*1 Sept. 1970.] Bank. No. 13857. [Crim. Habeas ANTAZO on Corpus.
In re SIMEON
Counsel Portman, Defender,
Sheldon Public for Petitioner. Thomas General, Harris, C. Lynch, Jr., Albert Attorney W. Assistant Attor- General, and John T. ney General, Murphy, Deputy for Attorney Respond- ent.
Opinion — SULLIVAN, C. J. We are confronted here with the Acting question whether a convicted defendant sentenced or otherwise upon being ordered to a and a pay assessment can be penalty to serve required them out in at a jail rate day because he specified per is unable pay infra, them. As we a such defendant has no explain choice at all and in for his reality being a imprisoned direction poverty, Although for confinement for default in of a fine may payment appear apply equally one, to both the rich offender the former has the actually poor while of the latter confinement the right escape his opportunity difference cannot, such a is a hollow one. We cannot countenance what he it, we and, state necessitating absent interest any in treatment compelling basis of on the it constitutes invidious discrimination conclude that Amend the Fourteenth clause of wealth in violation choice. a Hobson’s such given ment. We will permit Antazo, herein, the Santa confined in Munsell was Simeon Center in pur- Clara the Elmwood Rehabilitation County Milpitas jail as a condi- him to suant to a court order requiring pay, superior $2,500 assessment tion of fine in the amount probation, plus or, to be in $625, lieu of thereof imprisoned amount amount. Petitioner $10 each one unpaid county jail day Code Penal sections 12051 seeks a writ of habeas on the ground corpus (§ 1205) and the 13521,2 of a fine which authorize the imposition pertinent provides part: 1205 of the Penal Code 1Section fine, may judgment punishment, other “A that the with without defendant may direct that is satisfied and further imprisoned direct he be until the fine also begin any imprisonment imprisonment expiration such continue after any imprisonment other to which he part punishment or of judgment Every specify extent of been sentenced. such fine, must theretofore have the day one which not be more than must fine, ($5) any case the term for for each five dollars nor exceed *5 might imprisonment be to of he has been defendant sentenced for the offense which custody nonpayment a fine shall be entitled to convicted. A defendant held in for of custody, day specified on fine is in at the rate in the credit the for each he so held misdemeanor, judgment judgment. has convicted When the defendant been of pay may also fine a limited pay that the defendant time or direct he the within specified payment installments on dates and that in default of as therein in stipulated imprisoned the the either he be in discretion of court until the defaulted full; the fine satisfied in but unless installment is satisfied or until is such direction given judgment, payable is the the fíne shall be forthwith. in “Except probation, provided as otherwise in case fines as conditions of of court, judge fine to the of the or to the thereof the defendant must the clerk if clerk, custody unless taken into of there no the defendant is the fine, payments custody in event made while he is in shall made to the officer custody paid paid by holds in so over who him all amounts shall be forthwith judgment. such officer to the court clerk to report which rendered the shall the thereof, clerk, every payment any part court default in of a fine or if there is no or given the court fine or it take notice such time of a payment shall of default. If has been installments, shall, upon payable any been made the default in court in payment immediately why may arrest the defendant and order him to show cause order the thereof, imprisoned he not be fine or should until the installment as case be, fine, installment, payable is satisfied in and it is full. If forthwith paid, so proceedings, immediately the court without commit shall further custody custody proper defendant officer to be the fine or held until thereof, be, provisions installment section California as the case is satisfied in full. The of this apply any any shall violation of the imprisonment.” statutes State codes .or punishable by a fine or a fine and provides pertinent part: 2Section 13521 “On and the effective date of this after section, penalty there shall be levied a five dollars assessment in an amount (§ 13521) of a assessment as well levy imprisonment pending penalty (§ 1205) thereof are unconstitutional as to him. He applied contends his that his to these statutes petition pursuant as a result of his due to his his fine and inability, solely indigency, assessment an invidious discrimination based on constitutes poverty in violation clause of the Fourteenth Amendment to the United States Constitution. We issued order to show cause and ordered released recognizance his own final deter- petitioner pending mination of this matter.
We first set forth the facts. On November pertinent hours of the a fire broke out at early the San Jose morning, Speed Marine officers San Jose Police dis- Shop. Investigating Department unlocked, intact, covered the rear door was that all windows were and that the Clausman, alarm had not burglar sounded. Steven one owners, informed the that certain $320 items and in cur- police inventory were from the Arson rency missing later shop. investigators determined that flammable had liquid been used to set five fires inside the separate establishment.
The Salinas Police later received information that Department petitioner was in possession missing speed contacted equipment. They petitioner and he surrendered. After voluntarily advised of his constitutional being rights, gave statement to the freely Salinas and to arson police investigators from San Jose. In this statement admitted that he had with Clausman set conspired fire to the that he was to remove shop, some it inventory retain until Clausman had received settlement losses, for his $1,000 and that he was to receive for his in the affair. part Petitioner was booked at the Santa Clara on a charge of arson County jail and released on his own recognizance. Clausman was also on arrested charge. same *6 13, 1969,
On the Santa January Clara Grand returned an County Jury indictment against and petitioner Clausman" them with arson charging (§ 448a), arson of insured (§ 450a), personal and property conspiracy to commit (§ 182, substantive offenses 1). said subd. Petitioner was ar- ($5) twenty every ($20), for thé'reof, fine, dollars every fraction of penalty, and forfeiture offenses, and collected the courts for It criminal ... shall then be transmitted to Treasury the deposited Training State to be in the Peace Officer’s . Fund. . .” any case person “In where a any convicted of offense to which this applies section imprisoned satisfied, is until the judge may fine the any part waive all or penalty payment assessment the of which hardship would work a person the on family.” convicted or his immediate Hereafter, indicated, unless otherwise all section references are to the Penal Code. defendants Both own recognizance. and released his again
raigned for trial. was set not and cause entered of guilty pleas and entered withdrew his of guilty Petitioner plea subsequently other two counts dismissed the the arson count. The court of plea guilty and investigation officer for report. and referred the matter to the probation meantime own recognizance. Petitioner remained on his large trial. A at Clausman’s jury he witness for the testified as a prosecution on three counts. convicted Clausman all 15, 1969, were for arraigned judg- Clausman and
On petitioner April men, both the trial judge After considering ment. probation reports and defendants same standing stated that he considered both “as these for identical before the Court with responsibility shoes respect on de- of sentence each The court then ordered that imposition matters.” and that each defendant fendant be for a of three years, suspended period condition, others, that each be on the among upon probation released $2,500 “or $625 lieu fine of assessment plus penalty $10.00 for County thereof one Jail each day unpaid.” the court that because defender informed deputy public petitioner fine, out his condition would have to serve financial probably his denied the penalty the court to waive the assessment. The judge requested that he did not believe could request, stating imprisoned assessment, Clausman his fine and assessment. nonpayment paid and was released on the funds with following morning; lacking petitioner, which to make his sentence forthwith the rate began serving payment, defender order. On July specified deputy public assessment; again the trial waive requested judge request denied. i was again he been
Petitioner that his in that illegal complains codefendant, because of his while his liberty his solely indigency deprived assessment, funds which to both has been possessed released. *3asserts in his that habeas is unavailable to
Respondent* corpus .return and that in event the above-mentioned condition any proba (a) tion of fine “is ordering petitioner’s imprisonment4 (b) without constitutional is a infirmity” reasonable one relating hi's reformation and rehabilitation. In traverse to the return petitioner’s *7 Prelsnik, 3Respondent County, although is Charles the of Clara J. Sheriff Santa the by appears respondent return to the to show cause have order been both the singular. the People. we shall respondent Hereafter refer to in the language 1205) will use (§ although petitioner 4We the of the statute was confined county jail.
107 order, that broadens his attack on the its contending petitioner unreasonable since violated his “constitutional conditions were they rights due excessive fines as against equal provided process, protection of Fifth, and Fourteenth Amendments the Constitution Eighth 1, States, 6 and of United and Article Sections 13 Constitution of relief State of California.” We first consider availability sought. argument of is as An follows: lies from gist respondent’s appeal 3, 1237, an order granting conviction subd. probation following (citing § revision); it read as the 1968 did not as a prior petitioner appeal; rule, habeas cannot serve as a (cit- substitute for an general corpus appeal (1953) 756, 513]); In re Dixon 41 Cal.2d 759 P.2d ing peti- [264 urged tioner has no circumstances to warrant an to such special exception rule.
We confronted such an in In re argument (1967) Black 66 881 Cal.2d 429, 428 P.2d Cal.Rptr. where we had [59 “We referred say: 293] to such restrictions on the (1953) use the writ In re Dixon 41 Cal.2d 756, 759 P.2d ‘The that [264 rule is habeas cannot general corpus 513]: serve a and, substitute for an in the absence of circum appeal, special stances an excuse for constituting failure to the writ remedy, employ will not been, not, lie where the claimed errors could but have were raised from upon timely appeal judgment (In conviction. [Citations.]’ 547, In re Shipp (1965) accord: 3, Cal.2d 551-552 Cal.Rptr. [43 571]; P.2d (1949) In 740, re Manchester 33 Cal.2d 881]; P.2d [204 In re (1940) 701, Connor 16 Cal.2d P.2d But we made [108 clear in Dixon and in other cases that although remedy or other by appeal direct available, attack might have been writ habeas never corpus theless will lie where circumstances re special (In are Newbern presented. (1960) 786, 53 Cal.2d 789-790 116]; 350 P.2d In re Cal.Rptr. [3 Osslo (1958) 51 Cal.2d 1]; In 376-377 P.2d re Bine [334 Cal.2d Dixon, 817-818 In P.2d re supra, In Seeley re 29 Cal.2d 24], P.2d It has been said that ‘requirement exhaustion of the or other ... appellate remedy merely discretionary policy governing exercise of the court’s reviewing jurisdiction to issue the (Witkin, writ.’ Cal. Criminal Procedure 769; see re Bell (1942) 19 Cal.2d 22].)” (Id. P.2d 886-887.) pp.
In the instant case bases his for a writ habeas petition a constitutional he has been magnitude—that corpus question great in violation of secured to his him liberty rights deprived clause. held of a This court has constitutional protection presence circumstances constitutes extraordinary question importance special sufficient to relieve a from the above-mentioned operation *8 108 (In 389 (1969) Cal.Rptr. Allen Cal.2d re 71 [78 rule.
general P.2d See 143]; (1942) 22]. Cal.2d In re Bell 455 P.2d 814, 817 Cal.Rptr. In re Oxidean Cal.App.2d also Thus, as we said Procedure, 770.) supra, Witkin, § Cal. Criminal Bell, 488, 495, fewa courts require re Cal.2d “While in can be habeas be exhausted before corpus remedies available by appeal all [citation], including most jurisdictions, to test constitutionality invoked view of . . .” In California, mandatory. do not make the requirement that the demonstrated conclude that instant foregoing rule. Ac above-mentioned circumstances within the case special presents order does from the preclude his failure probation cordingly appeal the facts of the constitutional our consideration question presented this case. that his
We, therefore, main contention imprison- take up petitioner’s the fine on his financial because of inability ment solely clause of the him offends as a condition protection that, while ostensibly The essence of this claim is Fourteenth Amendment. fine, a sentence to both the rich and the actually poor, applying is until fine a direction that a defendant together imprisoned which is in denied satisfied, reality to the rich defendant advantage an gives in $100 days “The ‘choice’ to the one. paying spending poor $100. The who cannot raise no choice all really jail person for being is no more or no less than imprisonment resulting imprisonment Justice (Remarks of former Associate ...” Goldberg, poor, Goldberg 205, 221.) and Governmental Action 39 N.Y.U.L.Rev. Equality case, when it in another and in the context of the To way present put deemed amount is codefendants equally fine in the same imposed upon in the event of with the added for their imprisonment culpable provision to the rich defendant but denied to its is given nonpayment, option his release by one. While the man has the to obtain poor “right” pay- poor fine, to him. It is this ment actuality “right” meaningless attacks.5 in the final treatment of each which difference First, we are aware that two observations. We make preliminary has been fines ordering practice law and has and well established im Anglo-American prevailed long (Williams v. Illinois states. time in the courts of most our some Fines, 2018]; Note, Im- S.Ct. U.S. 235 ignoring peti complaint, “In addition petitioner’s 5We do not consider further resources, gave no consideration what court below also tioner’s lack of financial , willing coopera guilt . nor to his prompt ever to his surrender and admission of . . case, to the throughout investigation to his assistance continued nor tion attorney testifying [against Clausman].” district
109
prisonment,
“Thirty
Thirty Days”
and the Poor:
Dollars or
57
(1969)
778,
considered,
780-787.) Nevertheless,
Cal.L.Rev.
while a factor to be
of
does not foreclose its reas
long-standing recognition
practice
sessment in the
of the continued evolution of fundamental
light
precepts
of our constitutional
for “neither the
of
nor the
system,
practice
antiquity
of
fact
steadfast
adherence
it
the cen
legislative
judicial
through
Illinois,
attack,
insulates
(Williams
turies
it from constitutional
.
.”
v.
.
U.S.
An
concern for
abiding
all
areas of
not
today’s society has
established
equality
spared
practices
from
under the
exposure
(See,
spotlight
equal protection principles.
Protection,
Tight
Exclusionary
Equal
Little Islands:
e.g.,
Zoning,
Sager,
Indigent
(1969)
767, 774-780;
Note,
Stan.L.Rev.
Develop
Law—Equal
ments in
(1969)
Protection
1067.)
Harv.L.Rev.
Second,
note that the factual
predicate underlying petitioner’s con
in the case at
is
tention
bench
true.
unquestionably
does
Respondent
not
he,
nor could
California
dispute,6
application
statutes here in
volved
results in different treatment for the
necessarily
rich defendant and
actually
for the
one. “The nature of the
poor
by sentence
inflicted
‘$25.00
or 10
on
defendant’s financial
days’ depends
ability and per
able,
chooses,
sonal choice. If he
fine,
he
avoid
can
im
If he chooses
prisonment.
he can avoid the
If he
imprisonment,
fine.
can
fine,
(Italics
he
added.) (Wildeblood
cannot avoid
imprisonment.”
163, 164],
v.
United States
284 F.2d
App.D.C.
J.)
dissenting
The fact that
Edgerton,
this difference in treatment
opinion
be unintended and results from the
of a statute which is
application
face,
on
fair
its
does not
an attack on equal
grounds
preclude
protection
(Griffin
statute as
v. Illinois
applied.
U.S. 12 [100
L.Ed.
76 S.Ct.
v.
Strattman
Studt
administered all In that case was that the state’s it held persons equally. failure to indigent defendants in a case provide transcript criminal the trial that- so could obtain proceedings public they adequate expense review constituted an invidious discrimination in violation of the appellate clause of the Fourteenth court high Amendment. The de- clared: “In criminal State can account of trials a no discriminate on more race, on account . denial than or color. . . Such a poverty religion, [of a free is a misfit in a country affording justice dedicated to transcript] equal to all and of its criminal none in administration special privileges respondent’s 6As noted above go solely contentions question to the of whether discrimination of complains justified. the kind of trial can be where justice no There
law. omitted.] [Fn. (Griffin he has.” money on the amount depends gets man 898-899], Deci- passim.) 17-19 L.Ed. pp. 351 U.S. at pp. *10 fundamental reaffirmed this consistently have following prin- sions Griffin7 justice. of equal ciple “Absolute clause does not require
However 811, 353, California, L.Ed.2d U.S. 357 supra, 372 (Douglas [9 v. equality” necessarily statute 814]), not “a demand 814, apply 83 S.Ct. 305, v. Yeager (1966) U.S. 309 (Rinaldi all 384 [16 persons” equally 577, 580, a state to 1497]) and “provide L.Ed.2d 86 S.Ct. permits ... an ‘invidious the result not amount to differences so as does long ” California, supra, v. 356 L.Ed.2d (Douglas p. discrimination.’ [9 814].) protection stated “concept equal Simply situated similarly laws persons compels recognition proposition the law like to the receive treatment.” legitimate respect purpose v. State 566, Fitzpatrick (1969) (Purdy & 71 Cal.2d 578 [79 of California 77, 645].) 456 P.2d Cal.Rptr. traditional test has been that the drawn aby “distinction challenged rational state end and legitimate
statute must bear some relationship only be set aside violative of the Protection Clause if based will Equal v. (McDonald unrelated to of that reasons totally goal.” on pursuit 802, 739, L.Ed.2d (1969) Election U.S. Board Comrs. 394 809 [22 1404].) 745-746, But a stricter standard has been S.Ct. prescribed 89 (Purdy or “fundamental interests.” cases classifications” involving “suspect v. State California, Fitzpatrick 578-579.) & 71 Cal.2d at pp. 765, (1970) 839, v. Mihaly Westbrook 2 Cal.3d Cal.Rptr. 784-785 [87 487], had the standards P.2d occasion recently epitomize 471 classifications under clause: “As evaluating equal protection applied noted, court has United States previously Supreme [fn. omitted] has tended test in classi reviewing legislative Court two-level employ In the economic under clause. area of regu fications protection lation, restraint, with a court has exercised high investing legislation pre that distinctions drawn constitutionality merely sumption requiring 7See, 214, example, Eskridge Washington (1958) (1959) v. Prison 357 360 Board U.S. 1271, 1269, 1061]; 252, v. 216 257-258 L.Ed.2d 78 S.Ct. Burns Ohio U.S. [2 1209, 1164]; 1212-1213, (1961) L.Ed.2d v. Bennett 79 S.Ct. Smith [3 708, 709, 39, 40, 43-44, 895]; Douglas 365 713-714 v. U.S. L.Ed.2d 81 S.Ct. [6 353, 813-815, (1963) 355-356, 811, 372 U.S. 357-358 83 L.Ed.2d S.Ct. [9 California 814]; 477, 892, 896-898, (1963) Lane v. Brown 372 U.S. 483-485 L.Ed.2d 83 [9 768]; Draper Washington (1963) 899, 487, L.Ed.2d S.Ct. 907-908, v. 372 U.S. 499-500 [9 192, 774]; Long (1966) 83 S.Ct. v. Court Iowa 385 District U.S. 194-195 290, 292-293, 362]; 738, (1967) L.Ed.2d 87 S.Ct. Anders v. 386 U.S. [17 California 1396]; 741, 493, 496, Entsminger 498, 745 v. Iowa L.Ed.2d 87 S.Ct. [18 748, 501, 503-504, 1402]; 386 U.S. 751 87 Roberts v. LaVallee L.Ed.2d S.Ct. [18 40, 41, 43, 194]; 389 U.S. L.Ed.2d v. 42 88 S.Ct. Williams [19 235, 2018], 586, 591, 239 399 U.S. L.Ed.2d 90 S.Ct. [26
111 challenged statute bear some rational to a relationship conceivable (See state v. McDonald Board Election legitimate Comrs. purpose. 802, 739, 745-746, 1404]; L.Ed.2d 394 U.S. 809 89 S.Ct. McGowan [22 Maryland (1961) 420, 393, 398-399, v. 366 U.S. 425-426 L.Ed.2d 81 [6 hand, S.Ct. On other in cases classi involving ‘suspect [Par.] interests,’ fications’ on ‘fundamental touching the court [fns. omitted] an attitude of active and critical the classi adopted analysis, subjecting Shapiro (See Thompson, supra, fication to strict v. scrutiny. U.S. 1322]; L.Ed.2d S.Ct. Sherbert v. Verner (1963) 965, 971-972,
U.S. S.Ct. Skinner Oklahoma, supra, 1655, 1660, 316 U.S. L.Ed. 62 S.Ct. *11 Developments Law—Equal see also Protection 1064, 1120-1131.) Harv.L.Rev. Under the strict standard in such applied cases, the state bears the burden of that it has a establishing only compelling interest which the law but that the justifies distinctions drawn the necessary law are to by further its (See Castro v. State purpose.” 223, Cal.3d 234-236 466 P.2d Cal.Rptr. [85 California Illinois,
More in Williams v. supra, recently U.S. 235 L.Ed.2d 586], the Court dealt with the Supreme clause a in factual protection setting similar to the one now before very us. There the defendant, an was convicted theft and was indigent, given the petty maximum sentence fine; by law—one provided year $500 he was also imprisonment statute, $5 taxed in court costs. As the by Illinois the permitted judgment directed that costs, in the event of of the fine and the defend- ant was to remain jail in to “work off” such at the rate of $5 obligations The effect per day. of this was to extend his incarceration for 101 days the maximum beyond confinement. period the
Vacating judgment the case for remanding further proceedings, here, the court said: the case “Applying teaching conclude Griffin that an criminal defendant indigent not be in default of imprisoned aof fine beyond the maximum authorized the by statute regulating the substantive . . offense. . Here the Illinois statute as to [Par.] applied Williams works an invidious discrimination because he is unable to solely the fine. On its face the statute extends to all defendants an appar- ently confinement to the equal opportunity limiting statutory maximum fact, simply by satisfying this is an money judgment. illusory choice for who, definition, any indigent Williams or without funds. [Fn. omitted.] Since a convicted only access to funds can avoid the increased person the Illinois statute effect imprisonment operative exposes only indigents to risk maximum. beyond statutory By making maximum confinement contingent one’s State upon ability pay, since result
visited different on two categories consequences persons maximum statutory is make incarceration in excess of applicable to those without the the money resources only satisfy portion requisite (Williams v. U.S. judgment. [Fn. omitted.]”8 593, 594].) L.Ed.2d bench, Williams,9 the case at as in we are are satisfied that in pre- We between different sented with of discrimination groups an example criminal defendants—those who are classifications of convicted poor not—or, of discrimination based who are it another way, those put that the instant case involves “suspect have no doubt therefore We poverty. evaluated under stricter classifications” which must be reviewed and contention that above. therefore reject standards mentioned respondent’s infirmity” constitutional are “without the statutes here question applied is whether im- clause. Our then inquiry light convicted defendant for nonpayment of an prisonment interest, (Shapiro . . .” compelling governmental “necessary promote 600, 615].) Thompson, 394 U.S. out, contends that petitioner’s As we have already pointed *12 respondent enforcing it of (a) because “acts as method” can be justified imprisonment and rehabilitation. (b) it to” his reformation of the fine and “relates payment Williams, state’s in we assume of the court Somewhat manner of and rehabilitation of and the reformation interest in the collection fines in (Williams v. legitimate.” and defendants is “substantial convicted 586, 591].) The crucial 235, L.Ed.2d question 399 U.S. 238 [26 de- convicted before of us whether practice imprisoning indigent of these either of fines is to necessary fendants for nonpayment promote interests. validity of the constitutional cases have considered
A number of
in the collec
have assumed that the state’s interest
appears
8The Williams court
(399
legitimate.”
produced by
fines is “substantial
of revenues
of
tion
586, 591].)
235,
extending
to a de
By
the rationale of
238
L.Ed.2d
[26
U.S.
Griffin
(cf.
processes
affecting
integrity
appellate
of trial
facto discrimination not
577, 579]),
Yeager,
305,
the court
384
307-308
L.Ed.2d
v.
U.S.
[16
Rinaldi
type
inherent
in
appears to have concluded
the discrimination
also
necessary
such “substantial
promote
sentence invoked in Williams is not
alternative,
methods
legitimate”
By
existence of
less intrusive
pointing
interest.
to the
interest,
necessity.
lack
promoting
the court
in effect demonstrated the
595].)
(399
p.
244
U.S.
L.Ed.2d
[26
slightly
imposed
trial court
the maxi
different facts. There the
9Williams involved
necessity, inability
year
$500
fine. Of
imprisonment
mum sentence: one
longer
could be
portion
imprisonment
sentence
in
than
resulted
People
(1966)
(Cf.
v.
113 decisions, however, none of these Virtually have question.10 practice in terms of between analyzed problem relationship imprisonment and the to be sought thereby.11 interests Accord- indigents promoted state it would serve no worthwhile review the results ingly, varying purpose reached these decisions or the rationales conflicting employed.12 first consider whether the is necessary practice promote state’s interest in collection of fines. There are two reasons it is not. why
In
the first
it
not clear that
can
the end of
serve
place,
imprisonment
10 Prior to
appear
challenges
1960 none of the cases
to have involved
based
See,
indigency.
e.g.,
Wampler (1936)
a defendant’s
Hill v.
missible because it also untenable. find Respondent’s reformation of offenders. We *14 nonpayment imprisonment to for 13 The court Williams listed several alternatives (See p. p. of fines. A number Williams 399 U.S. at by proposed means authorities in addition to these have also which Justice, may (See promote state its Presi interests. Task Force on Administration of Justice, Law Task Force dent’s Commission on Enforcement and Administration Poor, Note, Fines, 18; Imprisonment Report: The Courts 778, 810-819; Comment, Equal Protection and Use Fines as 57 Cal.L.Rev. 460, 463-466; Note, Penalties Criminal 1966 Ill.L.Forum for Offenses Equal Imprisonment Indigent Nonpayment Fines Protection Clause and for 945-947.) 64 Mich.L.Rev. “the is valid because condition is that imprisonment position petitioner’s fine or a even is unable to though reparation, pay, impresses his to the criminal behavior. Aware- him his upon county responsibility conduct, a ness of the of his mere token of the total cost financial price to of the criminal him be citi- law-abiding may encourage prosecution, to zen, to meet his his obligations.” satisfy responsibilities does not Although how the respondent explain imposition of a fine indigent, such values upon impresses obviously his must position that for the imprisonment indigent’s failure involuntary to pay fine is a related and effective means of It equally so. does doing follow, not how- ever, that the mere equating of the imprisonment who can- a fine with the cash can, pay nonindigent who to the end of the rehabilitation of both promoting offenders, classes of compels the conclusion that the treatment of the former is constitutionally per- missible. What we have said above establishes that there are alternative methods the state enforce by collection fines. These same methods simultaneously the state’s promote interest rehabilitating offender and by on the requiring compliance of an part indigent offender conditions, with onerous serve they to make him aware of his responsibility for his criminal conduct and to him encourage to become a law-abiding citizen. sum,
In the state can their impress upon indigents “responsibility6 county criminal behavior” through [their] available alternate Since the state procedures. may thus promote its interest in rehabilitation directly, indigent offender for of bis fine should not be necessary. us, the case before the record shows beyond any contradiction although
that of sentence was' imposition suspended was he granted was unable probation, the fine and assessment penalty fixed solely court as condition of because he probation, was an order, Under the indigent. court’s he incurred not because imprisonment, he refused to with these conditions of his comply but be probation, simply cause he was unable to do so. the court had deter Although apparently mined for his proper incarceration, offense did punishment not require he was unable to obtain his freedom because only he was poor. therefore conclude because of his in petitioner’s imprisonment due
ability, solely his indigency, fine and assessment him as a condition of was not necessary pro mote the state interests claimed and constituted an invidious by respondent discrimination based on his in violation of the poverty *15 clause of the Fourteenth Amendment. further conclude that We and 13521 as to are unconsti sections 1205 applied
Penal Code of the a result execution of As provisions probation tutional. bases urged under attack cannot be on independent order here upheld condition relat constitute a reasonable that said respondent by provisions constitu and rehabilitation. Their inherent to reformation ing petitioner’s function. serving tional defect is fatal to their First, deem desirable to make the observations. following We it difference in fact fine there is significant petitioner’s no as in the court’s were a condition probation assessment probation after denial of than conviction judgment probation. order rather in both situa that the constitutional govern the view same principles are of tions. offender
Second, that the an indigent we do not hold imposition assessment, or as a either as sentence condition a fine and penalty in all instances a violation equal constitutes of necessity probation, case the circumstances of particular clause. Depending upon protection offender, ways there are a variety and the condition of the individual offender, alternatives to fine the imprison the state may indigent 13, ante). (see ment, fn. protection without the command of offending be is that Penal sections 1205 1203.1 Code say What offender indigent such a as to foreclose way opportunity applied order is in a sentence or pro to obtain his freedom which implicit Rather, is that an indigent of a fine. our viding simply for payment holding could, he be comparable would his fine if must given option who refuses to avail offender indigent an offender who not When indigent. defaults otherwise fails at the or himself of such alternatives inception, offered him with alternative which is the conditions meet particular becomes in excuse, offender the indigent out reasonable showing is not offender who as the contumacious of the court the same exactly eyes indigency the offender’s conditions obtain either of these When indigent. mandate he may, consistently to be ceases dispositive clause, out” his imprison be relegated “working ment. the wide diminishes today’s out that
Finally, nothing opinion we point exercise of his sentencing judge vested in the of authority scope L.Ed.2d at Williams v. (See U.S. p. powers. released indigent that an only Our holding requires unnecessary to be found his when the sentencing judge Lavelle, 315, 320 54 N.J. State v. (see serve interest any public on a 223, 226]); particular that a fine not imposed we assume A. 2d eventual imprison- his about with the objective bringing offender *16 for “to do so would be to as to indirectly ment for its nonpayment accomplish (Williams be done directly.” an cannot U.S. at L.Ed.2d at Henderson v. United States See p. 595]. 132, 133.) A.2d 1963) 189 The bona sentencing judge’s (Dist.Col.App. in cases where he directly fide discretion deems impose decision. it is unaffected by today’s appropriate reached, it is unnecessary of the conclusions which we have view contentions. remaining
discuss petitioner’s have decided that writ petition of habeas should corpus be granted only to discharge from the petitioner illegal restraint depicted above, his namely from his imprisonment resulting due inability, to his indi- gency, to fine and assessment penalty as a condition of but not to probation or relieve discharge him from any other restraint or obligation to which he bemay subject by virtue of the Order for Probation entered by court on superior 1969. Since April has been petitioner confined in impermissibly jail to the pursuant order that court is directed to allow him for the of his period confinement credit against the his amount of fine and assessment calculated at the rate penalty in said Order for specified Probation consonant with adequate the views opportunity, herein the balance.14 Since that expressed, 7 of the portion paragraph Order for Probation providing confinement in in lieu jail the monetary obligations therein specified may carried constitutionally circumstances, out in some stricken, do not order it but we direct that execution of the order court be in accordance superior views herein expressed. hereinabove stated the Order Except for Probation is vacated, modified or affected by opinion.
The writ is granted. Petitioner is from the discharged custody sheriff of Santa Clara County.
Peters, J., Tobriner, J., Mosk, J., Burke, J., Molinari, J.,* con curred.
McCOMB, J.I dissent. I would writ. deny 14 The jail record shows county was between the confined April dates of days. 15 and October or a set for total of 186 condition probation $2,500 assessment, was the payment percent for a fine a 25 $3,125. or the sum of specified At the order rate defendant $1,860 satisfied outstanding of this sum. There now debt in amount difference, $1,265, owing County from to the Santa Clara. *Assigned by the Chairman of the Judicial Council.