Son challenges his conviction for voluntary manslaughter on grounds that trial counsel committed structural error under McCoy v. Louisiana (2018) ––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 ( 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. We have done so and found no impropriety in the court's inquiry and rulings.

Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 (Pitchess ).

Finally, Son challenges, under People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( 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.

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.) 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)).

All subsequent statutory references are to the Penal Code unless otherwise specified.

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

See footnote *, ante .

DISCUSSION

I.-III. IV. Fines and Fees

See footnote *, ante .

In common with a great many other cases, this case raises the issues decided in Dueñas, supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268, involving the constitutionality of imposing court 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 $280 restitution fine (§ 1202.4, subd. (b)). 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.

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).)

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 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 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 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, 242 Cal.Rptr.3d 268.)

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, 242 Cal.Rptr.3d 268.)

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. 1164-1168, 242 Cal.Rptr.3d 268.) 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, 242 Cal.Rptr.3d 268.)

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, 242 Cal.Rptr.3d 268.) 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, 242 Cal.Rptr.3d 268.)

(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, 76 S.Ct. 585, 100 L.Ed. 891 ( 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, 76 S.Ct. 585.) 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 inability to pay fees. (See, e.g., Tennessee v. Lane (2004) 541 U.S. 509, 522, 124 S.Ct. 1978, 158 L.Ed.2d 820 ( 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, 117 S.Ct. 555, 136 L.Ed.2d 473 [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, 89 Cal.Rptr. 255, 473 P.2d 999 ( Antazo ) and Bearden v. Georgia (1983) 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 ( 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, 89 Cal.Rptr. 255, 473 P.2d 999.) 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, 89 Cal.Rptr. 255, 473 P.2d 999.) "[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, 89 Cal.Rptr. 255, 473 P.2d 999.) 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, 103 S.Ct. 2064.) 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 punishing the defendant are available." ( Id. at pp. 668-669, 103 S.Ct. 2064.) 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, 103 S.Ct. 2064.) 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, 103 S.Ct. 2064.)

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, 89 Cal.Rptr. 255, 473 P.2d 999.)

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.

C. The Court Facilities and Operations Assessments as User Fees: Griffin and the Fundamental Right of Access to the Courts

See J. Snauffer's concurring opinion regarding his concurrence in this part of section IV.

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, 76 S.Ct. 585.)

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, 76 S.Ct. 585.) Observing that providing equal justice for rich and poor is a problem centuries old, the lead opinion stated:

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, 76 S.Ct. 585.)

"[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, 76 S.Ct. 585, 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, 79 S.Ct. 1164, 3 L.Ed.2d 1209 [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, 83 S.Ct. 814, 9 L.Ed.2d 811 ( Douglas ) [indigent defendants entitled to appointed appellate counsel]; Lane v. Brown (1963) 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 [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, 88 S.Ct. 194, 19 L.Ed.2d 41 [indigent defendant entitled to free transcript of preliminary hearing for use at trial]; Mayer v. Chicago (1971) 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 [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 Cal.4th 749, 757, 68 Cal.Rptr.3d 310, 171 P.3d 32 ; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492-1494, 106 Cal.Rptr.3d 722 ; 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, 240 Cal.Rptr.3d 629 ( 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, 240 Cal.Rptr.3d 629 ), 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 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, 240 Cal.Rptr.3d 629, 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, 76 S.Ct. 585.)

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, 252 Cal.Rptr.3d 709.)

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 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, 86 S.Ct. 1497, 16 L.Ed.2d 577 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, 86 S.Ct. 1497.) 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, 86 S.Ct. 1497, 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. 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, 94 S.Ct. 2116, 40 L.Ed.2d 642 ; 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, 114 Cal.Rptr. 765, 523 P.2d 1173.)

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, 76 S.Ct. 585 (dis. opn. of Harlan, J.); Douglas, supra , 372 U.S. at pp. 360-363, 83 S.Ct. 814 (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, 83 S.Ct. 814 (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." ( Griffin, supra , 351 U.S. at pp. 34-36, 76 S.Ct. 585.) 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, 83 S.Ct. 814 (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 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. 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.

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, 93 S.Ct. 631, 34 L.Ed.2d 626 (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, 93 S.Ct. 631 (dis. opn. of Marshall, J.).)

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, 103 S.Ct. 2064.)

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, 102 S.Ct. 2382, 72 L.Ed.2d 786.) 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, 93 S.Ct. 1278, 36 L.Ed.2d 16.) 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 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, 124 S.Ct. 1978.) Under strict scrutiny, the use of a classification to discriminate 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, 123 S.Ct. 2325, 156 L.Ed.2d 304.) 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, 106 S.Ct. 1842, 90 L.Ed.2d 260.)

In this context, unlike in most others (see Washington v. Davis (1976) 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 ), 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, 117 S.Ct. 555 ["[U]nder respondents' reading of Washington v. Davis , our overruling of the Griffin line of cases would be two decades overdue."].)

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 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, 245 Cal.Rptr.3d 138 ( 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 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, 249 Cal.Rptr.3d 190 ), 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, 245 Cal.Rptr.3d 138.) 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, 245 Cal.Rptr.3d 138.)

D. The Restitution Fine: A Punitive Sanction, Not a User Fee

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

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, 90 S.Ct. 2018, 26 L.Ed.2d 586 ( Williams ) [court cannot give 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, 91 S.Ct. 668, 28 L.Ed.2d 130 ( 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 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, 90 S.Ct. 2018.)

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, 91 S.Ct. 668, and Bearden, supra , 461 U.S. at page 672, 103 S.Ct. 2064.

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.

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, 113 S.Ct. 2637, 125 L.Ed.2d 257 ( Heller ); Washington v. Glucksberg (1997) 521 U.S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772.)

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, 113 S.Ct. 2637.) 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 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 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.

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.

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.

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, 20 Cal.Rptr.2d 638, 853 P.2d 1093 ; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261.) 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, 200 Cal.Rptr.3d 265, 367 P.3d 649.) 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 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, 245 Cal.Rptr.3d 658, 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, 76 S.Ct. 585, 100 L.Ed. 891, In re Antazo (1970) 3 Cal.3d 100, 89 Cal.Rptr. 255, 473 P.2d 999, and Bearden v. Georgia (1983) 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221," 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, 245 Cal.Rptr.3d 658.) 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 un expected.

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 object in the trial court, is not appropriate. The anti-forfeiture doctrine recently reaffirmed in Rangel, supra , 62 Cal.4th at p. 1215, 200 Cal.Rptr.3d 265, 367 P.3d 649, applies here.

DISPOSITION

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.

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.

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. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), People v. Castellano (2019) 33 Cal.App.5th 485, 245 Cal.Rptr.3d 138 ( 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- Dueñas sentencing. ( Castellano, supra , at pp. 489-490, 245 Cal.Rptr.3d 138.)

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 cases where minimum fines are imposed, 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, 250 Cal.Rptr.3d 852 ; 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.

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

I concur with the majority that no structural error occurred under McCoy v. Louisiana (2018) ––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 and that no error occurred in failing to instruct the jury on involuntary manslaughter. I also agree that no Pitchess 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 Code section 1202.4, subdivision (b)(1) is not constitutionally required based on the facts presented.

Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305.

All statutory references are to the Penal Code unless noted otherwise.

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, 242 Cal.Rptr.3d 268 ( 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 violated. In any event, any presumed constitutional error is harmless beyond any reasonable doubt.

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.

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, 242 Cal.Rptr.3d 268.) As a teenager, the defendant's driver's license was suspended when she could not pay some citations. ( Id. at p. 1161, 242 Cal.Rptr.3d 268.) 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, 242 Cal.Rptr.3d 268.) 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, 242 Cal.Rptr.3d 268.) 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, 242 Cal.Rptr.3d 268.)

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 so the defendant's "present ability to pay" ( Dueñas, supra , 30 Cal.App.5th at p. 1164, 242 Cal.Rptr.3d 268 ) 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, 242 Cal.Rptr.3d 268.) 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, 242 Cal.Rptr.3d 268.)

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, 245 Cal.Rptr.3d 138 ( 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, 245 Cal.Rptr.3d 138.) 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, 242 Cal.Rptr.3d 268.)

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, 257 Cal.Rptr.3d 216 ( Lowery ); People v. Caceres (2019) 39 Cal.App.5th 917, 928–929, 252 Cal.Rptr.3d 709 [declining to apply Dueñas 's "broad holding" beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138, 247 Cal.Rptr.3d 1 [" 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, 242 Cal.Rptr.3d 268.) 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, 242 Cal.Rptr.3d 268.)

This court has declined to expand Dueñas 's holding beyond the unique facts found in Dueñas. In Lowery, supra , 43 Cal.App.5th 1046, 257 Cal.Rptr.3d 216, 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, 257 Cal.Rptr.3d 216.) 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 concerns addressed in Dueñas " were lacking. ( Lowery, supra , at p. 1056, 257 Cal.Rptr.3d 216.) 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. ( Lowery, supra , at pp. 1056–1057, 257 Cal.Rptr.3d 216.)

In People v. Aviles (2019) 39 Cal.App.5th 1055, 252 Cal.Rptr.3d 727 (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, 252 Cal.Rptr.3d 727.) 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, 252 Cal.Rptr.3d 727.) 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, 252 Cal.Rptr.3d 727.)

Dueñas was also strongly criticized in People v. Hicks (2019) 40 Cal.App.5th 320, 325–326, 253 Cal.Rptr.3d 116, 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, 253 Cal.Rptr.3d 116, review granted.) Under its facts, Hicks rejected a due process challenge to the imposition of fines and assessments on a felon who, while under the influence of a stimulant, resisted arrest. ( Id. at pp. 323, 329–330, 253 Cal.Rptr.3d 116.)

Finally, and importantly, in People v. Trujillo (2015) 60 Cal.4th 850, 182 Cal.Rptr.3d 143, 340 P.3d 371 ( 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. ( Trujillo, supra , 60 Cal.4th at pp. 853–854, 182 Cal.Rptr.3d 143, 340 P.3d 371.) 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, 182 Cal.Rptr.3d 143, 340 P.3d 371.) 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.

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. )

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 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, 242 Cal.Rptr.3d 268.) 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. 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, 257 Cal.Rptr.3d 216.)

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, 103 S.Ct. 2064, 76 L.Ed.2d 221 [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].)

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. 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, 257 Cal.Rptr.3d 216 ; Aviles, supra , 39 Cal.App.5th at p. 1076, 252 Cal.Rptr.3d 727 ; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837, 44 Cal.Rptr.2d 792 [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, 257 Cal.Rptr.3d 216 ; Aviles, supra , 39 Cal.App.5th at p. 1077, 252 Cal.Rptr.3d 727.) Thus, any presumed constitutional error is harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.) Therefore, appellant's constitutional challenge is without merit and remand is unnecessary. (See Lowery, supra , 43 Cal.App.5th at p. 1061, 257 Cal.Rptr.3d 216.)

Appellant is 49 years old.

Certified for Partial Publication.

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.

People v. Son

Summary

Opinion

OPINION

A. Synopsis of Analysis

B. Dueñas Opinion

E. Conclusion

F. Forfeiture

People v. Son

People v. Son

Case Details

Citations

Citing Cases

People v. Son

Summary

Opinion

OPINION

A. Synopsis of Analysis

B. Dueñas Opinion

E. Conclusion

F. Forfeiture

People v. Son

People v. Son

Case Details

CitationsCopy Citations

Citing Cases

Citations