THE PEOPLE, Plaintiff and Respondent, v. LEOLA ALLEN, Defendant and Appellant.
D074946
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 10/22/19
(Super. Ct. Nos. CR143205, SCD120970, SCD153778)
Jay M. Bloom, Judge.
APPEAL from orders of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed and remanded, with directions.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and James M. Toohey, Deputy Attorneys General, for Plaintiff
Defendant Leola Allen pleaded guilty to committing felony welfare fraud in 1993, 1997, and 2000 (and to committing felony perjury in 2000). At sentencing in each case, the trial court ordered Allen to pay direct victim restitution and various fines and fees. In 2018, Allen filed petitions under
Alternatively, Allen contends the trial court erroneously concluded that her outstanding victim restitution obligations deprived the court of the authority to grant discretionary expungement. The record does not support this contention.
On remand, however, we direct the trial court to conduct further proceedings in two respects. First, because the trial court did not directly address Allen‘s request for relief from the court-ordered fines and fees (other than victim restitution), we will direct the trial court to do so. Second, because the record is unclear regarding whether Allen paid all the victim restitution owed in connection with her convictions in 2000, we will direct the trial court to make this factual determination and, if the court determines she has paid it all, to reconsider her expungement petition in light of that fact.
In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Allen‘s Underlying Convictions
The 1993 Case
In 1993, Allen pleaded guilty in case No. CR143205 (the 1993 Case) to one felony count of failing to report income to the Department of Social Services (Department) resulting in her receipt of more than $400 in unentitled benefits (hereafter, welfare fraud). (
The 1997 Case
In 1997, Allen pleaded guilty in case No. SCD120970 (the 1997 Case) to one felony count of welfare fraud. (
The 2000 Case
In 2000, Allen pleaded guilty in case No. SCD153778 (the 2000 Case) to one felony count of welfare fraud (
As a result of her convictions in the 2000 Case, the trial court revoked Allen‘s probation in the 1997 Case and sentenced her to two years in prison.
Allen‘s Petitions to Expunge Her Convictions
In September 2018, Allen filed separate (but substantially similar) petitions in the 1993, 1997, and 2000 Cases seeking to expunge her convictions and to “permanently stay, dismiss, and/or delete” the court-ordered fines and fees (but not the victim restitution, which she acknowledged would survive expungement). Allen invoked the court‘s discretionary authority under
In a supporting declaration, Allen stated she had remained sober and law-abiding for the past 17 years; obtained employment until her “100% . . . SSI Disability assessment” prevented her from working further; pursued a GED and enrolled in a community college course; and regularly attended church. She stated in her declaration that she was seeking expungement, in part, because one of her sons is serving a life sentence in prison, and when she “tried to visit him, [she] was denied entry because of [her] three prior felony convictions. Obtaining the requested post-conviction relief will allow [her] to visit [her] son.”
The Prosecution‘s Oppositions
The prosecution opposed Allen‘s requests that her convictions be expunged, arguing her outstanding victim restitution obligations precluded expungement as a matter of right or as a matter of discretion in the interests of justice.3 The prosecution did not oppose Allen‘s request to stay, dismiss, or delete the court-ordered fines and fees other than victim restitution.
The Hearing and Ruling
At the outset of the hearing on Allen‘s petitions, the trial court indicated it “wasn‘t inclined to grant” them “because she owes victim restitution,” which “is a little different.” Defense counsel responded that even if the convictions were expunged, the victim restitution obligations would still be enforceable as civil judgments. He further argued Allen was “being discriminated against because she can‘t pay.” The court responded: “Well, I respectfully disagree, because every defendant could avoid restitution and ask for a civil judgment. I know you can get one, but there‘s still an issue about paying the restitution. [¶] So I‘ll deny all three without prejudice so restitution is paid . . . to the victim.”
Allen appeals.
DISCUSSION
I. Relevant Legal Principles
A. Victim Restitution
“California law provides for two types of restitution: direct restitution to the victim [citation], which is based on a direct victim‘s loss, and a
“In 1982, California voters passed Proposition 8, also known as The Victims’ Bill of Rights[, which] added article I, section 28, subdivision (b) to the California Constitution[.]” (Giordano, supra, 42 Cal.4th at p. 652; People v. Covington (2000) 82 Cal.App.4th 1263, 1268 (Covington); People v. Gross (2015) 238 Cal.App.4th 1313, 1317-1318 (Gross).) As adopted, this provision read: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] . . . Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section . . . .” (
“A victim‘s right to restitution is, therefore, a constitutional one; it cannot be bargained away or limited, nor can the prosecution waive the victim‘s right to receive restitution.” (Gross, supra, 238 Cal.App.4th at p. 1318.)
As directed by the voters, the Legislature enacted
B. Expungement
Allen based her petition to expunge her conviction in the 1993 Case on
1. Section 1203.4
“In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been
convicted, except as provided in Section 13555 of the Vehicle Code.” (
§ 1203.4, subd. (a)(1) .)
From this language, the courts have identified the following “three circumstances in which a defendant may apply for relief under . . .
” ’ “A grant of relief under
2. Section 1203.42
Allen sought discretionary expungement of her convictions in the 1997 and 2000 Cases under
II. Denying Expungement Based on Allen‘s Outstanding Victim Restitution Obligations Did Not Violate Due Process or Equal Protection
Allen‘s primary contention on appeal is that the trial court violated her due process and equal protection rights by denying her expungement petitions on the basis of outstanding victim restitution obligations that she maintains she was unable to pay. Although no California court appears to have addressed this precise issue, courts have rejected similar arguments in closely analogous contexts. We therefore reject Allen‘s contention.
In Covington, supra, 82 Cal.App.4th 1263, the court held that denying mandatory expungement on the basis of an indigent defendant‘s outstanding victim restitution obligation does not violate due process or equal protection. The defendant in Covington pleaded guilty to theft, was granted probation, and was ordered to pay her employer approximately $99,000 in victim restitution. (Id. at p. 1265.) The probation department determined she could afford monthly restitution payments of $150. (Id. at p. 1265.) After making all scheduled payments, the defendant still owed approximately $88,000 in victim restitution at the end of her probationary period. (Ibid.) Based on this outstanding obligation, the trial court denied her petition for mandatory expungement. (Ibid.) The Court of Appeal affirmed. (Id. at p. 1271.)
The Covington court recognized that the probation department‘s determination of the defendant‘s ability to pay was intended to protect her due process rights. (Covington, supra, 82 Cal.App.4th at p. 1268, fn. 3.) But the court also observed that expungement serves as “an additional inducement” in achieving the rehabilitative objectives of probation, which include ” ‘requiring the defendant to return his ill-gotten gains and helping him appreciate the harm done to the victim.’ ” (Id. at p. 1270.) On balance, the court concluded that “the rehabilitative purposes of probation, much less the constitutional right of a victim to restitution, would be ill served if the defendant could have his or her conviction expunged without having made up for the victim‘s losses.” (Ibid.)
We find Covington‘s reasoning persuasive,6 and see no principled reason why outstanding restitution obligations can properly disqualify an indigent defendant from mandatory expungement but not discretionary expungement.
In arguing against this conclusion, Allen relies most heavily on the recent decision in Dueñas, supra, 30 Cal.App.5th 1157, in which the defendant—an indigent mother of two who subsisted on public aid because she was unable to work due to cerebral palsy—challenged the constitutionality of imposing mandatory court facilities and operations assessments and restitution fines without first determining the defendant‘s ability to pay them. (Id. at pp. 1160-1161, 1164-1165, 1169.) The Court of Appeal for the Second District, Division Seven, held that imposing the assessments and fine on an indigent defendant violated due process. (Id. at pp. 1167, 1168, 1172.)
Addressing the court facilities and operations assessments—which the Dueñas court observed were not “intended to be punitive in nature” but, rather, were “enacted as parts of more comprehensive legislation intended to raise funds for California courts” (Dueñas, supra, 30 Cal.App.5th at p. 1165)—the court found it is “unfair” and “serves no rational purpose” to impose “unpayable fines on indigent defendants” because doing so “does not accomplish the goal of collecting money” (id. at p. 1167). Rather, the court
Similarly, the Dueñas court found that imposing a restitution fine—which “is a debt of the defendant to the state” and “is intended to be . . . additional punishment for a crime” (Dueñas, supra, 30 Cal.App.5th at p. 1169)—on an indigent defendant is fundamentally unfair because an unsatisfied restitution obligation necessarily deprives the defendant the opportunity to obtain mandatory expungement of the conviction as a matter of right under the first scenario of
We decline to follow Dueñas for two reasons. First, Dueñas is readily distinguishable. It involved revenue-generating assessments and punitive fines, whereas this case involves a constitutionally mandated victim restitution order intended to make the victim whole for its losses. These purposes are “fundamentally different.” (People v. Evans (2019) 39 Cal.App.5th 771, 776 (Evans); People v. Kopp (2019) 38 Cal.App.5th 47, 94, fn. 22 (Kopp) [“[b]ecause victim restitution is a civil remedy, we do not address that restitution” in connection with the defendant‘s Dueñas challenge]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069 (Aviles), citing People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034 (Gutierrez) (conc. opn. of Benke, J.).)
Second, even if we were otherwise inclined to extend Dueñas to victim restitution, we would adopt the reasoning of the numerous courts that have rejected Dueñas‘s due process analysis. (See Hicks, supra, 40 Cal.App.5th at pp. 326-329; Aviles, supra, 39 Cal.App.5th at pp. 1068-1069; Kopp, supra, 38 Cal.App.5th at pp. 96-97; Gutierrez, supra, 35 Cal.App.5th at p. 1034 (conc. opn. of Benke, J.).) Many of these courts “have suggested that the proper analytic framework . . . is the excessive fines clause of the Eighth Amendment to the United States Constitution, rather than the due process clause.” (Evans, supra, 39 Cal.App.5th at p. 776, fn. 2; see Aviles, at pp. 1068-1069; Kopp, at pp. 96-97; Gutierrez, at p. 1034 (conc. opn. of Benke, J.).)7
“The second strand [of precedent relied on by Dueñas] 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, supra, 40 Cal.App.5th at p. 325Dueñas‘s bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence.” (Hicks, at p. 326.)
As applied here, neither of Dueñas‘s due process “foundational pillars” (Hicks, supra, 40 Cal.App.5th at p. 327) is implicated by the trial court‘s denial of Allen‘s expungement petitions based on her outstanding victim restitution obligations. The denial of her petitions did not deny her access to the trial court or to this appeal, nor did it result in her incarceration. It merely left her criminal record intact.
To the extent any of the more general due process underpinnings discussed in Dueñas apply here, they support the conclusion there was no due process violation. Dueñas discussed at length the Supreme Court‘s decision in Bearden v. Georgia (1983) 461 U.S. 660 (Bearden), which held that a state may not automatically revoke probation and incarcerate a defendant for nonpayment of restitution without first inquiring about the reasons for nonpayment. (Id. at pp. 661, 672-673.) The
Applying these factors, the California Supreme Court in People v. Cookson (1991) 54 Cal.3d 1091 (Cookson) held that a statute that bars revocation of probation for nonwillful failure to pay restitution (
A balancing here of the factors identified in Bearden shows the trial court did not violate Allen‘s due process rights by denying her expungement petitions based on her apparently nonwillful failure to pay victim restitution. First, the nature and extent ” ‘of the individual interest affected’ ” (Bearden, supra, 461 U.S. at pp. 666-667) in Bearden and Dueñas was a complete loss of personal liberty, whereas here it is Allen‘s desire for a clean criminal record. Delaying expungement until Allen satisfies her restitution obligations is more akin to the extension of the probationary period upheld in Cookson than to the incarceration at issue in Bearden and Dueñas.
Second, Allen has not argued persuasively that denying expungement will “exten[sively] . . . affect[]” her rights. (Bearden, supra, 461 U.S. at p. 667.) Although she asserts in her declaration that expunging her convictions will enable her to visit her son in prison, she has provided no legal authority or competent evidence to support this assertion. ” ‘It is the appellant‘s responsibility to support claims of error with citation and authority . . . .’ ” (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 25.)
Nor is it likely, as Allen now asserts, that her convictions “ironically . . . hamper[]” her ability to obtain the employment necessary to pay the victim restitution because she must disclose them in response to “the common request on job applications to notify potential employers” of prior convictions. This assertion both (1) contradicts her argument below that it is her “100% . . . SSI Disability assessment” (rather than her convictions) that
As to the third Bearden factor, allowing courts to withhold expungement as an inducement to ensuring payment of restitution bears a “rational[] . . . connection” (Bearden, supra, 461 U.S. at p. 667) to the primary purpose of victim restitution—fulfilling the voter-enacted constitutional provision requiring that defendants make victims whole. (Covington, supra, 82 Cal.App.4th at p. 1270.) It also furthers the secondary purposes of victim restitution—” ‘requiring the defendant to return his ill-gotten gains and helping him appreciate the harm done to the victim.’ ” (Covington, supra, 82 Cal.App.4th at p. 1270.) This purpose is particularly appropriate where, as here, the restitution award represents money actually diverted from the victim to the defendant (compared with, say, expenses borne by a victim that do not directly enrich the defendant, such as the cost to repair the victim‘s damaged property).
Allen identifies as an ” ‘alternative means for effectuating the purpose’ ” (Bearden, 461 U.S. at p. 667) the fact that a victim restitution award survives expungement and remains enforceable as a civil judgment. Her reliance on Seymour to emphasize this point is misplaced. The Seymour court held that outstanding victim restitution is not a valid basis on which to deny mandatory expungement under scenario two (early discharge from probation). But it does not follow from this conclusion that outstanding victim restitution is an improper consideration in determining whether to grant discretionary expungement.
In sum, we conclude the denial of Allen‘s petitions for discretionary expungement based on her outstanding restitution obligations did not violate her due process rights.
As an alternative to her due process argument, Allen contends that denying expungement on the basis of outstanding victim restitution violates her equal protection rights because it deprives her of a benefit available to wealthier defendants who can afford to satisfy their restitution obligations. We are not persuaded. First, this argument was expressly rejected in Covington, supra, 82 Cal.App.4th at page 1271, which, as noted, Allen has not addressed in her briefing.
III. The Trial Court Understood the Scope of Its Discretion
As an alternative to her constitutional arguments, Allen argues the trial court abused its discretion by erroneously believing it had none. That is, she contends the fact the trial court denied her expungement petitions on the basis of her outstanding victim restitution obligations indicates the court mistakenly believed the petitions “were brought under the first or second section 1203.4 categor[ies]“—which are mandatory—“rather than the third“—which is discretionary—“ignoring the facts presented by [Allen] regarding her sobriety and community involvement.” We are not persuaded.
In reviewing a trial court‘s order for an abuse of discretion, we presume the order is correct, indulge all intendments and presumptions to support it on matters as to which the record is silent, and the appellant bears the burden to affirmatively show error. (People v. Hurtado (2019) 35 Cal.App.5th 871, 878.) “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) “Thus, the fact that the court focused its explanatory comments on [one factor] does not mean that it considered only that factor.” (Ibid.)
Allen has not met her burden of affirmatively showing the trial court erroneously based its ruling on
We disagree with Allen‘s contention that the trial court‘s “summary ruling” is “quite similar” to the trial court‘s deficient ruling in People v. McLernon (2009) 174 Cal.App.4th 569. In that case, the trial court denied a petition for discretionary expungement on the basis that the court had denied two earlier petitions. (Id. at p. 574.) The Court of Appeal reversed because the trial court‘s ruling, on its face, indicated the court had not considered the merits of the current petition. (Id. at p. 575.) Moreover, to the extent the trial court‘s reference to the earlier rulings constituted an incorporation of the rationales of those rulings, the rationales were inapplicable because they related to mandatory expungement, whereas the current petition was for discretionary expungement. (Id. at p. 575.)
This case is nothing like McLernon. The trial court did not deny Allen‘s petitions on the basis of previously denied petitions or on other procedural grounds. To the contrary, the fact the trial court cited Allen‘s outstanding victim restitution obligations and referred to them as “a little different” indicates the court considered the merits of her petitions. Thus, McLernon is inapposite.
IV. Further Proceedings on Remand
Because the trial court did not expressly rule on Allen‘s unopposed request for relief from the court-ordered fines and fees (other than victim restitution), she requests that we dismiss them in the interests of justice. The Attorney General maintains dismissal is unwarranted because it was Allen‘s duty to secure a ruling from the trial court in the first instance. We agree dismissal is unwarranted, but will direct the trial court on remand to consider in the first instance Allen‘s request for relief from the court-ordered fines and fees other than victim restitution. We express no opinion on how the trial court should exercise its discretion on this issue.
On another note, in a footnote in its respondent‘s brief, the Attorney General points out that, “[a]lthough the record is unclear as to whether [Allen] paid her full victim restitution obligation” in the 2000 Case, she did “not argue . . . that the trial court abused its discretion by relying on outstanding victim restitution as the basis for denying that petition. [Citations.] If it is factually accurate that she owes no victim restitution on that case, remand may be appropriate for the trial court to reevaluate that petition.” In her reply brief, Allen agrees that remand is appropriate.
DISPOSITION
On remand, the trial court is directed to (1) consider whether to stay or dismiss Allen‘s court-ordered fines and fees (other than victim restitution); and (2) determine whether Allen has paid all victim restitution owed in the 2000 Case and, if the court determines she has, to reconsider her expungement petition in light of that fact. In all other respects, the orders are affirmed.
HALLER, Acting P. J.
WE CONCUR:
AARON, J.
GUERRERO, J.