Opinion
C088309
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMIE MARIE TODD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FE000984)
Following a jury trial, defendant Jamie Marie Todd was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and criminal threats (§ 422). The trial court suspended imposition of sentence and placed defendant on five years of formal probation.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the probation condition that she follow any reasonable instruction given by her supervising probation officer is an improper delegation of the court's authority to the probation officer. She further contends the case must be remanded for a hearing on her ability to pay the fines and fees under People v. Dueñas (2019) 30 Cal.App.5th 1157 (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210) (Dueñas).
The challenged probation condition is not an unauthorized delegation of authority to set probation conditions, and her failure to object to the condition forfeits any claim that it is unreasonable. Finding Dueñas was wrongly decided, we shall affirm.
PROCEDURAL BACKGROUND
We dispense with the facts of defendant's crimes as they are unnecessary to resolve this appeal.
At sentencing in November 2018, the trial court stated the probation conditions to defendant, which included the following: "You must follow in all respects any reasonable instructions given to you by the probation officer having your supervision."
Defendant did not object to this condition but expressed concerns regarding a condition authorizing flash incarceration for probation violations. When defendant asked if this meant if she would be sent back to jail if she quit her job or did not have a job, her trial counsel replied that no one here could answer those questions, and "[t]he one condition I would say is the most important condition, as I have explained to you many times . . . before, is follow the reasonable requests of your probation officer."
After defendant subsequently told the trial court she did not want the flash incarceration option, the court removed it from the probation conditions. Shortly thereafter, defendant accepted the conditions of probation.
Defendant did not object to the imposition of the minimum $300 restitution fine (§ 1202.4), the $80 court operations assessment (§ 1465.8, subd. (a)(1)), or the $60 criminal conviction assessment (Gov. Code, § 70373) imposed by the trial court. The probation report stated that defendant had an income of $ 1,290 a month from side jobs, food stamps, and general assistance. She lived with an adult daughter and was not financially responsible for any minor dependents.
DISCUSSION
1.0 Probation Condition
Defendant claims the condition that she follow any reasonable instructions from her probation officer is an unauthorized delegation of authority to the probation officer to set probation conditions. We disagree.
Defendant did not object to the condition, and in fact accepted probation after her trial counsel, in open court, told her this was the most important condition of probation. In general, the failure to make a timely objection to a probation condition forfeits the claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Defendant claims her contention is not forfeited because the condition is unauthorized and because the issue here is akin to a trial court failing to recognize the scope of its discretion.
Defendant relies primarily on In re Pedro Q. (1989) 209 Cal.App.3d 1368 (Pedro Q.) for the proposition that this condition is an unauthorized delegation of authority to the probation officer. In Pedro Q., the minor's probation officer added probation conditions—a curfew and travel restrictions—that the juvenile court did not impose. (Id. at p. 1371.) The Court of Appeal found only a court can impose or modify probation conditions. "It is well settled that courts may not delegate the exercise of their discretion to probation officers." (Id. at p. 1372.) While probation officers have broad authority to give directives to probationers, that authority must derive from probation conditions imposed by the court. "Probation officers have wide discretion to enforce court-ordered conditions, and directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms. This was not the case here. This was not a derivative order that flowed logically from a general term, such as an order to 'violate no laws,' but an altogether new term." (Id. at p. 1373.)
Defendant's case is readily distinguished from Pedro Q. Defendant attacks a condition imposed by the trial court whereas the juvenile court in Pedro Q. "was completely unaware of the travel restriction added to Pedro's probation conditions." (Pedro Q., supra, 209 Cal.App.3d at p. 1373.) The probation officer in this case has not had the opportunity to impose a condition not authorized by the trial court. If the officer were to do so, it would then be invalid under Pedro Q. However, in the context of this appeal, Pedro Q. is inapposite.
We also find that the condition at issue here does not authorize a probation officer to impose new probation conditions. A probation condition to " '[f]ollow such course of conduct as the probation officer may prescribe' " was upheld against a People v. Lent (1975) 15 Cal.3d 481 challenge in People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240. There, the appellate court noted that under sections 1202.8 and 1203, "the court sets conditions of probation and the probation officer supervises compliance with the conditions." (Kwizera, at p. 1240.) As such, the trial court has the power and responsibility to impose conditions such as drug testing and reporting obligations. (Ibid.) In order to supervise compliance with such conditions, the probation department must have authority to set the time and place for administering tests or reporting to probation. (Ibid.) In Kwizera's case, the challenged condition was "reasonable and necessary to enable the department to supervise compliance with the specific conditions of probation." (Ibid.) The court added, the condition "does no more." (Ibid.) Further, because the trial court lacks power to impose unreasonable probation conditions, it could not authorize a probation officer to do so through the challenged condition. (Ibid.) Finally, it did not authorize the probation officer to determine reasonable probation conditions. (See id. at pp. 1240-1241 [the condition "does not . . . [citation] . . . authorize the probation officer to irrationally tell a defendant 'to jump' "].)
The same applies here. The condition here does not improperly delegate authority to impose probation conditions to the probation officer, but instead gives the probation officer tools to supervise compliance with the specific conditions of probation. It is a valid condition which the trial court had the authority to impose. Defendant's contention to the contrary is without merit. 2.0 Dueñas
Citing Dueñas, defendant claims the restitution fine, court operations assessment, and criminal conviction assessment must be stayed pending a hearing on her ability to pay them.
2.1 Background
Dueñas involved a defendant who pleaded no contest to a misdemeanor charge of driving without a license; if she did not obtain a valid license at the time of sentencing, she would be sentenced to 30 days in jail. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) If Dueñas obtained a valid license, she would be placed on three years of probation and subject to a $300 fine. (Id. at p. 1162.) She did not have a valid license at sentencing and agreed to serve an additional nine days in jail in lieu of paying the fine. (Ibid.) The court also ordered Dueñas to pay $220 in fines and fees, consisting of a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under section 1465.8, and a $150 restitution fine under section 1202.4. (Dueñas, at p. 1162.)
Dueñas successfully moved at sentencing for a hearing on her ability to pay the previously imposed attorney fees (§ 987.8, subd. (b)) and other fees. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) The following facts were established at the hearing: Dueñas had cerebral palsy and was the married mother of two young children. (Id. at p. 1160.) Her illness forced her to drop out of high school and she had no job; her husband had no employment other than occasional short-term construction work. (Ibid.) The family received a total of $999 a month in benefits, which did not cover all basic necessities. (Id. at p. 1161.) The family had no home, alternating between staying at her mother's and mother-in-law's homes. (Ibid.) As a teenager, Dueñas sustained three juvenile citations and could not afford to pay the $1,088 in assessments stemming from these cases, which in turn led to her driver's license being suspended. (Ibid.) Over the years, she accumulated three misdemeanor convictions for driving without a license and one conviction for failure to appear, leading to her serving a total of 51 days in jail in lieu of paying fines, and 90 days in jail for the offenses. (Ibid.)
The trial court found the court facilities fee and court operations assessment were mandatory, Dueñas had not shown a statutory reason not to pay the $150 restitution fine, and rejected her constitutional argument that the court must consider her ability to pay as a matter of equal protection and due process. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) Division Seven of the Second Appellate District transferred the matter from the appellate division and reversed. (Id. at pp. 1160, 1163.) It held that imposing the court operations assessment or the court facilities assessment, neither of which was intended to be punitive, would violate the state and federal due process guarantees unless the sentencing court first determined the defendant's ability to pay the assessments. (Id. at p. 1168.) Citing Griffin v. Illinois (1956) 351 U.S. 12, 17 , the Court of Appeal found the constitutional guarantees of due process and equal protection prohibit a state from "inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Dueñas, at p. 1166.) The Dueñas court analogized Dueñas's situation to the invalid practices of jailing a convicted defendant who is unable to pay a fine or assessment or automatically revoking probation for an indigent defendant who cannot pay a fine and restitution. (Id. at p. 1167; see In re Antazo (1970) 3 Cal.3d 100, 103-104 [requiring indigent defendant to serve jail time in lieu of paying fine violates equal protection] and Bearden v. Georgia (1983) 461 U.S. 660, 667-668 [76 L.Ed.2d 221, 230] ["if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it"] (Bearden).) Such a mechanism was unfair to indigent defendants and served no rational purpose, as the State could not accomplish its goal of collecting money. (Dueñas, at p. 1167.) The court concluded such a burden "in effect transform[s] a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.)
The restitution fine was an additional punishment for the crime. (Dueñas, supra, 30 Cal.App.5th at p. 1169.) Section 1202.4, subdivision (c) precluded a court from considering a defendant's ability to pay the statutory minimum fine, which raised serious due process concerns for indigent defendants. (Dueñas, at pp. 1171-1172.) The Dueñas court concluded that the trial court must stay execution of this fine until the People prove the defendant's ability to pay. (Id. at p. 1172.) The Court of Appeal accordingly stayed the restitution fine and remanded for a hearing on Dueñas's ability to pay the court facilities fee and court operations assessment. (Id. at pp. 1172-1173.) The Supreme Court declined to review the case and denied a request to depublish Dueñas.
2.2 Analysis
The first pushback against Dueñas came in Justice Benke's concurring opinion in People v. Gutierrez (2019) 35 Cal.App.5th 1027 (Gutierrez). The concurrence found "the Dueñas decision incorrectly applies California statutes; and in addition, is fundamentally flawed in that general 'fairness' grounds of due process and/or equal protection principles do not afford a defendant a preassessment ability-to-pay hearing before a trial court imposes fines and fees on him or her." (Id. at p. 1038.) Regarding statutory errors, the concurrence found, "the adjective 'present' used by the Dueñas court in its ability-to-pay analysis is nowhere to be found in Penal Code sections 1202.4 and 1465.8, or in Government Code section 70373." (Ibid.) More importantly, "Dueñas in its analysis completely disregarded unambiguous language in subdivision (c) of section 1202.4 stating that inability to pay cannot be considered when only the statutory minimum is imposed, as was the case there. Moreover, by also adding the word 'present' to the ability-to-pay analysis with respect to the restitution fine, Dueñas ignored section 1202.4, subdivision (d), which says the exact opposite: 'Consideration of a defendant's inability to pay may include his or her future earning capacity.' (Italics added.) A court lacks the power to rewrite a statute either so as to make it conform to a presumed intention that is not stated, or to ignore a statute's plain and unambiguous language." (Ibid.)
Subsequent references to Gutierrez are to the concurring opinion.
Justice Benke's concurrence also criticized Dueñas's constitutional analysis, finding its heavy reliance on Griffin "misplaced." (Gutierrez, supra, 35 Cal.App.5th at p. 1039.) Unlike the fines and fees imposed as a result of criminal conviction in Dueñas, Griffin addressed conditioning access to the courts on wealth. "Specifically, that case concluded that due process and equal protection guaranteed an indigent criminal defendant a free transcript of trial proceedings in order to provide that defendant with access to a court of review, where he would receive an adequate and effective examination of his criminal conviction." (Gutierrez, at p. 1039; see Griffin v. Illinois, supra, 351 U.S. at p. 16 ["petitioners could not get appellate review of those errors solely because they were too poor to buy a stenographic transcript"].) Finding imposition of the fine and fees does not deprive a defendant of access to the justice system, the concurrence rejected Dueñas. (Gutierrez, at p. 1039.)
Division One of the Second Appellate District declined to apply Dueñas's "broad constitutional rule" in People v. Caceres (2019) 39 Cal.App.5th 917, 926 (Caceres). Citing the Gutierrez concurrence, the Caceres court noted that "[f]ees imposed after a case is completed, and judgment entered, however, do not deprive defendants of access to justice." (Id. at p. 927, fn. omitted.) The Court of Appeal also found fault with Dueñas's reasoning that civil judgment and the other potential consequences faced by defendants who do not pay assessments is an extra punishment suffered only by indigent defendants. (See Dueñas, supra, 30 Cal.App.5th at p. 1168.) "Although civil judgments potentially can have significant negative consequences, not only for indigent individuals but also for any civil defendant, Dueñas cites no authority for the proposition that those consequences constitute 'punishment' rising to the level of a due process violation." (Caceres, at p. 927.) Caceres also rejected Dueñas's finding that the mandatory fine and fees were unfair and did not advance a legitimate goal. "By holding that trial courts must tailor the imposition of costs to each defendant's ability to pay, Dueñas in effect proposes a ' "less drastic remedial alternative[]" ' [citation] to the current statutory scheme, which is more than what due process requires. Given Dueñas's unique facts, we eschew a conclusion that the entire system of imposing postconviction fees and fines is irrational and contravenes due process." (Caceres, at p. 928.) In spite of its extensive and well-founded criticism of Dueñas, Caceres declined to reject it outright, finding Dueñas distinguishable on its facts and declining to apply it to Caceres, whose crime of criminal threats was not driven by poverty as Dueñas's was. (Caceres, at pp. 928-929.)
This analysis from the Gutierrez concurrence was adopted by the first decision specifically rejecting Dueñas, People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1069, from the Fifth Appellate District. In addition to the constitutional and statutory analysis from Justice Benke's concurrence, Aviles also reiterated another critique from the Gutierrez concurrence, the potentially significant reach of Dueñas. " 'On a practical note, it takes little imagination to envision the potential expansion of the holding of Dueñas to a multitude of other fines or fees that were not the subject of that case, or the instant case. One such possible fine is victim restitution, which is encompassed in subdivision (f) of section 1202.4—one of the same statutes at issue in Dueñas. Although that subdivision expressly requires a court to order "full restitution" to the victim, should the constitutional basis of Dueñas stand, any restitution hearing might require a finding of present ability to pay victim restitution.' " (Aviles, at p. 1069, quoting Gutierrez, supra, 35 Cal.App.5th at p. 1039.)
In People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946) (Hicks), Division Two of the Second Appellate District provided additional reasons for rejecting Dueñas. Consistent with the Gutierrez concurrence and Caceres, the Hicks court observed that the fine and assessments addressed in Dueñas do not deprive a convicted defendant of access to the courts and imposing those duties on a defendant does not rise to the level of incarceration for nonpayment because of a defendant's indigence. (Hicks, at p. 326.) Recognizing a court can expand the boundaries of the law beyond current precedent, the Hicks court asked: "Is Dueñas's expansion of due process in a manner that grants criminal defendants a protection not conferred by either its foundational pillars a correct interpretation?" (Id. at p. 327.)
We cite Hicks pursuant to California Rules of Court, rule 8.1115(e)(1).
The answer was no, for two reasons. (Hicks, supra, 40 Cal.App.5th at p. 327, rev.gr.) "First, Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them." (Ibid.) The two cases cited by Dueñas for the proposition that an indigent defendant cannot be punished by incarceration for an inability to pay a fine, Antazo and Bearden, also hold that the fine may nonetheless be imposed on an indigent defendant even if he or she is presently incapable of paying it. (Hicks, at p. 327; see In re Antazo, supra, 3 Cal.3d at p. 116 ["we do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause. Depending upon the circumstances of the particular case and the condition of the individual offender, there are a variety of ways in which the state may fine the indigent offender, as alternatives to imprisonment, without offending the command of equal protection"]; Bearden, supra, 461 U.S. at p. 669 ["The State, of course, has a fundamental interest in appropriately punishing persons -- rich and poor -- who violate its criminal laws. A defendant's poverty in no way immunizes him from punishment."].) "By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision). What is more, Dueñas mandates the very type of 'inverse discrimination' condemned by the court . . . ." (Hicks, at p. 327.)
The other reason to decline to follow Dueñas was that its rule was "inconsistent with the purposes and operation of probation." (Hicks, supra, 40 Cal.App.5th at p. 327, rev.gr.) One way to achieve probation's purpose of rehabilitating the defendant and integrating the defendant into society was "to require the defendant-probationer to make an effort to repay his [or her] debt to society." (Ibid.) For this reason, the Legislature authorized trial courts to require a defendant to work so as to earn money to pay any fine or restitution. (Ibid.; see § 1203.1, subd. (d).) Neither equal protection nor due process prevent a court from revoking probation for a defendant who willfully fails to pay a fine or restitution. (Hicks, at p. 327; see Bearden, supra, 461 U.S. at p. 668 ["If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection"].) "By precluding the imposition of assessments, fines and fees at the outset (and thus absolving them of any duty to pay them), Dueñas deprives indigent probationers of any time to repay those obligations. Dueñas repeatedly labels indigent defendants as 'blameless' for their situation [citation], but what label would a trial court be effectively attaching to the able-bodied, 39-year-old probationer in this case were it to refuse to impose any financial obligations on the ground that it did not believe he could pay a little over $16 per month during his three years of probation?" (Hicks, at p. 328, fn. omitted.)
The Hicks court recognized that Dueñas presented the "nettlesome" policy question of when it is appropriate to require often indigent criminal defendants to help pay the costs of the court system and to pay into the victim restitution fund. (Hicks, supra, 40 Cal.App.5th at p. 328, rev.gr.) That question must be addressed legislatively rather than through constitutional law. "How best to balance these competing interests—and what alternatives are best used to keep funding the courts and to continue providing some measure of restitution and solace to our state's crime victims—is a question to which, in our view, the federal and California Constitutions do not speak and thus have left to our Legislature." (Id. at p. 329.)
We agree with the Gutierrez concurrence and the other decisions rejecting Dueñas. That decision ignored clear statutory language allowing courts to consider a defendant's future earning potential when determining a defendant's ability to pay. The due process and equal protection cases it relies on are readily distinguished, as the fine and assessments here do not deprive defendant of access to the courts or mandate incarceration for an inability to pay due to indigency. More importantly, Dueñas's effective grant of immunity for defendants who cannot currently pay is directly contradicted by the California Supreme Court and United States Supreme Court decisions it relies on for its constitutional analysis. Finally, Dueñas frustrates a legitimate goal of probation and threatens to extend to victim restitution awards. To what extent often indigent defendants must bear the burden of funding the courts and maintaining the victim restitution fund is a legislative rather than a judicial matter.
A recent case declining to apply Dueñas to victim restitution joined the cases rejecting that decision. (See People v. Allen (2019) 41 Cal.App.5th 312, 318, 326.)
" '[I]t is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.' [Citation.]" (United States v. Clark (1878) 96 U.S. 37, 49 [24 L.Ed. 696, 701], dis. opn. of Harlan, J.) Dueñas did not follow the first Justice Harlan's sound advice. While the defendant in Dueñas is undoubtedly sympathetic, her plight cannot justify its rule. We decline to follow Dueñas and accordingly reject defendant's contention.
While some opinions rejecting Dueñas have, in the alternative, analyzed the fine and assessments under the excessive fine provisions of the Eighth Amendment and article I, section 17 of our state Constitution (see Gutierrez, supra, 35 Cal.App.5th at p. 1034; People v. Allen, supra, 41 Cal.App.5th at p. 326) we decline to do so here as defendant did not raise the issue at trial, forfeiting any such claim. While the Eighth Amendment excessive fines clause was incorporated into the Fourteenth Amendment after defendant's sentencing (see Timbs v. Indiana (2019) 586 U.S. ___, ___ [203 L.Ed.2d 11, 16]), California courts have entertained such attacks on fines under the state constitutional counterpart well before defendant's sentencing (see, e.g., People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728). Any Eighth Amendment contention here is forfeited. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Butz, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Hoch, J.