NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF18-2199)
Following a trial, a jury found defendant Dwight Clayton Belton guilty of grand theft. He was sentenced to an aggregate state prison term of seven years, including a one-year prior prison term enhancement. On appeal, he contends: (1) the imposition of the restitution fine and court fees violates his constitutional rights because there was no determination of his ability to pay them; and (2) his prior prison term enhancement must be vacated based on the retroactive application of Senate Bill No. 136. We will modify the judgment to strike defendant's enhancement for the one-year prison prior. We will otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant robbed a bank, and he was identified by a bank teller and a security guard. Following a trial, a jury found defendant not guilty of the charged count of second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)—count 1), but the jury found him guilty of the lesser included offense of grand theft (§§ 484, subd. (a), 487, subd. (a)). In a bifurcated proceeding, the court found true allegations that defendant had suffered several prior serious felony convictions (§§ 667, subd. (a)(1), 1192.7) and served two prior prison terms (§ 667.5, former subd. (b)).
Undesignated statutory references are to the Penal Code.
The court imposed an aggregate sentence of seven years, as follows: the upper term of three years for grand theft, doubled to six years due to the prior strikes, plus a consecutive one-year term for a prison prior (§ 667.5, former subd. (b)). The trial court imposed various fines and fees, including a mandatory minimum restitution fine in the amount of $300, a $40 court operations assessment, and a $30 court facilities conviction assessment. About eight months after sentencing, after he had already filed his notice of appeal, defendant filed a request with the trial court asking the court to strike the fees and stay the restitution fine based on the newly published holding in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164, 1168 (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210) (Dueñas). Counsel suggested that the fees could be corrected by the trial court with greater judicial economy than raising the issue on appeal. The court denied the request.
1.0 Dueñas-based Challenge
Defendant argues that imposition of the following fines and fees violated his constitutional rights because the trial court did not determine his ability to pay before imposing them: (1) a restitution fine of $300 (§ 1202.4), (2) a court operations assessment of $40 (§ 1465.8), (3) a court facilities conviction assessment of $30 (Gov. Code, § 70373), and (4) a booking fee in the amount of $154.48 (Gov. Code, § 29550.2). He asks this court to stay each of these fines and fees. The Attorney General responds by arguing this claim is forfeited by failing to object to the imposition of these fines and fees during the sentencing hearing. Assuming, without deciding, defendant's challenges to the restitution fine and fees have not been forfeited, we conclude Dueñas was wrongly decided and therefore reject defendant's claim on that basis.
Neither the abstract of judgment nor the transcript of the sentencing hearing reflects the imposition of such a fee. The only reference to a booking fee is found on the docket, minute, and commitment sheet.
In Dueñas, the defendant (Dueñas) was an indigent and homeless young mother with cerebral palsy who pleaded no contest to driving with a suspended license, a crime she committed after losing her license because she was unable to pay certain fines associated with three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The trial court placed Dueñas on probation and, among other things, imposed various mandatory fines and fees. (Id. at pp. 1161-1162.) Dueñas asked the trial court to set a hearing to determine her ability to pay. (Id. at p. 1162.) At the hearing, the trial court found Dueñas lacked an ability to pay but nevertheless confirmed imposition of court facilities and court operations assessments, noting both were "mandatory regardless of Dueñas's inability to pay them," and also confirmed imposition of a restitution fine in the minimum amount, finding "Dueñas had not shown the 'compelling and extraordinary reasons' required by statute (. . . § 1202.4, subd. (c)) to justify waiving this fine." (Id. at p. 1163.) The trial court also rejected Dueñas's constitutional arguments that due process and equal protection prohibited imposition of these fines and fees without a determination that she possessed the ability to pay them. (Ibid.)
Our colleagues at the Second Appellate District, Division Seven, reversed. With respect to the court facilities and court operations assessments, the court held "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes [these] assessments." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted 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." (Id. at p. 1166, citing Griffin v. Illinois (1956) 351 U.S. 12, 17 [100 L.Ed. 891, 898] (Griffin).) Analogizing the imposition of these mandatory assessments, without first determining an ability to pay in the situation in which a convicted defendant is required to serve jail time if he or she is unable to pay a fine and penalty assessment (invalidated by our Supreme Court in In re Antazo (1970) 3 Cal.3d 100, 103 (Antazo)) and the situation in which an indigent convicted defendant's probation is automatically revoked upon his or her failure to pay a fine and restitution (invalidated by the United States Supreme Court in Bearden v. Georgia (1983) 461 U.S. 660, 667-668 [76 L.Ed.2d 221, 229-230] (Bearden)), the court stated: "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive. A fine on indigent people 'is not imposed to further any penal objective of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose; the defendant cannot pay because he is indigent . . . .' [Citations.] Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money." (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.)
With respect to the minimum restitution fine, the court held imposition of this fine without first determining ability to pay, while done in accordance with the statutory scheme, also violated due process; execution of such a fine "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, 30 Cal.App.5th at p. 1164.) The court noted the restitution fine is recognized to be "additional punishment for a crime" and concluded the statutory prohibition on considering ability to pay when imposing the minimum fine is fundamentally unfair because it "punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.)
There is presently a split of authority with respect to whether or not a defendant who did not object to the trial court's imposition of mandatory fines and fees based on inability to pay forfeits a Dueñas claim. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [finding forfeiture] with People v. Castellano (2019) 33 Cal.App.5th 485, 489 [no forfeiture].) We need not weigh in on this forfeiture issue here because, as we explain immediately below, even assuming defendant's claim is properly preserved for review, there was no constitutional violation.
1.3 No Constitutional Violation
Reactions to the new constitutional principle articulated in Dueñas have been mixed. Although many courts have followed its reasoning, others have distinguished (see People v. Caceres (2019) 39 Cal.App.5th 917, 926-927) or disagreed with the opinion (see People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 (Hicks); People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068). We join the latter group and limit our discussion of the matter to rejecting Dueñas outright.
In Hicks, our colleagues at the Second Appellate District, Division Two, rejected the Dueñas court's reliance on "two strands of due process precedent" in "fashioning" a new constitutional principle requiring an ability to pay determination before imposing the fine and assessments challenged therein. (Hicks, supra, 40 Cal.App.5th at p. 326, rev.gr.) The first strand, starting with Griffin, supra, 351 U.S. 12, 17, "secures a due process-based right of access to the courts." (Hicks, p. 325.) This strand of precedent, however, "does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Id. at p 326.) The second strand of due process precedent relied upon by the Dueñas court (see, e.g., Antazo, supra, 3 Cal.3d 100 and Bearden, supra, 461 U.S. 660, described above) "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, at p. 325.) This strand "also does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Id. at p. 326.)
We may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
Finally, the Hicks court also concluded Dueñas erred in expanding due process protections in the manner it did, explaining: "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them. Our Supreme Court in Antazo, supra, 3 Cal.3d 100, expressly declined to 'hold that the imposition upon an indigent offender of a fine [or] 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.' [Citation.] Antazo refused to prohibit the imposition of fines and assessments upon indigent defendants for good reason, which the United States Supreme Court explained best: 'The State . . . has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,' such that '[a] defendant's poverty in no way immunizes him from punishment.' (Bearden, supra, 461 U.S. at pp. 669-670.) To confer such an immunity, that court has said, 'would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other . . . .' (Williams[ v. Illinois (1970)] 399 U.S. [235,] 244 .) 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 in both Bearden and Williams." (Hicks, supra, 40 Cal.App.5th at p. 327, rev.gr.)
We agree with the Hicks analysis in its entirety. The strands of precedent relied upon by the Dueñas court in expanding due process protections to require an ability to pay determination before imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, such an expansion. Imposition of the challenged financial obligations has not deprived defendant of access to the courts. Nor has defendant been incarcerated because of his inability to pay. Rather, he was incarcerated because of his crime. He was sentenced to seven years for this crime and will have an opportunity to attempt to pay these obligations, e.g., from prison wages if he obtains employment while in prison. Should the restitution fine and court fees "remain unpaid at the end of his [prison term], the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort. At this point in time, however, due process does not deny defendant the opportunity to try." (Hicks, supra, 40 Cal.App.5th at p. 329, rev.gr.)
2.0 Prior Prison Term Enhancement
We note that while the trial court found defendant had suffered two prior prison terms, it imposed sentence for only one prior prison term. --------
On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill No. 136 narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined. The amended provision states in pertinent part: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b).)
Both of defendant's prior prison terms were for robbery, not a sexually violent offense. Accordingly, he is entitled to the ameliorative benefit of the statute if Senate Bill No. 136 is applied retroactively. We agree with the parties that the amendment provided by Senate Bill No. 136 should be applied retroactively in this case. Whether a particular statute is intended to apply retroactively is a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 [noting "the role of a court is to determine the intent of the Legislature"].) Generally speaking, new criminal legislation is presumed to apply prospectively unless the statute expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced punishment for criminal conduct, an inference arises under In re Estrada (1965) 63 Cal.2d 740 (Estrada) " 'that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citations.]" (Lara, at p. 308.) "A new law mitigates or lessens punishment when it either mandates reduction of a sentence or grants a trial court the discretion to do so." (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Here, Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b), prior prison term enhancement, thus rendering ineligible many individuals, including defendant who served prior prison sentences for robbery. There is nothing in the bill or its associated legislative history that indicates an intent that the court not apply this amendment to all individuals whose sentences are not yet final. Under these circumstances, we conclude Estrada's inference of retroactive application applies. (See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying Estrada inference of retroactivity to legislative changes to § 12022.6, subds. (a) and (b) enhancements].) Accordingly, we will modify the judgment to strike defendant's prior prison term enhancement.
The judgment is modified to strike defendant's section 667.5, former subdivision (b), prior prison term enhancement. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
Butz, Acting P. J. I concur: /s/_________
Krause, J. Mauro, J., Concurring and Dissenting.
I fully concur in the majority opinion except for part 1.0 of the Discussion, pertaining to fines, fees and assessments. As to that portion of the opinion, I dissent.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would conclude that Dueñas presented a new approach to considering fines, fees and assessments, an approach that could not reasonably have been anticipated. (People v. Castellano (2019) 33 Cal.App.5th 485, 489.) Accordingly, I would remand the matter to give the trial court an opportunity to consider defendant's ability to pay the fines, fees and assessments.