly told [defense
       counsel] the very first day I met him that I’m innocent, that I didn’t beat the
       guy up, and it’s as though he never heard me because he’s telling me he
       wants to do a self-defense. And I didn’t repeat myself after he told me that
       because I’m, like, ‘wow.’

       “THE COURT: Okay. So your attorney is recommending that you at least
       pursue one avenue, of raising a self-defense, as a defense, and you don’t
       wish to do that because you perceive that’s inconsistent with your position

                                             11
         that you did not do what you’ve been accused of; would that be a fair
         statement?

         “THE DEFENDANT: Right.

         “THE COURT: All right.

         “THE DEFENDANT: It’s like he’s not even hearing me. He wants to do
         his own thing.”
The court granted the Faretta motion; however, the same defense counsel was later
reappointed.
         Another Marsden hearing was held approximately three years later, on July 12,
2017, after jury selection but before the evidentiary phase of the trial commenced. Son’s
statements to the court at this hearing were consistent, not with his statements at the early
Marsden and Marsden/Faretta hearings described above but, rather, with his trial
testimony, which occurred a few days later, on July 18, 2017. As summarized above,
Son testified at trial that, on the day in question, Graham attacked Son with a knife. Son
managed to take it away and slammed Graham from “wall to wall,” “slammed [him]
every direction,” as hard as he could. Son then “started striking” Graham; he “hit him at
least eight to twelve times nonstop,” as hard as he could, in the torso. Thereafter, the two
made up and Graham flushed the knife down the toilet. Graham subsequently fell down,
twice. Son helped him up both times and then summoned officers for help. Son testified
he was “not a killer” and “didn’t kill Mr. Graham.” He explained: “It was the heat of the
moment, the knife is there, I had to get him off of me and I swung as fast as I can. I
threw a burst of punches, 8 to 10.” He added: “I did not want Mr. Graham to die, but he
did, even though I tried my best to guarantee he wouldn’t die and not hit him in the face
or the neck. I didn’t stab him, I didn’t choke him, I didn’t hit him in the face, but he still
died.”
         Defense counsel’s closing argument was consistent with Son’s testimony. He
contended Graham “attacked” Son and “hit him.” He argued Son was “not a killer.” He

                                              12
explained: “There is no direct evidence that Son was trying to kill Graham. If you were
trying to kill someone, you would go for their face and their skull. He’s got a small
contusion right here and a tiny scratch on his head. That’s it.” Counsel argued that Son
acted to defend himself when Graham brought out a knife.
       B.     Analysis
       In McCoy, the defendant was charged with the first degree murder of three family
members. (McCoy, supra, 138 S.Ct. at p. 1506.) “Throughout the proceedings, he
insistently maintained he was out of State at the time of the killings and that corrupt
police killed the victims when a drug deal went wrong.” (Ibid.) But defense counsel
“eventually concluded that the evidence against McCoy was overwhelming and that,
absent a concession at the guilt stage that McCoy was the killer, a death sentence would
be impossible to avoid at the penalty phase.” (Ibid.) Defense counsel reported that
McCoy was “‘furious’” when told, two weeks before trial was scheduled to begin, that
counsel would concede McCoy’s commission of the triple murders. (Ibid.) McCoy told
counsel “‘not to make that concession,’” and counsel was aware of McCoy’s complete
opposition to telling the jury McCoy had killed the three victims; McCoy pressed counsel
to push for acquittal. (Ibid.) Two days before trial was set to begin, McCoy sought to
terminate counsel’s representation but the court denied the request, telling counsel,
“‘[y]ou are the attorney,’” and “‘you have to make the trial decision of what you’re going
to proceed with.’” (Ibid.)
       Once trial began, defense counsel told the jury in his opening statement that “there
was ‘no way reasonably possible’ that they could hear the prosecution’s evidence and
reach ‘any other conclusion than Robert McCoy was the cause of these individuals’
death.’” (McCoy, supra, 138 S.Ct. at p. 1506.) McCoy protested and, out of earshot of
the jury, told the court that counsel was “‘selling [him] out’” by maintaining he
“‘murdered [his] family.’” (Ibid.) The trial court reiterated that counsel was

                                             13
“‘representing’” McCoy and told McCoy the court would not permit “‘any other
outbursts.’” (Id. at p. 1507.) Continuing his opening statement, counsel told the jury the
evidence is “‘unambiguous,’ ‘my client committed three murders.’” (Ibid.) McCoy
testified in his own defense, “maintaining his innocence and pressing an alibi difficult to
fathom.” (Ibid.) In his closing argument, defense counsel reiterated that McCoy was the
killer. (Ibid.) The jury then returned a unanimous verdict of first degree murder on all
three counts. At the penalty phase, defense counsel again conceded, “‘Robert McCoy
committed these crimes,’ (citation), but urged mercy in view of McCoy’s ‘serious mental
and emotional issues.’” (Ibid.) The jury returned three death verdicts. (Ibid.)
         Under these circumstances, the McCoy court reversed the judgment. McCoy drew
a contrast between “[t]rial management,” which is “the lawyer’s province,” and
“decisions [that] are reserved for the client,” which include “whether to plead guilty,
waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” (McCoy,
supra, 138 S.Ct. at p. 1508.) McCoy clarified: “Autonomy to decide that the objective of
the defense is to assert innocence belongs in [the] latter category.” (Ibid.) McCoy
explained: “Just as a defendant may steadfastly refuse to plead guilty in the face of
overwhelming evidence against her, or reject the assistance of legal counsel despite the
defendant’s own inexperience and lack of professional qualifications, so may she insist
on maintaining her innocence at the guilt phase of a capital trial.” (Ibid.) The court
noted: “These are not strategic choices about how best to achieve a client’s objectives;
they are choices about what the client’s objectives in fact are.” (Ibid.) “For McCoy,
[the] objective was to maintain ‘I did not kill the members of my family.’” (Id. at p.
1510.)
         McCoy “opposed [defense counsel’s] assertion of his guilt at every opportunity,
before and during the trial, both in conference with his lawyer and in open court.”
(McCoy, supra, 138 S.Ct. at p. 1509.) Given this “stark scenario,” McCoy admonished

                                             14
that, “[p]resented with express statements of the client’s will to maintain innocence,”
“counsel may not steer the ship the other way.” (Id. at p. 1509.) In sum, McCoy held:
“[C]ounsel may not admit her client’s guilt of a charged crime over the client’s
intransigent objection to that admission.”7 (Id. at p. 1510.)
       The instant record is markedly different from that in McCoy. It shows that, in the
early stages of the case, in May and June, 2014, well before the preliminary hearing and
years before trial, Son was insistent he did not touch Graham and did not want defense
counsel to focus on self-defense in defending him; counsel, meanwhile, was investigating
various defenses, including self-defense, as the case was in its infancy. The record
further shows that, by the time of trial in July 2017, Son had clearly changed his mind, as
reflected in the July 12, 2017 Marsden hearing, as well as in his trial testimony a few
days later. Indeed, when Son took the stand, he acknowledged he had beaten Graham but
asserted he acted in self-defense and never intended to kill Graham. Defense counsel’s
closing argument was entirely consistent with Son’s own trial testimony. Importantly, at
the July 12, 2017 Marsden hearing, Son did not contest counsel’s proposed theory of
defense, nor did he object to counsel’s line of argument at trial. In short, aside from
Son’s initial remarks in 2014, there was no evidence of any persistent disagreement
between Son and counsel as to the theory of defense. On the contrary, the record
reasonably shows Son and defense counsel were ultimately in sync as to the theory of
defense presented to the jury. Therefore, Son has failed to show the existence of any
McCoy error here.8


7     Son’s trial, which occurred in July 2017, preceded McCoy, supra, 138 S.Ct. 1500,
which was decided on May 14, 2018. However, the People do not address the question
whether McCoy’s holding is retroactive. Accordingly, for purposes of our analysis, we
assume without deciding that McCoy is retroactive.
8     Furthermore, it is unclear whether McCoy error can even be predicated on
counsel’s decision to pursue a defense of self-defense, as the latter is not tantamount to an
                                             15
II.    Trial Court’s Failure to Instruct the Jury on Involuntary Manslaughter 
       Son argues the trial court committed prejudicial error in failing sua sponte to
instruct the jury on involuntary manslaughter, a lesser included offense of the charged
crime. (See People v. St. Martin (1970) 1 Cal.3d 524, 536; People v. Thomas (2012) 53
Cal.4th 771, 813 (Thomas).) He contends there was substantial evidence to show that,
rather than killing Graham with malice aforethought as charged, he committed only
involuntary manslaughter. (See Thomas, supra, at p. 813 [“An instruction on a lesser
included offense must be given only if there is substantial evidence from which a jury
could reasonably conclude that the defendant committed the lesser, uncharged offense but
not the greater, charged offense.”]; People v. Breverman (1998) 19 Cal.4th 142, 155
(Breverman) [“every lesser included offense, or theory thereof, which is supported by the
evidence must be presented to the jury”].)
       Son argues substantial evidence showed he committed only involuntary
manslaughter under three theories. First, citing People v. Blakeley (2000) 23 Cal.4th 82,
91, 96 (dis. opn. of Mosk, J.), he argues the killing was involuntary manslaughter because
it occurred due to “an unreasonable self-defense and with gross negligence, but without
malice.” Second, citing People v. Burroughs (1984) 35 Cal.3d 824, 835-836
(Burroughs), he argues that the killing was involuntary manslaughter because it was “an
unintentional killing during the course of a noninherently dangerous felony committed
with criminal negligence.”9 Finally, citing People v. Bryant (2013) 56 Cal.4th 959, 968,
971, he argues that the killing was involuntary manslaughter because it was “an

admission of guilt to a criminal offense but, rather, is an affirmative defense, which
results in outright acquittal unless the People disprove it beyond a reasonable doubt.
      See footnote, ante, page 1.
9       Burroughs was overruled on other grounds by People v. Blakely, supra, 23 Cal.4th
at p. 89.


                                             16
unintentional killing during the course of a felonious assault committed with criminal
negligence.” “‘We apply the independent or de novo standard of review to the failure by
the trial court to instruct on an assertedly lesser included offense.’” (People v. Licas
(2007) 41 Cal.4th 362, 366; People v. Campbell (2015) 233 Cal.App.4th 148, 158
[same]; People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers) [“We review the
trial court’s failure to instruct on a lesser included offense de novo [citations] considering
the evidence in the light most favorable to the defendant.”].) We reject Son’s contention
that the evidence warranted a sua sponte instruction on involuntary manslaughter.
       A trial court has a sua sponte duty to “‘“instruct the jury on all general principles
of law relevant to the issues raised by the evidence.”’” (People v. Avila (2009) 46
Cal.4th 680, 704.) This includes the duty to “instruct fully on all lesser necessarily
included offenses supported by the evidence.” (Breverman, supra, 19 Cal.4th at pp. 148-
149.) “In the interests of justice, this rule demands that when the evidence suggests the
defendant may not be guilty of the charged offense, but only of some lesser included
offense, the jury must be allowed to ‘consider the full range of possible verdicts—not
limited by the strategy, ignorance, or mistakes of the parties,’ so as to ‘ensure that the
verdict is no harsher or more lenient than the evidence merits.’” (Id. at p. 160.)
       Accordingly, if there is “‘“substantial evidence” [citation], “‘which, if accepted
…, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the
lesser,”’” then the trial court must give an instruction on the lesser included offense.
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) But “‘the existence of “any
evidence, no matter how weak” will not justify instructions on a lesser included
offense.…’ [Citation.] Such instructions are required only where there is ‘substantial
evidence’ from which a rational jury could conclude that the defendant committed the
lesser offense, and that he is not guilty of the greater offense.” (People v. DePriest
(2007) 42 Cal.4th 1, 50.) In other words, evidence is substantial if “a reasonable jury

                                             17
could find [it] persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8;
Breverman, supra, 19 Cal.4th at p. 162 [“the existence of ‘any evidence, no matter how
weak’ will not justify instructions on a lesser included offense, but such instructions are
required whenever evidence that the defendant is guilty only of the lesser offense is
‘substantial enough to merit consideration’ by the jury”].) “Doubts as to the sufficiency
of the evidence to warrant instructions should be resolved in favor of the accused.”
(People v. Wilson (1967) 66 Cal.2d 749, 763; see also People v. Rodriguez (1969) 274
Cal.App.2d 487, 497.)
       Here, Son was charged with assault committed with malice aforethought, resulting
in the victim’s death—effectively, a murder charge. Consequently, both the prosecutor
and defense counsel referred, in closing arguments, to the charged offense as amounting
to murder. The jury was instructed on malice aforethought—encompassing both express
and implied malice—as an element of the charged offense. Specifically, the jury was
instructed, in part: “There are two kinds of malice aforethought, express malice and
implied malice. Proof of either is sufficient to establish the state of mind required for this
crime. [¶] The defendant acted with express malice if he unlawfully intended to kill the
person assaulted. [¶] The defendant acted with implied malice if: One, he intentionally
committed an act; two, the natural consequences of the act were dangerous to human life;
three, at the time he acted, he knew his act was dangerous to human life; and, four, he
deliberately acted with conscious disregard for human life.” The jury was also instructed
that the charged killing or murder would be reduced to voluntary manslaughter if the
defendant had acted in the heat of passion or in imperfect self-defense.
       Brothers, supra, 236 Cal.App.4th at p. 30, clarified that “[b]oth voluntary and
involuntary manslaughter are lesser included offenses of murder.”10 Brothers further


10    Here, the parties agree that voluntary manslaughter as well as involuntary
manslaughter are lesser included offenses of both murder and the charged murderous
                                             18
explained: “When a homicide, committed with malice, is accomplished in the heat of
passion or under the good faith but unreasonable belief that deadly force is required to
defend oneself from imminent harm, the malice element is ‘negated’ or, as some have
described, ‘mitigated’; and the resulting crime is voluntary manslaughter, a lesser
included offense of murder.” (Ibid.; see § 192, subd. (a) [voluntary manslaughter].)
Involuntary manslaughter is the unlawful killing of a human being without malice.
(§ 192.) Involuntary manslaughter is statutorily defined as “the unlawful killing of a
human being without malice,” while engaged in the commission of either (1) “an
unlawful act, not amounting to a felony,” or (2) “a lawful act which might produce death,
in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b)
[involuntary manslaughter].) A person is guilty of involuntary manslaughter under the
first statutory theory when he or she commits a misdemeanor that “was dangerous to
human life or safety under the circumstances of its commission.” (People v. Cox (2000)
23 Cal.4th 665, 675.)
       “[W]hile a killing in the course of commission of a noninherently dangerous
felony does not appear to be precisely within one of these descriptions,” our Supreme
Court has held that “an unintentional homicide committed in the course of a
noninherently dangerous felony may properly support a conviction of involuntary
manslaughter, if that felony is committed without due caution and circumspection.”
(Burroughs, supra, 35 Cal.3d at p. 835.) In addition, “an unlawful killing in the course of
an inherently dangerous assaultive felony without malice” (not otherwise amounting to
felony murder) also constitutes involuntary manslaughter.11 (Brothers, supra, 236


assault under section 4500. For the purposes of our analysis, we will therefore assume,
without deciding, that involuntary manslaughter is a lesser included offense of the
charged crime.
11     The felony murder rule is generally inapplicable in such situations because, “when
the underlying felony is an assaultive crime, the assault merges with the homicide, and
                                            19
Cal.App.4th at p. 33.) However, as explained in Brothers, “when … the defendant
indisputably has deliberately engaged in a type of aggravated assault the natural
consequences of which are dangerous to human life, thus satisfying the objective
component of implied malice as a matter of law, and no material issue is presented as to
whether the defendant subjectively appreciated the danger to human life his or her
conduct posed, there is no sua sponte duty to instruct on involuntary manslaughter.” (Id.
at p. 35.) As explained below, Brothers is on all fours with the instant case and its
holding provides the rule of decision here. Under Brothers, an instruction on involuntary
manslaughter was not warranted in this case.
       In Brothers, the defendant, Brothers, had given the victim, Gates, who was
homeless, a place to live on her property. Subsequently, the defendant heard Gates had
sexually molested her grandchildren. The defendant immediately summoned Gates, and
along with other family members, beat Gates up. (Brothers, supra, 236 Cal.App.4th at
pp. 27-28.) The defendant struck Gates “in the head and face multiple times with a
broomstick with such force the stick broke in half.” (Id. at p. 28.) Other family members
beat Gates “about the face and body,” and one of them “shoved a large cloth gag down
Gates’s throat, causing him to suffocate.” (Ibid.) The coroner who conducted the
autopsy on Gates’s body, “opined Gates had died of asphyxiation due to airway
obstruction and other contributing factors, including blunt force trauma.” (Ibid.) “The
jury acquitted Brothers of murder and found her guilty of voluntary manslaughter.” (Id.

application of the felony-murder rule is prohibited.” (Brothers, supra, 236 Cal.App.4th
at p. 31; see People v. Ireland (1969) 70 Cal.2d 522, 539 [to allow use of felony murder
rule when underlying felony is assault would preclude jury from considering the issue of
malice in all cases where the homicide resulted from felonious assault, a category that
includes the great majority of homicides; “[t]his kind of bootstrapping finds support
neither in logic nor in law”].) “This prohibition of the application of the felony-murder
rule to underlying assaultive felonies resulting in death, identified in People v. Ireland,
supra, 70 Cal.2d at p. 539; is known in our jurisprudence as the Ireland merger doctrine.”
(Brothers, supra, 236 Cal.App.4th at p. 31, fn. 5.)

                                             20
at p. 29.) “On appeal Brothers contend[ed] the court erred in failing to instruct the jury
sua sponte on involuntary manslaughter.” (Id. at p. 26.)
       The Brothers court squarely addressed the question whether “a homicide
committed without malice during the course of an inherently dangerous assaultive felony
not otherwise amounting to felony murder was involuntary manslaughter.” (Brothers,
supra, 236 Cal.App.4th at p. 33.) Brothers concluded such a homicide was indeed
involuntary manslaughter. (Id. at pp. 33-34.) Thus Brothers explained: “Accordingly,
an instruction on involuntary manslaughter as a lesser included offense must be given
when a rational jury could entertain a reasonable doubt that an unlawful killing was
accomplished with implied malice during the course of an inherently dangerous
assaultive felony.” (Id. at p. 34, italics added.) But Brothers cautioned that, ““‘the
existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser
included offense”’”; rather, “‘[s]uch instructions are required only where there is
“substantial evidence” from which a rational jury could conclude’ the defendant
committed the lesser, but not the greater, offense.” (Ibid.)
       Brothers argued substantial evidence warranted an instruction on involuntary
manslaughter, given her testimony to the effect she did not know “‘this was going to
happen.’” (Brothers, supra, 236 Cal.App.4th at p. 34.) The Brothers court rejected her
claim because, “assuming Brothers meant she did not intend to kill Gates, intent to kill is
an element of express, not implied, malice.” (Ibid.) Brothers noted “malice is implied
when the defendant engages in an act the natural consequences of which are dangerous to
life and acts with conscious disregard for human life.” Brothers concluded, “there was
simply no evidence from which a reasonable juror could entertain a reasonable doubt
that Brothers had acted in conscious disregard of the risk her conduct posed to Gates’s
life.” (Ibid., italics added.)



                                             21
       The Brothers court explained that “Brothers’s own account unequivocally
established she engaged in a deliberate and deadly assault.” (Brothers, supra, 236
Cal.App.4th at p. 34.) More specifically, Brothers “admittedly beat Gates repeatedly on
the head and face with the large wooden broom handle with great force, causing blunt
force trauma the deputy coroner testified was a contributing cause of death.” (Ibid.) The
court further noted, “[t]here was no evidence of an accidental killing, gross negligence or
Brothers’s own lack of subjective understanding of the risk to Gates’s life that her and
her confederates’ conduct posed.” (Ibid.) The court therefore held: “On this record, the
trial court had no sua sponte duty to instruct the jury on involuntary manslaughter.”
(Ibid.; see People v. Guillen (2014) 227 Cal.App.4th 934, 1028 [involuntary
manslaughter instruction unwarranted when the evidence left no room for reasonable
doubt that the defendant acted with intent to kill or conscious disregard for human life];
see generally People v. Evers (1992) 10 Cal.App.4th 588, 596 [“If a defendant commits
an act endangering human life, without realizing the risk involved, the defendant has
acted with criminal negligence. By contrast where the defendant realizes and then acts in
total disregard of the danger, the defendant is guilty of murder based on implied malice”
unless the malice is otherwise negated by heat of passion or imperfect self-defense.].)
       Brothers summed up its holding as follows: “In sum, when the evidence presents
a material issue as to whether a killing was committed with malice, the court has a sua
sponte duty to instruct on involuntary manslaughter as a lesser included offense, even
when the killing occurs during the commission of an aggravated assault. [Citations.]
However, when, as here, the defendant indisputably has deliberately engaged in a type of
aggravated assault the natural consequences of which are dangerous to human life, thus
satisfying the objective component of implied malice as a matter of law, and no material
issue is presented as to whether the defendant subjectively appreciated the danger to
human life his or her conduct posed, there is no sua sponte duty to instruct on involuntary

                                            22
manslaughter. [Citations.] Otherwise, an involuntary manslaughter instruction would be
required in every implied malice case regardless of the evidence.” (Brothers, supra, 236
Cal.App.4th at p. 35, italics added; see People v. Cook (2006) 39 Cal.4th 566, 596
[“[Defendant] savagely beat [the victim,] to death. Because the evidence presented at
trial did not raise a material issue as to whether [the] defendant acted without malice, the
trial court was not obliged, on its own initiative, to instruct the jury on involuntary
manslaughter as to [the victim].”].)
       Under Brothers’s holding, an involuntary manslaughter instruction was not
warranted in the instant case either. Just as in Brothers, on the instant record, no rational
jury could find that Son acted merely with criminal negligence. Indeed, even crediting
Son’s testimony in its entirety, “there was simply no evidence from which a reasonable
juror could entertain a reasonable doubt that [Son] had acted in conscious disregard of
the risk [his] conduct posed to [Graham’s] life.” (Brothers, supra, 236 Cal.App.4th at p.
34, italics added.) Son admitted he savagely beat Graham, just as the defendant in
Brothers admitted she had brutally beaten Gates. Son practiced mixed martial arts in
professional “no rules” cage- and ring-fights; he testified he had “knock out capacity in
both [his] arms.” Son acknowledged that physically he had the capacity to easily knock
out Graham, who was not a mixed martial arts fighter (as Son conceded). Son testified he
slammed Graham from “wall to wall,” “slammed [him] every direction,” as hard as he
could. Thereafter, Son “didn’t want to give [Graham] a chance to swing at [him],” so he
just “let it go and started striking.” He hit Graham in the torso “at least eight to twelve
times nonstop,” again as hard as he could. Son explained, “[i]t was very fast and very
rapid and very hard.” He also said he had been trained to hit fast, rapid, and hard.
       Graham suffered grievous injuries, revealing the brutality of the beating he
suffered. Son’s blows caused Graham’s chest to collapse and pulverized it. Nurse
Bernal, the first person to perform CPR on Graham, said she had “[n]ever” encountered

                                              23
such severe chest injuries before. When Bernal performed CPR, Graham’s chest gave
“no resistance.” Bernal explained: “There’s no bone structure. It had the consistency of
like jello.” This was an unprecedented experience for Bernal in rendering CPR.
       The forensic pathologist who performed the autopsy of Graham’s body also
described shocking injuries. He opined the manner of death was homicide and the cause
of death was “multiple blunt force trauma.” The pathologist testified that both lungs
were significantly bruised and the lower lobes of each were “torn inside, macerated.” He
said these injuries were unusual and it would have taken a “large force” to lacerate a
lung. He explained the lungs lie “in between the front and the back chest wall[s]” and
“the walls have to come together and squish the lungs in between” to cause such injuries.
In addition, Graham sustained “multiple fractures” of the rib cage, along with internal
bleeding, indicating the fractures occurred while he was still alive. “The sternum was
fractured twice, one at the upper portion and one at the lower portion,” resulting in the
chest appearing concave. The pericardium, i.e., the sack in which the heart resides, had
hemorrhaged, which was “indicative of a large force being applied to the chest.”
Significant bruising and large contusions were evident around the aorta, the largest artery
in the body, as well as around the inferior vena cava, the largest vein in the body, which
injuries were consistent with blunt force trauma. In addition, Graham suffered bleeding
in the intestinal cavity, a subcapsular hematoma (“blood blister”) on the liver, a lacerated
spleen, and contusions on the duodenum and large bowel. These organs are relatively
well protected inside the human body and do not bruise easily; however, in this instance
they were damaged from blunt force impact. Graham’s neck muscles had also
hemorrhaged, which was “consistent with strangulation or an attempted strangulation or a
grabbing of the neck or a blow to the neck.”
       At the same time, Son did not raise a material issue as to whether he subjectively
appreciated the danger to human life his conduct posed. On the contrary, Son was

                                             24
experienced in mixed martial arts, had engaged in professional mixed martial arts fights,
and had well-developed physical capabilities. It was also clear that Graham was “frail”
and weakened, as he suffered from hepatitis C and associated end-stage liver cirrhosis.
Despite the physical disparity between Graham and Son, Son repeatedly slammed
Graham into walls and hit Graham non-stop, as hard as he could.
       In short, the evidence indisputably showed that Son “deliberately engaged in a
type of aggravated assault the natural consequences of which are dangerous to human
life, thus satisfying the objective component of implied malice as a matter of law, and no
material issue [was] presented as to whether [he] subjectively appreciated the danger to
human life [that his] conduct posed.” (Brothers, supra, 236 Cal.App.4th at p. 35.)
Accordingly, a sua sponte instruction on involuntary manslaughter was not warranted and
the trial court did not err in omitting one.
       Even assuming the court was required to give an involuntary manslaughter
instruction, failure to do so would be harmless on the instant record. Failure to instruct
on a lesser included offense supported by substantial evidence constitutes state-law error
and is analyzed under the Watson standard of prejudice. (People v. Gonzalez (2018) 5
Cal.5th 186, 195-196 (Gonzalez), citing People v. Watson (1956) 46 Cal.2d 818, 836-
837; Thomas, supra, 53 Cal.4th at p. 814, fn. omitted [“The failure to instruct on a lesser
included offense in a noncapital case does not require reversal ‘unless an examination of
the entire record establishes a reasonable probability that the error affected the
outcome.’”].) “‘Such posttrial review focuses not on what a reasonable jury could do, but
what such a jury is likely to have done in the absence of the error under consideration. In
making that evaluation, an appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable



                                               25
probability the error of which the defendant complains affected the result.’” (Thomas,
supra, at p. 814.)
       Here, the evidence revealed a brutal attack that resulted in unusually severe
internal injuries and a pulverized, jello-like chest, which reflected the use of major force
and the likes of which medical personnel had never seen before. At the same time, there
was no evidence showing the killing was accidental, gross negligence on Son’s part, or a
lack of understanding on Son’s part regarding the risk his conduct posed to Graham’s
life. Under these circumstances, had the jury been instructed on involuntary
manslaughter, there is no reasonable probability Son would have obtained a more
favorable verdict.12
III.   Son’s Pitchess Motion13
       Son notes he filed, on July 11, 2017, a Pitchess motion for certain personnel
records of Department of Corrections Officer Alonzo Aranda. Specifically, Son asked
for personnel records reflecting “dishonesty, falsifying reports, official misconduct, and
[use of] excessive force.” (Pitchess, supra, 11 Cal.3d 531.) Son asks us to
“independently review the sealed transcripts and documents” related to the court’s
Pitchess inquiry, to determine the propriety of the court’s rulings on his underlying
motion. The People have “no opposition” to this request.
       We review a trial court’s Pitchess rulings for abuse of discretion. (People v.
Prince (2007) 40 Cal.4th 1179, 1286; People v. Hughes (2002) 27 Cal.4th 287, 330
(Hughes).) If the trial court finds good cause to review an officer’s confidential


12     Since we have addressed Son’s claim of instructional error on the merits, we need
not address his alternative claim that counsel was ineffective in failing to request an
instruction on involuntary manslaughter.
13     Pitchess, supra, 11 Cal.3d 531.
      See footnote, ante, page 1.

                                             26
personnel records, the court must, for purposes of appellate review, make a record of the
materials it examined. (People v. Mooc (2001) 26 Cal.4th 1216, 1229-1230.) We
subsequently review the “documents examined by the trial court” to determine whether
the trial court abused its discretion in refusing to disclose the contents of the personnel
records it reviewed in the first instance. (Id. at p. 1229; Hughes, supra, at p. 330.)
       We have reviewed the transcripts of the Pitchess hearing the court held on July 19,
2017, in connection with Son’s motion for relevant personnel records of Officer Aranda.
At the Pitchess hearing, the court reviewed the official personnel file of Officer Aranda
maintained at the Corcoran State Prison. The court also confirmed that the custodians of
record for the prison had made a thorough search for all personnel records for Officer
Aranda.
       The trial judge did not include a copy of the records he reviewed, in the record of
this case. Therefore, after this appeal was briefed, as part of creating a settled statement
of the Pitchess proceeding, the superior court contacted the Department of Corrections to
obtain the personnel file for purposes of our independent review. The trial judge who
originally ruled on Son’s Pitchess motion, certified that the Department of Corrections
provided two envelopes of documents, one of which contained the personnel file the
judge had reviewed at the Pitchess hearing. The second envelope contained additional
documents that were not before the trial court at the Pitchess hearing. We have reviewed
all the documents provided by the Department of Corrections for purposes of this appeal.
None of the documents are within the scope of Son’s Pitchess motion concerning Officer
Aranda. Therefore, we cannot say the trial court abused its discretion in failing to
disclose to Son any personnel records concerning Officer Aranda.
IV.    Fines and Fees
       In common with a great many other cases, this case raises the issues decided in
Dueñas, supra, 30 Cal.App.5th 1157, involving the constitutionality of imposing court

                                              27
assessments and restitution fines as adjuncts to convicted defendants’ sentences
regardless of ability to pay. Dueñas is an innovative decision that has brought judicial
attention across the state to bear on an important problem. In our view, one aspect of its
holding correctly identifies a constitutional deficiency that has been overlooked in the
past, while another is incompatible with controlling authority. In a nutshell, assessments
designed as user fees to fund the courts (here, the court operations and court facilities
assessments) cannot be administered to criminal defendants without regard to ability to
pay, just as other cost-recovery charges that bear on access to the criminal process—such
as fees for trial records to be used on appeal—cannot. But fines imposed as punishment
(here, the restitution fine) are subject to the existing constitutional rule that monetary
punishments in and of themselves need not be adjusted in accordance with ability to pay.
       A.     Synopsis of Analysis
       Son, at sentencing, was ordered to pay a $30 court facilities assessment (Gov.
Code, § 70373), a $40 court operations assessment (§ 1465.8), and a restitution fine in the
minimum statutory amount of $280 (§ 1202.4, subd. (b)).14 Citing Dueñas, Son argues
that the imposition of the assessments and fine without a prior hearing to determine his
ability to pay them contravened the guaranties of due process of law and equal protection
of the laws contained in the state and federal constitutions.
       We agree with Dueñas in part. As we explain in more detail below, there is a
constitutional difficulty with the imposition of the court operations assessment and the
court facilities assessment without a prior determination of a defendant’s ability to pay.
The implementation of these assessments—which are designed to function as user fees—
without regard to ability to pay, places a greater burden on those who cannot pay than on

14      The court also imposed and stayed a matching $280 parole revocation restitution
fine (§ 1202.45, subd. (a)). However, because this fine is essentially a corollary of the
restitution fine imposed under section 1202.4, subdivision (b), we will not separately
address it. (See § 1202.45, subd. (a).)

                                              28
those who can. A solvent defendant who is ordered to pay the assessments suffers the
loss of the assessment amounts, but an indigent defendant under the same order
experiences the web of consequences of being a delinquent debtor—loss of access to
credit, declarations of delinquency on other debts that have cross-default provisions,
actual defaults on other debts caused by the strain of attempting to satisfy the court-
imposed debt, harm to employment and housing relationships and prospects, loss in some
cases of opportunities for expungement of convictions and early termination of probation,
and more—and is still on the hook for the court-ordered payment, plus collection fees
and interest.
       This means it is more costly in real terms for indigent convicted defendants to
have had access to courts in which to defend themselves, than it is for solvent convicted
defendants to have had the same access. The situation is no different than it would be if,
for instance, the cost of the court reporter’s transcript was not waived for an indigent
criminal appellant but instead became a debt payable to the court upon affirmance of the
underlying conviction. Just as the latter situation would be prohibited by United States
Supreme Court precedents holding that the right of access to the criminal courts is a
fundamental right and its exercise cannot constitutionally be curtailed on the basis of
ability to pay, so too is the imposition, without regard to ability to pay, of user fees in the
form of court assessments, prohibited by these precedents.
       On the other hand, it is not unconstitutional to impose the restitution fine without
regard to ability to pay. Unlike the court assessments discussed above, the restitution fine
is not a user fee collected from those who must use the courts, to fund the courts. Rather,
it has been classified by our Supreme Court as a form of punishment. Furthermore, the
United States Supreme Court has stated that the states’ enforcement of judgments arising
from unpaid fines imposed as punishment, is not constitutionally limited by the indigency
of defendants. A statutory regime under which an unpaid, punitive fine is converted

                                              29
automatically to a jail term, regardless of ability to pay, is not constitutional; nor is a
scheme whereby a fine is a condition of probation, and failure to satisfy that condition
leads to incarceration, regardless of ability to pay. But we are not faced with situations
like those in this case, as the restitution fine imposed here is a monetary form of
punishment that, if unpaid, would result, not in incarceration, but in a monetary judgment
against the defendant.
       In sum, our constitutional jurisprudence draws a critical distinction between user
fees (in the form of nonpunitive court assessments) and monetary punishments (in the
form of punitive fines), because imposition of the former implicates the constitutional
right of access to the courts while imposition of the latter does not. Accordingly, we
agree with Dueñas to the extent it holds that, under the Constitution, a defendant must
have the opportunity to request an ability to pay hearing before court assessments are
imposed at sentencing. However, in light of the United States Supreme Court precedents
clarifying that, under the Constitution, indigency is not a bar to enforcement of monetary
judgments arising from unpaid fines imposed as punishment, we disagree with Dueñas to
the extent it further holds an ability to pay hearing is constitutionally required before
imposition of the restitution fine.
       B.     Dueñas Opinion
       Dueñas was convicted of one misdemeanor count of driving with a suspended
license. The trial court placed her on 36 months’ summary probation with 30 days in jail
and a $300 fine as probation conditions, but offered to impose nine more days in jail as
an alternative to the fine. Dueñas was disabled, unemployed, and homeless; she, her
husband, and their two children lived alternately at her mother’s home and his mother’s
home; and they had no money other than subsistence benefits they spent on basic
necessities. Her clothing and telephone were her only assets. Her driver’s license had
long been suspended because of three citations she had received as a minor and had never

                                               30
been able to pay. She had served jail time in lieu of fines in the past for driving while
unable to pay these citations, and for each such conviction, assessments and fees were
added that she also was unable to pay. She agreed to take the nine extra days in jail
instead of adding another $300 to the unpayable debts. But there was no way for her to
avoid the addition of a $30 court facilities assessment (Gov. Code, § 70373), a $40 court
operations assessment (§ 1465.8), a $150 restitution fine (§ 1202.4), and a probation
revocation restitution fine, stayed pending completion of probation (§ 1202.44).
(Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.)
       Dueñas asked the trial court for a hearing on her ability to pay the assessments and
the fine. A hearing was eventually held and the court found Dueñas indigent based on
her uncontested declaration. The court waived outstanding fees that had been imposed on
her in prior cases to pay for the services of the public defender. It concluded, however,
that the court facilities assessment and court operations assessment were mandatory
regardless of ability to pay. It also determined that, despite the inability to pay, there
were no “compelling and extraordinary reasons” as required by section 1204.4 for waiver
of the restitution fine. (Dueñas, supra, 30 Cal.App.5th at p. 1163.)
       The Court of Appeal reversed. It observed that the court facilities assessment and
court operations assessment have been held to be nonpunitive fundraising measures, but
also pointed out that for those unable to pay, they are punitive in effect, imposing
hardship never experienced by those who can pay. This hardship is not limited to the
unpayable indebtedness itself, but includes collection practices that can destroy the
defendant’s access to credit, interfere with higher-order commitments, such as the
responsibility to make child care support payments, damage employment prospects and
employment relationships, and otherwise impair the defendant’s ability to be productive
and functional after serving his or her time. (Dueñas, supra, 30 Cal.App.5th at pp. 1164-



                                              31
1168.) And the restitution fine, though distinct from direct victim restitution, is
acknowledged by our Supreme Court as being frankly punitive. (Id. at pp. 1169-1170.)
       The appellate court ruled that a judicial finding of a present ability to pay
assessments and fines is required before a defendant can be ordered to pay them, despite
the mandatory language in the statutes and the lack of a statutory provision requiring a
finding of ability to pay. Imposing requirements that are formally the same for all
defendants but have punitive consequences for the indigent alone is “fundamentally
unfair.” (Dueñas, supra, 30 Cal.app.5th at p. 1168.) As Dueñas had in fact already been
found indigent by the trial court, the assessments were simply reversed. For the
restitution fine, the court concluded that the express language prohibiting use of inability
to pay as a consideration for the sentencing court could best be reconciled with
constitutional requirements by having the trial court impose the fine and stay it until, at
some later time when Dueñas’s circumstances might have changed, the People might be
able to demonstrate her ability to pay at a hearing convened by the court for that purpose.
(Dueñas, supra, at pp. 1168-1169, 1172-1173.)
              (i)     Dueñas’s Reliance on Griffin v. Illinois
       In reaching its conclusion, the Dueñas court discussed two distinct categories of
legal precedents. The first category is represented by Griffin v. Illinois (1956) 351 U.S.
12 (Griffin), in which the United States Supreme Court held that the due process and
equal protection clauses of the Fourteenth Amendment guarantee an indigent criminal
appellant access to the entire record of his or her trial, including the court reporter’s
transcripts of the live proceedings, at no cost, since there would be no opportunity to
bring an effective appeal without these materials or some form of equivalent. (Id. at pp.
18-20.) Griffin is based on what later became known as the basic or fundamental right of
access to the criminal (and in limited situations civil) courts, which, under both a due
process analysis and an equal protection analysis, the government cannot deny based on

                                              32
inability to pay fees. (See, e.g., Tennessee v. Lane (2004) 541 U.S. 509, 522 (Tennessee)
[access to courts one of the “basic constitutional guarantees, infringements of which are
subject to more searching judicial review”]; M.L.B. v. S.L.J. (1996) 519 U.S. 102, 110-
116 [summarizing development of doctrine on basic right to access to courts].)
       The Dueñas court maintained that although the assessments and fine at issue did
not prevent Dueñas from using the court to defend against the charges, they still burdened
her exercise of the right of access to the court in a way, and to a degree, that a solvent
defendant’s exercise of the right would not be burdened, and therefore contravened the
principle underlying Griffin. As will be seen, this is the part of Dueñas we accept, but
only as to the assessments, which are correctly classified as nonpunitive fees, given the
purpose (court funding) they are designed to serve.
       The Griffin analysis is, however, inapplicable to the restitution fine, which is a
monetary punishment and serves a punitive purpose. Since, unlike the court assessments,
it is not a user fee is designed to fund the courts, it does not implicate the right of access
to the courts. Stated differently, when the Legislature creates a monetary charge to be
imposed as punishment for crime, the charge cannot logically be thought of as affecting a
defendant’s access to the courts, regardless of whether the defendant is indigent or not.
Such a fine, regardless of what the proceeds are actually used for by the state, is not in
any sense a financial condition or user fee imposed on defendants’ exercise of the right of
access to the courts. Instead, it is a punishment imposed for defendants’ crimes. In view
of this distinction, the United States Supreme Court has held that the indigency of a
defendant is no bar to enforcing a money judgment for a punitive fine against a defendant
who is unable to pay it.
              (ii)    Dueñas’s Reliance on In re Antazo & Bearden v. Georgia
       The second category of cases the Dueñas court relied on is represented by In re
Antazo (1970) 3 Cal.3d 100 (Antazo) and Bearden v. Georgia (1983) 461 U.S. 660

                                              33
(Bearden). The central concept in these cases is the fundamental unfairness of situations
in which a defendant is incarcerated solely because of his or her inability to pay fines and
other exactions imposed by criminal courts. In Antazo, a prisoner was serving time in a
county jail after a trial court placed him on probation, conditioned on payment of a fine
of $2,500 plus a penalty assessment of $625. He could not pay, so the court allowed him
to satisfy the probation condition instead by serving one day in jail for each $10 of the
unpaid amount. (Antazo, supra, 3 Cal.3d at pp. 103-105.) Our Supreme Court held that
giving an indigent defendant a “Hobson’s choice” between incarceration and paying fines
he could not afford, violated the equal protection clause of the Fourteenth Amendment.
(Antazo, supra, at pp. 103-104.) “[O]ur holding,” the court stated, “is simply that an
indigent who would pay his fine if he could, must be given an option comparable to an
offender who is not indigent.” (Id. at p. 116.) In other words, in any situation in which a
solvent defendant would be offered a choice between payment and imprisonment, an
indigent defendant cannot constitutionally be confronted with imprisonment as the only
outcome that is a practical possibility.
       In Bearden, the trial court placed the defendant on three years’ probation,
conditioned on payment of a $500 fine and $250 in restitution. He paid the first $200
with a loan from his parents, but was soon laid off from his job and, being illiterate and
having only a ninth-grade education, could not find another. He had no income and no
assets and did not pay the remaining debt before the deadline. After a hearing, the court
applied a statute requiring automatic revocation of probation, entered the defendant’s
conviction, and remanded him into custody to serve the remainder of the three-year
period. (Bearden, supra, 461 U.S. at pp. 661-664.) The United States Supreme Court
held that “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

                                             34
punishing the defendant are available.” (Id. at pp. 668-669.) This holding was an
extension of a preexisting rule that a court cannot “‘“[impose] a fine as a sentence and
then automatically [convert] it into a jail term solely because the defendant is indigent
and cannot forthwith pay the fine in full.”’” (Id. at p. 667.) The court cited both the due
process clause and the equal protection clause of the Fourteenth Amendment as bases for
the outcome. (Bearden, supra, at pp. 665-667.)
       The Dueñas court sought to analogize the unfairness described in these cases to
the unfairness of the indigent having to shoulder a burden, the burden of being delinquent
debtors and experiencing all the consequences of that status, that those with means to pay
do not shoulder. However, for punishment fines like the restitution fine in this case, the
analogy to the situations addressed in Antazo and Bearden does not work for the reason
indicated above: the effects of enforcing monetary punishments against defendants who
cannot pay them have been held not to be of constitutional concern. Such monetary
punishments do not implicate the right of access to the courts as explained above; nor do
they, in and of themselves, implicate any other fundamental right, such as the right to
liberty, which is implicated when a defendant actually faces incarceration solely for
failing to pay a punitive fine. (See Antazo, supra, 3 Cal.3d at p. 115.)
       It is unnecessary to consider whether Dueñas’s attempt to analogize Dueñas’s
plight to the situations in Antazo and Bearden might work in assessing the
constitutionality of the court revenue assessments, since, as discussed above, we are
already holding that these assessments are invalid without a determination (at the
defendant’s request) of ability to pay, under Griffin, because of the unequal burdens their
imposition places on the court-access rights of the indigent and non-indigent,
respectively.




                                             35
       C.     The Court Facilities and Operations Assessments as User Fees: Griffin
              and the Fundamental Right of Access to the Courts15
       Griffin is about charging criminal defendants for access to the court system
whether they can afford it or not. It would be an exaggeration to say Griffin controls
resolution of the issue of the constitutionality of the court facilities and operations
assessments here; however, Griffin’s holding can logically be extended to resolve this
question. The only real difference between Griffin and the instant scenario is that the
relevant fees were assessed prior to court access in Griffin and after access here. The
point is that, in both instances, payment was demanded despite indigence, which is the
basis for analogizing the two situations.
       Griffin and Crenshaw—the co-defendants in Griffin—were convicted of armed
robbery. Like all other convicts in Illinois, they were entitled to appeal from their
convictions. It was undisputed that their appeals could not be prosecuted without a
stenographic transcript of the trial proceedings, and that they lacked the means to pay for
a transcript. The state did not provide free transcripts to the indigent. (Griffin, supra,
351 U.S. at pp. 13-16.)
       The high court held that by creating this obstacle to mounting a criminal appeal for
the indigent—an obstacle that did not exist for appellants with means to pay—the state
violated, under the due process and equal protection clauses of the Fourteenth
Amendment, the indigent defendants’ right to use or access the criminal process.
(Griffin, supra, 351 U.S. at pp. 16-20.) Observing that providing equal justice for rich
and poor is a problem centuries old, the lead opinion16 stated:


15     See J. Snauffer’s concurring opinion regarding his concurrence in this part of
section IV.
16      Four justices signed the lead opinion written by Justice Black. Justice Frankfurter
concurred in the result and submitted an opinion stating reasoning broadly similar to that
of the lead opinion. (Griffin, supra, pp. 13, 20.)

                                              36
       “[O]ur own constitutional guaranties of due process and equal protection
       both call for procedures in criminal trials which allow 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, supra, 351 U.S. at p. 17, italics added.)
       Subsequent cases applied Griffin to other fees and costs of using the criminal
courts. (E.g., Burns v. Ohio (1959) 360 U.S. 252 [indigent defendant could not be
charged filing fee for motion for leave to appeal to state supreme court from judgment of
intermediate appellate court]; Douglas v. California (1963) 372 U.S. 353 (Douglas)
[indigent defendants entitled to appointed appellate counsel]; Lane v. Brown (1963) 372
U.S. 477 [unconstitutional to condition free transcript for indigent defendant seeking to
appeal from denial of postconviction relief, on consent of public defender]; Roberts v.
LaVallee (1967) 389 U.S. 40 [indigent defendant entitled to free transcript of preliminary
hearing for use at trial]; Mayer v. Chicago (1971) 404 U.S. 189 [indigent defendant
entitled to adequate record with no fee to appeal from conviction although a fine, not
incarceration, was the only punishment provided by the statute of conviction].)
       The purpose of the requirement challenged in Griffin, i.e., that appellants cover the
cost of trial transcripts, was simply to get the transcripts paid for by those who used them,
in effect a user fee. There was no suggestion that collecting the cost of transcripts from
appellants had anything to do with punishing them. In other words, the price of a
transcript paid by appellants was effectively the same as an administrative fee collected
from litigants to cover part of the state’s costs of furnishing the proceedings.
       California’s assessments for court costs, although levied only against the
convicted, have been held by California courts merely to be user fees charged to a large
segment of court users for the purpose of funding the courts, and not to be any part of
convicted defendants’ punishments. This conclusion is consistent with the statements of
purpose contained in the assessment statutes themselves. (People v. Alford (2007) 42

                                             37
Cal.4th 749, 757; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492-1494; Pen. Code,
§ 1465.8; Gov. Code, § 70373.)
       As non-punitive incidents to utilization of the courts, imposed to cover certain of
the courts’ operating costs, the court facilities and operations assessments are like the
transcript fees in Griffin. They are a part of the cost imposed on litigants for going
forward. The difference is that in Griffin the cost blocked indigent defendants from
going forward, while in the situation before us, the cost for use of the court is collected at
the end of the proceedings, so indigent defendants instead receive an unpayable debt
burden.
       For indigent defendants, such a debt burden means they “pay” more for their
admission ticket to defend themselves, and do so based on their indigence alone. In
People v. Neal (2018) 29 Cal.App.5th 820 (Neal) (involving a statutory right to an ability
to pay hearing for a probation supervision fee (§ 1203.1b)), the Court of Appeal
described consequences for defendants who cannot pay a fee that far outstrip the
monetary deprivation experienced by those who can. (The fees at issue in Neal were not
conditions of probation (Neal, supra, at p. 826), so, as with the assessments here,
nonpayment could not lead directly to incarceration.) Neal explained:

               “As legislative and other policymakers are becoming increasingly
       aware, the growing use of such 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. ... [¶]... 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.’ [Citation.] As observed in a recent study regarding
       administrative fees in juvenile proceedings in California, ‘Fee debt

                                              38
       becomes a civil judgment upon assessment. If families do not pay the fees,
       counties refer the debt to the state Franchise Tax Board, which garnishes
       parents’ wages and intercepts their tax refunds. Under state law, these fees
       are meant to help protect the fiscal integrity of counties. They are not
       supposed to be retributive (to punish the family), rehabilitative (to help the
       youth) or restorative (to repay victims).’ [Citation.] [This study] also
       points out that ‘[b]ecause Black and Latino youth are overrepresented and
       overpunished ... in the juvenile system, families of color bear a
       disproportionate burden of the fees’ and the inordinate debt these families
       incur ‘correlates with a greater likelihood of recidivism, even after
       controlling for case characteristics and youth demographics.’” (Neal,
       supra, 29 Cal.App.5th at pp. 827-828, fn. omitted, italics added.)
To bear the extra costs described in Neal, as part of the price of being tried, is not to
“‘stand on an equality before the bar of justice.’” (Griffin, supra, 351 U.S. at p. 17.)
       It has been held, contrary to our view, that the fees challenged in Griffin affected
the defendants’ right to access to the appellate courts only because they were imposed
before the proceeding and, if unpaid, precluded the latter in the first place, whereas the
assessments at issue here are not levied until after conviction, so inability to pay does not
burden the right to court access:

       “Dueñas drew what we regard as an inapt analogy between court
       assessments imposed following a criminal conviction and fees that, if
       imposed on indigent litigants or criminal defendants, impede their access to
       the courts in the first place. The Legislature and courts rightly are
       concerned when filing fees and other court costs prevent indigent
       individuals from having their day in court. Fees imposed after a case is
       completed, and judgment entered, however, do not deprive defendants of
       access to justice. (See [People v.] Santos [(2019)] 38 Cal.App.5th [923,]
       937 (dis. opn. of Elia, J.) [‘a convicted person’s inability to pay a court
       operations assessment or a court facilities assessment [does not] in any way
       impact that person’s ability to access the courts’]; People v. Gutierrez
       (2019) 35 Cal.App.5th 1027, 1039 (conc. & dis. 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’].)” (People v. Caceres (2019) 39 Cal.App.5th 917, 927.)
       In other words, once a charging document has been filed, a defendant is going to
be using the court one way or another, like it or not. But we do not think that distinction

                                              39
obviates the constitutional violation. The fact that the differential burden on access is of
a different kind here—a higher price in the form of a web of counterproductive hardships,
rather than a lock on the door—does not make it constitutional. It seems very improbable
that in Griffin, the state could have cured its violation by charging for trial transcripts
after the appeal was over rather than before it began, and converting the charge to a debt
for those unable to pay. We are not aware of any authority stating that where imposition
of court fees on the indigent is unconstitutional, a loan would be as good a constitutional
fix as a waiver.
       New Jersey did, in fact, attempt to respond to Griffin in something like this
manner. Rinaldi v. Yeager (1966) 384 U.S. 305 was a challenge to a New Jersey statute
under which those convicted of felonies and sentenced to prison terms—and no others—
were required to pay transcript fees, without regard to ability to pay, after unsuccessful
appeals. The high court deliberately avoided the question of whether this scheme was
inconsistent with Griffin because it placed a burden on the exercise of the right to appeal
that was effectively heavier for the indigent than for others. It decided instead that there
was an equal protection violation because the fees were imposed only on those who got
prison sentences; all other convicts did not have to pay. The court’s analysis was that the
classification of those who got prison sentences versus those who did not, lacked a
rational basis. (Rinaldi, supra, 384 U.S. at pp. 306-309.) Nevertheless, in summing up,
the court stated: “We may assume that a State can validly provide for recoupment of the
cost of appeals from those who later become financially able to pay. But any such
provision must, under the Equal Protection Clause, be applied with an even hand.” (Id. at
p. 311, italics added.) Thus, even when declining to decide whether a state could solve
its Griffin problem by charging a fee after a proceeding instead of before, the high court
still assumed a determination (at the time of sentencing or thereafter) of ability to pay
(present or future) would have to be made before the fee could be assessed and collected.

                                              40
       Another context in which the constitutionality of laws requiring defendants to pay
costs of using the criminal courts is that of recoupment of the cost of providing appointed
counsel. Statutes of this kind have been upheld, but the fact that they require a prior
finding that the defendant is able to pay, or at some time will be able to pay, is among the
reasons for their validity. (See, e.g., Fuller v. Oregon (1974) 417 U.S. 40, 52-54;
Donovan v. Commonwealth (Ky.App. 2001) 60 S.W.3d 581, 584-585.) The California
statute on that topic (§ 987.8) has been upheld against a constitutional challenge for this
reason, among others. (People v. Amor (1974) 12 Cal.3d 20, 26.)
       Griffin and some of its progeny were accompanied by dissents to the effect that
under classical liberal capitalism, the political and economic system our Constitution
presupposes as its foundation, the government has no responsibility to equalize wealth
and thus none to mitigate the differential effects on the rich and the poor of the costs of
using the criminal process. According to these dissents, it was not incompatible with our
constitutional order to make access to various aspects of the criminal process difficult or
impossible for some yet possible or easy for others. (See, e.g. Griffin, supra, 351 U.S. at
pp. 34-39 (dis. opn. of Harlan, J.); Douglas, supra, 372 U.S. at pp. 360-363 (dis. opn. of
Harlan, J.).) As one dissenter put it, laws under which expense renders parts of the
criminal process inaccessible to the indigent “do not deny equal protection to the less
fortunate for one essential reason: the Equal Protection Clause does not impose on the
States ‘an affirmative duty to lift the handicaps flowing from differences in economic
circumstances.’ To so construe it would be to read into the Constitution a philosophy of
leveling that would be foreign to many of our basic concepts of the proper relations
between government and society.” (Douglas, supra, 372 U.S. at p. 362 (dis. opn. of
Harlan, J.).) The same justice wrote of the “natural disabilities” and “natural
disadvantages” afflicting the indigent in legal and other matters, deficiencies that he
argued a state had no obligation, under the Constitution, to “alleviat[e]” or “remove.”

                                             41
(Griffin, supra, 351 U.S. at pp. 34-36.) And in another curious aside about what is and is
not natural in the sphere of equality and inequality in the context of access to the criminal
courts, a different justice referred to the holding of Douglas (and, presumably, similar
cases) as “this new fetish for indigency.” (Douglas, supra, 372 U.S. at p. 359 (dis. opn.
of Clark, J.).)
       The basic philosophical orientation reflected in these dissents was, however, never
adopted by the high court, at least in the context of the right of access to the courts. Even
at the peak of the cold war—when these seminal cases on the right of access to the courts
were decided—a time when official and public enmity to the ideology of the Soviet
Union was at its high water mark and every form of social equity might be mislabeled
“communist” by some, the high court never went so far as to say “tough luck” to the poor
in the context of access to the criminal courts.
       The Supreme Court’s majority can thus be said to have chosen deliberately, over
the protestations of colleagues, to somewhat remove the issue of access to the criminal
courts from the influence of individuals’ relative success or failure as participants in a
market economy. It has never wholly removed it from that influence, of course. The
Constitution is not violated by the fact that some defendants can afford better
representation than others, for example. The case law is instead about establishing limits
beyond which the influence of criminal defendants’ financial condition must not extend.
In this case, we deal not with the ability to afford things and services that make a
proceeding meaningful—like trial transcripts or counsel on appeal—but with something
even more basic: the ability to afford the admission ticket. The assessments at issue
here, exacted from convicted defendants to help defray court costs, have been framed by
our Legislature and courts as the price of simply being a party defendant who has
litigated unsuccessfully. The debt is imposed regardless of the defendant’s ability to pay,
and thus is equal in a formal and superficial sense; the reality is that the cost is much

                                              42
greater for those for whom the dollar figure is unaffordable than for those for whom it is
affordable. In short, administrative, revenue-raising debt imposed on the convicted for
merely having participated in the criminal process contributes to the financial ruin of the
indigent, while being entirely affordable for others.17 Dueñas correctly placed this kind
of court-access user fee in the column of those exactions the differential effect of which
upon the indigent and not-indigent must be constitutionally controlled, as a matter of due
process and equal protection. Our system does not contemplate burdens imposed for the
use of courts in which to defend oneself against criminal charges (or enter into a
negotiated settlement thereof) to fall most heavily upon the indigent.

17      It can be easy to lose sight of the meaning of “indigent” in dollars and cents when
analyzing these issues, and to be guilty of a failure of imagination when sizing up the
constitutional significance of imposing debts on the poor. Justice Marshall, dissenting in
United States v. Kras (1973) 409 U.S. 434 (Kras), from the holding that the equal
protection and due process clauses of the Fourteenth Amendment did not require a waiver
for the indigent of a $50 filing fee for bankruptcy, made this point. The majority,
disregarding undisputed facts in the record, insisted that Kras must really have been able
to scrape together less than a couple of dollars per week to pay the filing fee in
installments, as the bankruptcy court allowed. It compared this amount to the price of a
movie ticket or one or two packs of cigarettes. Marshall responded:

               “It may be easy for some people to think that weekly savings of less
       than $2 are no burden. But no one who has had close contact with poor
       people can fail to understand how close to the margin of survival many of
       them are. A sudden illness, for example, may destroy whatever savings
       they may have accumulated, and by eliminating a sense of security may
       destroy the incentive to save in the future. A pack or two of cigarettes may
       be, for them, not a routine purchase but a luxury indulged in only rarely.
       The desperately poor almost never go to see a movie, which the majority
       seems to believe is an almost weekly activity. They have more important
       things to do with what little money they have—like attempting to provide
       some comforts for a gravely ill child, as Kras must do.

              “It is perfectly proper for judges to disagree about what the
       Constitution requires. But it is disgraceful for an interpretation of the
       Constitution to be premised upon unfounded assumptions about how people
       live.” (Kras, supra, 409 U.S. at p. 460 (dis. opn. of Marshall, J.).)
                                            43
       Griffin was decided before the United States Supreme Court developed its familiar
framework of three levels of review (rational basis review, intermediate scrutiny, and
strict scrutiny) for substantive due process and equal protection cases. In fact, all the
United States Supreme Court cases we have found holding that fees or costs burdening
court access for the indigent violate the due process or equal protection clauses of the
Fourteenth Amendment, reached their conclusions without using that framework. The
framework can readily be applied to the constitutional problem presented here, however,
and it leads to the same result as to the constitutionality of the court assessments as we
reached above. As discussed below, applying the “levels of scrutiny” framework also
counters the argument that there is no infringement of the right of access to the criminal
courts because the assessments in question are levied at the end of the proceeding at
issue, not before it begins, and thus do not serve to block court access. We will focus on
the equal protection clause, but the high court has noted that “[d]ue process and equal
protection principles converge in the Court’s analysis” in cases considering the
constitutionality of the differential impact of fines and fees, and the same results are
reached under both the due process and equal protection clauses. (Bearden, supra, 461
U.S. at p. 665.)
       Strict scrutiny applies in an equal protection case when the challenged law uses a
suspect classification to burden discriminatorily any of a wide variety of rights and
interests, or uses any classification to burden discriminatorily a fundamental right, within
the meaning of the terms “suspect” and “fundamental” as developed in case law on equal
protection and substantive due process principles. (Plyler v. Doe (1982) 457 U.S. 202,
216-218.) Higher versus lower economic status or financial means is not a suspect
classification. (San Antonio Independent School Dist. v. Rodriguez (1973) 411 U.S. 1,
27-28.) Access to courts, however, has been recognized by the Supreme Court as one of
the “basic constitutional guarantees, infringements of which are subject to more searching

                                             44
judicial review”—meaning, it is a fundamental right, triggering strict scrutiny, for
purposes of equal protection and substantive due process analysis. (Tennessee v. Lane,
supra, 541 U.S. at p. 522.)
       Under strict scrutiny, the use of a classification to discriminate18 in burdening a
fundamental right (or the use of a suspect classification), can be upheld only if that use is
narrowly tailored to support a compelling governmental interest. (Grutter v. Bollinger
(2003) 539 U.S. 306, 326.) A challenged use of a classification is narrowly tailored,
generally speaking, if there are no alternative means of adequately serving the compelling
interest that would impose a lesser burden on the constitutional interest in question. (See,
e.g., Wygant v. Jackson Board of Education (1986) 476 U.S. 267, 283-284.)
       Turning to the constitutionality of the court assessments, the state’s interest in
funding the courts may be assumed to be compelling. But the funding mechanism here
challenged—imposition of the assessments on convicted defendants without regard to
ability to pay—does not come close to being narrowly tailored or necessary to serve that
compelling governmental interest. There are many possible funding mechanisms that the
state can tap to fund court operations that would not burden, at all, the exercise by
indigent defendants of the right to access the courts. Waivers for indigent convicts is an

18      In this context, unlike in most others (see Washington v. Davis (1976) 426 U.S.
229, 242), discrimination that violates the equal protection clause need not be intentional
discrimination. There is generally no reason to suppose that the imposition of fees
burdening access to courts is intended by state governments to discriminate against the
poor. But the United States Supreme Court has explained that the requirement of
intentional discrimination does not apply where, as in the case of the distinction between
those who can and cannot pay a particular charge, one hundred percent of the members of
the disfavored group are subject to the disfavorable treatment and one hundred percent of
the members of the favored group are not—as a matter of definition. In this situation,
there is no need to establish discriminatory intent as an element of a constitutional
violation. (M.L.B. v. S.L.J., supra, 519 U.S. at pp. 125-127 [“[U]nder respondents’
reading of Washington v. Davis, our overruling of the Griffin line of cases would be two
decades overdue.”].)

                                             45
obvious, but hardly the only, possibility. Consequently, the laws requiring the imposition
of the court facilities and court operations assessments without regard to a defendant’s
ability to pay fail strict scrutiny and violate the equal protection clause.
        Furthermore, the fact that these laws are far from narrowly tailored and fail strict
scrutiny, itself refutes the notion there was no constitutional violation because the
assessments in question were imposed at the end of the proceedings and did not serve to
block access to the court entirely, as was the case in Griffin (where indigent defendants
could not move forward with their appeals because of the prohibitive cost of obtaining a
trial transcript).
        Given our conclusion that the Constitution prohibits imposition of the court
operations and court facilities assessments on those who are unable to pay and would
therefore suffer the consequences of delinquent debt from imposition of these
assessments, it follows that, prior to imposing such assessments, courts must give
defendants an opportunity to request an ability to pay hearing for purposes of showing
they are in fact unable to pay these assessments. Son did not have an opportunity to
request an ability to pay hearing to make a showing that he could not pay the court
assessments imposed at sentencing. Accordingly, “no evidence exists in the record from
which to infer any findings in this regard.” (People v. Castellano (2019) 33 Cal.App.5th
485, 490 (Castellano).)
        We recognize that the court assessments at issue amount collectively to $70 and
that it is tempting to simply presume that Son would be able, in all likelihood, to pay this
sum. Indeed, the easy approach would be to find that denial of the opportunity to request
an ability to pay hearing was harmless in Son’s case. The People urge us to do precisely
that, arguing that the trial court’s imposition of the court assessments, without giving Son
the opportunity to request an ability to pay hearing, was harmless because Son is an
“able-bodied inmate” serving a “lengthy sentence.” However, the issue of Son’s inability

                                              46
to pay was not addressed in the trial court and it would be inappropriate to presume that
the existing, and necessarily incomplete, record definitively precludes Son from
demonstrating an inability to pay.
       To the extent the People’s argument implies Son should be presumed able to pay
the court assessments based on actual or potential prison employment, we reject that
suggestion under the circumstances. While there is ample authority supporting the
proposition that a prisoner’s ability to pay fines and fees may be assessed on the basis of
anticipated prison wages (see, e.g., People v. Jones (2019) 36 Cal.App.5th 1028, 1035),
reliance on that notion is purely speculative at this juncture, given the absence of a record
on the issue and the fact that not all inmates are eligible for paid positions, which are
considered a privilege and are subject to various restrictions and requirements. (Cal.
Code Regs., tit. 15, §§ 3040, 3041.1.) Nor may we presume that, to the extent Son is
unable to pay the court assessments, his status as an evidently long-term prisoner
completely immunizes him from any and all consequences of being a delinquent debtor.
       A limited remand is therefore warranted to give Son the opportunity to request a
hearing to present evidence demonstrating his inability to pay the court assessments
imposed by the trial court. (Castellano, supra, 33 Cal.App.5th at pp. 490-491.) Son
bears the burden of raising the issue of his inability to pay the court assessments and to
support that claim with relevant evidence. (Ibid.) Should Son request an ability to pay
hearing for this purpose, the trial court may consider all relevant factors in determining
whether Son is able to pay the assessments, including the likelihood of prison pay during
the period of incarceration to be served (with the caveat that other fines, beyond the
instant court assessments, may also have to be paid out of any prison wages Son may
earn). If the trial court determines Son is unable to pay the court assessments, they must
be stricken. (Id. at p. 490.)



                                             47
       D.      The Restitution Fine: A Punitive Sanction, Not a User Fee19
       The restitution fine imposed here is a punitive sanction, not a user fee imposed on
court-access so as to defray the costs of court operations. The access-to-the-courts
analysis above does not apply to punitive fines (fines imposed as punishment), including
the restitution fine. It has never been held that the imposition of any kind of criminal
punishment should be analyzed as a burden placed on access to the courts. Punishment is
instead a burden placed on the commission of crime. This is simply a matter of
legislative intent.
       With the court revenue assessments, the Legislature intended to cause every
convicted defendant to pay a part of the cost of maintaining a court system, the existence
of which is necessitated by the existence of crime. These exactions were conceived of by
the Legislature as a way of recouping court costs from court users—specifically,
convicted defendants, who may be said to have given rise, by their own acts, to the
criminal accusations they had to access the courts to defend against—as a price to be
charged to those given access to the courts. In contrast, in the case of fines imposed as
punishment, the legislative intent is simply to punish crime.
       Dueñas, however relies not just on access-to-the-courts jurisprudence to support
its holding, but also on the concept of fundamental unfairness encompassed by
substantive due process analysis, specifically, the fundamental unfairness of the indigent
suffering more severe consequences for their convictions just because they are indigent.
In this context, Dueñas relies on cases such as Bearden and Antazo, which consider the
differential impact of punitive fines on the indigent, with the rub being that the
defendants’ inability to pay a fine resulted in conversion of the fine to jail time. Some
similar cases are Williams v. Illinois (1970) 399 U.S. 235 (Williams) [court cannot give

19      See J. Franson’s concurring and dissenting opinion as to his concurrence in this
part of Section IV.

                                             48
indigent defendant longer jail term than maximum available for solvent defendant, just
because indigent cannot pay fine imposed as part of sentence]; Tate v. Short (1971) 401
U.S. 395 (Tate) [conversion of traffic fine to jail time based solely on defendant’s
inability to pay unconstitutional].) All these cases are about the fundamental unfairness
of sending a person to jail due to indigency, i.e., something beyond that person’s control.
Dueñas undertakes to extend this theme of fundamental unfairness to the situation here
(i.e., the imposition of restitution fines as punishment), with the hardships attendant on
delinquent debt taking the place of jail time as an unacceptable consequence of the
inability to pay.
       The trouble with this attempted extension is that it is in conflict with the body of
cases it would extend. As a proviso to the proposition that fines cannot be converted to
incarceration just because the defendant cannot pay them, the United States Supreme
Court has made it sufficiently clear that fines imposed as punishment on their own,
without conversion to incarceration as a consequence of being unable to pay, need not
take account of ability to pay to be constitutionally acceptable. This rule emerges from
the high court’s reasoning in Williams, supra, on the way to the conclusion that the
Constitution prohibits extension of a jail term beyond the maximum otherwise available,
based on inability to pay a fine alone. The court emphasized that the constitutional
difficulty arose from the challenged law’s provision of jail time contingent upon
nonpayment of a fine imposed without regard to ability to pay. There was no
constitutional difficulty in the simple imposition of a fine without regard to ability to pay,
where nonpayment would result merely in enforcement of a judgment for the debt. The
court explained, were it otherwise, an indigent defendant, convicted of an offense
punishable by jail time or a fine, could not, consistent with the Constitution, receive jail
time based on an inability to pay a fine alone, but also could not be fined because of
inability to pay. Thus, in a case in which jail time was only warranted by inability to pay

                                             49
a fine, an indigent defendant would receive no punishment at all. The court saw no
constitutional mandate for that result:

              “The State is not powerless to enforce judgments against those
       financially unable to pay a fine; indeed, a different result would amount to
       inverse discrimination since it would enable an indigent to avoid both the
       fine and imprisonment for nonpayment whereas other defendants must
       always suffer one or the other conviction [sic; one or the other
       punishment].” (Williams v. Illinois, supra, 399 U.S. at p. 244.)
The point that the Constitution does not prevent a state from enforcing a money judgment
for a punitive fine against an indigent defendant was reiterated in Tate, supra, 401 U.S. at
page 399, and Bearden, supra, 461 U.S. at page 672.
       While the case law is clear that indigence alone cannot be the basis for otherwise
equal punishments to have worse secondary consequences for the indigent, all the cases
focus on the secondary consequence of being incarcerated on account of inability to pay
a fine. This rather specific discussion would seem to foreclose reliance on a general
principle that indigence alone must not be allowed to cause otherwise equal punishments
to have worse secondary consequences for the indigent. In other words, in specifically
focusing on incarceration, the cases do not appear to support the idea that the
Constitution prohibits a broad array of secondary consequences of otherwise equal
punishment, for the indigent; and the particular consequence of being subject to
enforcement of delinquent debt is, in the context of punishment, singled out as one that
does not trigger a constitutional violation.
       The specific discussion of enforcement of punitive fines against indigent
defendants also reinforces the conclusion that the access-to-the-courts jurisprudence does
not support the view that fines imposed as punishment can be treated as if they were
barriers to access to the courts and subject to constitutional regulation accordingly. The
Supreme Court simply says flatly that there is no difficulty in reducing indigents’ unpaid
punitive fines to judgment and then enforcing the judgment.

                                               50
       Finally, we can once again use the strict scrutiny/rational basis framework as a sort
of cross-check to confirm the above conclusion that the imposition of the restitution fine
as a punishment without reference to ability or inability to pay is not unconstitutional.
       The right burdened by imposition of the nonpunitive assessments (i.e., user fees) ,
as noted in our discussion above, is the fundamental right of access to the courts. When
it comes to punitive fines, however, we deal only with an interest in not being subject to
punitive fines one cannot afford to pay, or not experiencing on account of indigence
worse consequences from the imposition of punitive fines than those suffered by the
solvent. Nothing of the latter sort—unlike access to the courts—has ever been held to be
a fundamental right in the context of equal protection or substantive due process. And, as
mentioned, the classification of rich and poor is not a suspect classification. Therefore,
the applicable level of review for assessing the constitutionality of the restitution fine is
relatively deferential rational basis review. (Heller v. Doe (1993) 509 U.S. 312, 319
(Heller); Washington v. Glucksberg (1997) 521 U.S. 702, 728.)
       Under rational basis review, a challenged classification is consistent with the equal
protection clause if “there is a rational relationship between the disparity of treatment and
some legitimate governmental purpose.” (Heller, supra, 509 U.S. at p. 320.) Neither the
legitimate purpose nor the rational relationship need ever have been spelled out by
legislators or other government actors who chose to make use of the classification.
Instead, the rational basis of the challenged scheme need only be “‘reasonably
conceivable’” in the mind of the court reviewing it. (Ibid.) The standard is thus highly
deferential.
       The state’s interest in using fines for punishment is a legitimate government
interest. The use of fines to deter and punish crimes can no doubt be criticized on various
grounds, including the fact that the differences in individuals’ means can result in
substantial differences in the effectiveness of deterrence and the proportionality of

                                              51
punishment. But such criticisms hardly render illegitimate the government’s interest in
using fines to punish.
       What conceivable rational relationship is there between the state’s interest in using
fines as punishment and its toleration of the differing effects of the same fines on
defendants with and without the ability to pay them? Taking account of defendants’
ability to pay would add administrative complexity and expense to the process of
imposing fines. It may also be true that not taking account of defendants’ ability to pay
complicates the process of fining defendants and makes it wasteful, resulting in fruitless
expenditure of resources in attempting to collect money from those who have none. But
the state’s action need not be particularly efficient or effective to pass the rational basis
test. Further, as the Supreme Court suggested in Williams, Tate, and Bearden, accepting
the harsher impact of the imposition of debt on defendants who cannot pay it (i.e.,
indigent defendants), is a rational alternative to imposing no sanction or a lesser sanction
than others suffer, when it comes to punishment for violating laws that rely on fines
wholly or in part for their enforcement.
       Consequently, the imposition of the restitution fine without regard to defendants’
ability to pay survives rational basis review and, in turn, is not unconstitutional.
       E.     Conclusion
       To summarize the above in the smallest compass, we can state our separate
holdings on the nonpunitive court facilities and court operations assessments, and on the
punitive restitution fine, using both the older fundamental fairness language and the
newer strict scrutiny/rational basis language in our jurisprudence, as follows:
       1.a. The nonpunitive court facilities and court operations assessments may not be
imposed on an indigent defendant because it is fundamentally unfair to grant some
defendants access to a court in which to defend against criminal accusations only in
conjunction with the creation of debts overwhelming to them (on account of their

                                              52
indigency), while others are granted access without being saddled with overwhelming
debts (on account of their solvency).
       1.b. The nonpunitive court facilities and court operations assessments may not be
imposed on a defendant who is unable to pay because: these charges are imposed on
court users for use of the court, burdening their exercise of the fundamental right of
access to the criminal courts; their imposition burdens those for whom they are
unaffordable more than those for whom they are affordable, triggering an equal
protection analysis under strict scrutiny; the difference in the burden on the two groups’
rights to access to the courts is not necessary to further the government’s interest in
funding the courts (not narrowly tailored) because there are many ways to fund the courts
that do not involve any such differential burden; and so the scheme fails strict scrutiny.
       2.a. The restitution fine, being a punishment, can properly be imposed on a
defendant who is unable to pay it because, unlike in the case of imposition of jail time as
a consequence of being unable to satisfy a monetary punishment, there is no fundamental
unfairness in facing enforcement of a money judgment for a delinquent debt as a
consequence of being unable to satisfy a monetary punishment. Indeed, imposition of
monetary fines without regard to ability to pay is necessary to ensure compliance with
laws that rely wholly or in part on fines for their enforcement.
       2.b. The restitution fine can properly be imposed on a defendant who is unable to
pay it because it is imposed for punishment; there is no fundamental right not to be
burdened by a punitive fine; the distinction between those who can and cannot afford to
pay a fine is not a suspect classification; and imposition of fines without reference to
ability to pay is rationally related to the state’s goal of punishment by fines because such
punishment can be more easily administered without first determining each defendant’s
ability or inability to pay, among other reasons.



                                             53
       For all these reasons, we affirm the restitution fine but remand to give Son an
opportunity to request an ability to pay hearing with respect to the court operations and
facilities assessments previously imposed.20
       F.     Forfeiture
       The People argue that Son is not entitled to relief because he did not raise the issue
decided by Dueñas by objecting to the assessments and fine in the trial court.
       We ordinarily do not consider claims of error where an objection could have been,
but was not, made in some appropriate form at trial. It is usually unfair to the trial court
and the adverse party to take advantage of an error on appeal which could have been
corrected during the trial. (People v. Saunders (1993) 5 Cal.4th 580, 590; Doers v.
Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) In conformity with
common sense, however, our Supreme Court has stated that failure to object in the trial
court does not forfeit an appellate issue “‘“‘where to require defense counsel to raise an
objection “would place an unreasonable burden on defendants to anticipate unforeseen
changes in the law and encourage fruitless objections in other situations where defendants
might hope that an established rule … would be changed on appeal.”’”’” (People v.
Rangel (2016) 62 Cal.4th 1192, 1215.) Assessments and fines like those at issue in this
case have existed in California for decades and have been imposed in countless cases
without previously generating an appellate ruling that imposition of them on the indigent
is unconstitutional. Dueñas easily qualifies as a change in the law not likely to have been
foreseen—exactly the sort of development it would be unreasonable to expect defense


20      To the extent Son argues the restitution fine violates the Excessive Fines Clause of
the Eighth Amendment, that argument is minimally developed in Son’s supplemental
opening brief and the record is silent as to the factual information necessary for resolving
that claim. Therefore, on remand, Son may raise that issue in the trial court in the first
instance. We reject the People’s argument that any claim to relief from the imposition of
fines and fees lies only under the Eighth Amendment.

                                             54
counsel to have on a list of objections to be made in the hope that the law might change
someday.
       The People, and some Court of Appeal panels, maintain that Dueñas error is
forfeited if not raised in pre-Dueñas proceedings in the trial court, but this contention is
untenable. The People rely on two propositions that are well-worn in this context, but, in
this case at least, fictitious. The first is that if someone has anticipated the change, then
the change ought to have been foreseen by reasonable defense counsel generally. The
People invoke this proposition when they remark that Dueñas herself raised the issue in
the trial court. But the inference that all other defense counsel ought to have foreseen a
change in the law is not a valid one.
       The second fictitious proposition is that because a new law is based on old
principles, all lawyers can rightly be expected to see the new law coming, because they
are presumed to know the old principles. The Court of Appeal in People v. Frandsen
(2019) 33 Cal.App.5th 1126, cited by the People in this case, unintentionally revealed the
fatal trouble with this notion, at least as applied to Dueñas. Frandsen concluded that the
Dueñas issue was forfeited by failure to raise it in the trial court because the holding of
Dueñas “flowed from Griffin v. Illinois (1956) 351 U.S. 12, In re Antazo (1970) 3 Cal.3d
100, and Bearden v. Georgia (1983) 461 U.S. 660,” and indeed even “[t]he Magna Carta
prohibited civil sanctions that were disproportionate to the offense or that would deprive
the wrongdoer of his means of livelihood.” (Frandsen, supra, at pp. 1154-1155.) But the
fact that the old principle had not previously been applied in the new manner, despite the
old principle’s continuous existence since 1983, 1970, 1956, or 1215, is a reason why the
new application would be unexpected.
       The use of weak reasons to find the first wave of appellate challenges based on
new case law to be forfeited, when almost no one foresaw the new law and thus did not



                                              55
object in the trial court, is not appropriate. The anti-forfeiture doctrine recently
reaffirmed in Rangel, supra, 62 Cal.4th at p. 1215, applies here.
                                     DISPOSITION21
       The judgment of conviction is affirmed. The matter is remanded for further
proceedings. On remand, Son shall be afforded the opportunity to request an ability to
pay hearing with respect to the court facilities assessment (Gov. Code, § 70373) and the
court operations assessment (Pen. Code, § 1465.8). If Son requests a hearing and
demonstrates an inability to pay these assessments, they must be stricken; otherwise they
shall remain in effect. The restitution fine previously imposed is affirmed, as an ability to
pay hearing is not constitutionally mandated here with respect to the restitution fine.



                                                            SMITH, J.




21     The disposition is consistent with section IV. of the lead opinion by J. Smith,
along with J. Snauffer’s concurring opinion in relevant part and J. Franson’s concurring
and dissenting opinion in relevant part.

                                              56
SNAUFFER, J., Concurring.
       I concur with Justice Smith’s opinion, including the disposition, except in part to
Section IV relating to fines and fees. I agree that upon remand Son will be entitled to a
hearing with respect to his ability to pay court facilities and operation assessments under
Government Code section 70373, subdivision (a)(1) and Penal Code section 1465.8,
subdivision (a)(1). Under the case law developed in People v. Duenas (2019)
30 Cal.App.5th 1157 (Duenas), People v. Castellano (2019) 33 Cal.App.5th 485
(Castellano), and numerous subsequent cases, Son falls into that dwindling category of
defendants who had no realistic opportunity to contest the imposition of fines and fees at
the time of their pre-Duenas sentencing. (Castellano, supra, at pp. 489-490.)
       I do not join, and express no opinion, whether in all cases restitution fines are
punitive in nature and not properly subject to an ability to pay challenge. In this case, the
minimum restitution fine of $300 was imposed pursuant to Penal Code section 1202.4,
subdivision (b)(1). In these circumstances, Penal Code section 1202.4, subdivision (c)
precludes consideration of the defendant’s ability to pay. However, the defendant is not
precluded from making an ability to pay argument under federal and state due process,
the Eighth Amendment, and perhaps other grounds, given the current somewhat
uncertain and developing state of the law.
         On remand, Son will bear the burden of demonstrating a harm of constitutional
magnitude, and making a record of his inability to pay the fines, fees, and assessments, a
record which does not currently exist. (People v. Kopp (2019) 38 Cal.App.5th 47, 96-98;
review granted Nov. 13, 2019, S257844.) I express no opinion regarding how the trial
court should rule on these matters.
         In all other respects, I would affirm the judgment.



                                                         SNAUFFER, J.
                                              1
FRANSON, Acting P.J., Concurring and Dissenting.

       I concur with the majority that no structural error occurred under McCoy v.
Louisiana (2018) 138 S.Ct. 1500 and that no error occurred in failing to instruct the jury
on involuntary manslaughter. I also agree that no Pitchess1 error occurred. Lastly, I
concur with part IV of the lead opinion, to the extent it holds that remand to allow an
ability to pay hearing as to the restitution fine pursuant to Penal Code2 section 1202.4,
subdivision (b)(1) is not constitutionally required based on the facts presented.
       However, I dissent from my colleagues’ conclusion that remand, and an ability to
pay hearing, is necessary with respect to the court facilities and operation assessments
under Government Code section 70373, subdivision (a)(1) and Penal Code section
1465.8, subdivision (a)(1), pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas).
       Appellant filed a supplemental brief challenging, under Dueñas, the trial court’s
imposition of a $40 court operations fee (§ 1465.8); a $30 court facilities fee (Gov. Code,
§ 70373); and a $280 restitution fine (§ 1202.4, subd. (b)). The challenged fees and fine
amount to $350. Appellant argues the trial court violated his federal and state rights to
due process, equal protection and against cruel and/or unusual punishment by imposing
the $70 in assessments and the $280 restitution fine without determining his ability to
pay.
       I find appellant’s assertions based on Dueñas unavailing. Dueñas is
distinguishable from the present matter, and appellant’s constitutional rights were not




1      Pitchess v. Superior Court (1974) 11 Cal.3d 531.
2      All statutory references are to the Penal Code unless noted otherwise.
violated. In any event, any presumed constitutional error is harmless beyond any
reasonable doubt.3
       In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted
on public aid while suffering from cerebral palsy. She had dropped out of high school
because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at
pp. 1160–1161.) As a teenager, the defendant’s driver’s license was suspended when she
could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of
misdemeanor offenses for driving with a suspended license, and in each case, she was
given the choice to pay mandatory fees and fines, which she lacked the means to do, or
go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced
outstanding debt, which increased with each conviction. (Ibid.)
       After her fourth conviction of driving with a suspended license, the defendant was
placed on probation and again ordered to pay mandatory fees and fines. The court
imposed a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40
court operations assessment (§ 1465.8, subd. (a)(1)); and a minimum $150 restitution fine
(§ 1202.4, subd. (b)(1)). The court also imposed and stayed a probation revocation
restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at pp. 1161–1162.) The
defendant challenged the fees and fines imposed under Penal Code sections 1202.4 and
1465.8, and Government Code section 70373. (Dueñas, supra, at p. 1164.) The trial
court rejected her constitutional arguments that due process and equal protection required
the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.)
       On appeal, however, the Dueñas court determined that the defendant’s due process
rights had been infringed. According to Dueñas, an ability to pay hearing was required


3      The parties disagree whether appellant forfeited his Dueñas claim by failing to
object to the imposed fines and fees in the trial court. I need not address forfeiture
because appellant’s claim fails on the merits and any presumed error is harmless beyond
a reasonable doubt.


                                                2
so the defendant’s “present ability to pay” (Dueñas, supra, 30 Cal.App.5th at p. 1164)
could be determined before assessments were levied for a court operations assessment
(§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd.
(a)(1)). (Dueñas, supra, at p. 1164.) The Dueñas court also concluded the minimum
restitution fine of $150 (§ 1202.4, subd. (b)(1)) had to be stayed. The appellate court
reached that conclusion despite section 1202.4 barring consideration of a defendant’s
ability to pay unless the judge is considering a fine over the statutory minimum.
(§ 1202.4, subd. (c).) Dueñas held that “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.”
(Dueñas, supra, at p. 1164.)
       Subsequently, a different panel of the same court that decided Dueñas rejected the
argument that Dueñas places a burden on the People to prove a defendant’s ability to pay
in the first instance. (People v. Castellano (2019) 33 Cal.App.5th 485, 489–490
(Castellano).) Castellano clarifies that the defendant in Dueñas had demonstrated her
inability to pay in the trial court and, only in that circumstance, had the appellate court
concluded fees and assessments could not constitutionally be assessed and restitution
must be stayed until the People proved ability to pay. (Castellano, supra, at p. 490.)
Thus, “a defendant must in the first instance contest in the trial court his or her ability to
pay the fines, fees and assessments to be imposed and at a hearing present evidence of his
or her inability to pay the amounts contemplated by the trial court.” (Ibid.)
       According to the Dueñas court, the defendant lost her driver’s license because she
was too poor to pay her juvenile citations. She continued to offend because the
aggregating criminal conviction assessments and fines prevented her from recovering her
license. The Dueñas court described this as “cascading consequences” stemming from “a
series of criminal proceedings driven by, and contributing to, [the defendant’s] poverty.”
(Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.)

                                               3
       Dueñas is inapplicable in the present matter. In contrast to Dueñas, appellant’s
incarceration was not a consequence of prior criminal assessments and fines. He was
serving a life sentence for a 1990 torture conviction in violation of Penal Code section
207. Appellant was not caught in an unfair cycle, and he could have avoided the present
convictions regardless of his financial circumstances. Dueñas is distinguishable and has
no application to this case. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1054–
1055 (Lowery); People v. Caceres (2019) 39 Cal.App.5th 917, 928–929 [declining to
apply Dueñas’s “broad holding” beyond its unique facts]; People v. Johnson (2019) 35
Cal.App.5th 134, 138 [“Dueñas is distinguishable.”].) Bad facts make bad law.
       Even if Dueñas is applicable, the trial court did not violate appellant’s
constitutional rights when imposing the disputed fees and fines without conducting an
ability to pay hearing. The Dueñas defendant presented compelling evidence the
imposed assessments resulted in ongoing unintended punitive consequences. The
Dueñas court determined those unintended consequences were “fundamentally unfair”
for an indigent defendant under principles of due process. (Dueñas, supra, 30
Cal.App.5th at p. 1168.) The Dueñas court noted the imposed financial obligations were
also potentially unconstitutional under the excessive fines clause of the Eighth
Amendment. However, Dueñas stated “[t]he 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.’ [Citation.]” (Dueñas, supra, at p. 1171, fn. 8.)
       This court has declined to expand Dueñas’s holding beyond the unique facts found
in Dueñas. In Lowery, supra, 43 Cal.App.5th 1046, two defendants were convicted for a
series of armed robberies, and various fees, fines and assessments were imposed against
them. (Id. at pp. 1048–1049.) Based on Dueñas, the defendants in Lowery challenged
the imposition of some of those financial obligations. The Lowery court, however,
rejected a due process challenge based on Dueñas. The Lowery court noted the “unique

                                             4
concerns addressed in Dueñas” were lacking. (Lowery, supra, at p. 1056.) Nothing
established or even reasonably suggested the two defendants in Lowery faced ongoing
unintended punitive consequences stemming from the imposition of fees, fines and
assessments. The defendants did not establish how they suffered a violation of a
fundamental liberty interest. To the contrary, the defendants had been incarcerated not
because of their alleged indigency but because they were convicted of intentional
criminal acts. Because unintended consequences were not present, the Lowery court held
it was not fundamentally unfair for the trial court to impose fees, fines and assessments
against the defendants without first determining their ability to pay.4 (Lowery, supra, at
pp. 1056–1057.)
       Dueñas was also strongly criticized in People v. Hicks (2019) 40 Cal.App.5th 320,
325–326, review granted November 26, 2019, S258946 (Hicks). The Hicks court held
that, in contrast to Dueñas’s application of due process, a due process violation must be
based on a fundamental right, such as denying a defendant access to the courts or
incarcerating an indigent defendant for nonpayment. Hicks concluded that Dueñas’s
analysis was flawed because it expanded due process in a manner that grants criminal
defendants a right not conferred by precedent; that is, an ability to pay hearing before
assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325–326, review granted.)
Under its facts, Hicks rejected a due process challenge to the imposition of fines and



4      In People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), this court held that, in
contrast to a due process challenge, the “ ‘excessive fines’ ” clause in the Eighth
Amendment to the United States Constitution was a more appropriate avenue for an
indigent defendant to challenge the imposition of fees, fines and assessments. (Aviles,
supra, at p. 1069.) Under its facts, Aviles found no constitutional violation for the
imposition of assessments and fines imposed on a felon who, after fleeing from officers,
shot and wounded two of them. (Id. at pp. 1059–1060.) Aviles also concluded any
presumed error was harmless because the felon had the ability to earn money while in
prison. (Id. at pp. 1075–1077.)


                                             5
assessments on a felon who, while under the influence of a stimulant, resisted arrest. (Id.
at pp. 323, 329–330.)
       Finally, and importantly, in People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), our
Supreme Court held the forfeiture rule applies when a defendant fails to object to the
imposition of probation supervision and presentence investigation fees under section
1203.1b.5 (Trujillo, supra, 60 Cal.4th at pp. 853–854.) In finding forfeiture, the Trujillo
court acknowledged the forfeiture doctrine does not apply to the advisement of certain
federal constitutional rights. (Id. at p. 859.) As examples of such constitutional rights,
the court stated: “[k]nowing and intelligent waivers are generally required when a
criminal defendant gives up ‘ any significant right’ [citation], such as the constitutional
rights relinquished by a plea of guilty [citation], the right to counsel [citation], and the
right to appeal [citation].” (Ibid.) Importantly, the Trujillo court stated “[h]ere, no
comparably significant right is at stake. [The] [d]efendant has not argued that any core
autonomy interests or constitutional rights are implicated by the waiver of a judicial
hearing on a defendant’s ability to pay, and no similar waiver is required for any of the
analogous sentencing fines and fees.” (Ibid., italics added.) This language from Trujillo
is compelling. The high court’s comments show that no constitutional rights were
implicated when the trial court imposed the disputed fees, fines and assessments against
appellant without first conducting an ability to pay hearing.
       The unique concerns addressed in Dueñas are lacking in the present case.
Appellant does not establish the violation of a fundamental liberty interest. Indeed, he


5       Section 1203.1b permits imposition of reasonable probation costs as a condition of
probation. Costs can be imposed, in part, for probation supervision, a conditional
sentence, mandatory supervision, certain investigations, and the preparing of certain
reports. (§ 1203.1b, subd. (a).) The probation officer (or an authorized representative)
shall determine a defendant’s ability to pay all or a portion of these reasonable costs after
considering any amount the defendant is ordered to pay in fines, assessments, and
restitution. (Ibid.)


                                               6
was not incarcerated because of his indigency, but for his continuing violent criminal acts
while serving a life prison term. Appellant was not caught in a cycle of “cascading
consequences” stemming from “a series of criminal proceedings driven by, and
contributing to, [his] poverty.” (Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.) As
such, it was not fundamentally unfair for the trial court to impose the fees, fines and
assessments in this matter without first determining appellant’s ability to pay.6 Thus, the
trial court did not violate appellant’s due process rights, and appellant’s constitutional
claims fail. (See Lowery, supra, 43 Cal.App.5th at pp. 1056–1057.)
       Unlike the Dueñas defendant, who was placed on probation and subjected to a
recurring cycle of debt, appellant was sentenced to an aggregate prison term of 27 years,
to be served consecutive to the life term he was serving when he committed the present
offense. Nothing in this record suggests he might be unable to work, or he might be
ineligible for prison work assignments.7 As such, we can infer he will have the
opportunity to earn prison wages and he can start paying these financial obligations. (See
Lowery, supra, 43 Cal.App.5th at p. 1060; Aviles, supra, 39 Cal.App.5th at p. 1076;
People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a
defendant’s prison wages].) Although it may take him time to pay his financial
obligations, he can make payments from either prison wages or monetary gifts from
family and friends. (Lowery, supra, 43 Cal.App.5th at pp. 1060–1061; Aviles, supra, 39
Cal.App.5th at p. 1077.) Thus, any presumed constitutional error is harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Therefore,




6     Note the trial court was permitted to impose fines upon appellant following his
convictions. (See, e.g., Bearden v. Georgia (1983) 461 U.S. 660, 669 [a state has a
fundamental interest in “appropriately punishing persons—rich and poor—who violate its
criminal laws” and poverty does not immunize a defendant from punishment].)
7      Appellant is 49 years old.


                                              7
appellant’s constitutional challenge is without merit and remand is unnecessary. (See
Lowery, supra, 43 Cal.App.5th at p. 1061.)


                                                      FRANSON, Acting P.J.




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