THE PEOPLE, Plaintiff and Respondent, v. AXEL EFREN CACERES, Defendant and Appellant.
B292031
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Filed 9/12/19
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. NA106460)
APPEAL from a judgment of the Superior Court of Los Angeles County, Laura L. Laesecke, Judge. Affirmed.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff
Axel Caceres appeals from the judgment after his conviction for criminal threats against E.S.J., the mother of his daughter. Caceres contends his crime was not one “involving domestic violence” as required under
We conclude that Caceres‘s threats against his child‘s mother constitute domestic violence under
FACTUAL BACKGROUND
At the preliminary hearing, E.S.J. testified that she had dated Caceres for about seven years and they had a daughter together. One night around midnight, Caceres arrived at E.S.J.‘s apartment and knocked at the door, yelling that if she did not open it he would kill her. E.S.J. told him she would call the police if he did not go away, and he said, ” ‘Go ahead and call them. By the time they get here, I will have chopped you up.’ ”
After about 10 minutes of yelling and knocking, Caceres left. As he was leaving, E.S.J. saw he was holding “the point of a knife” in his hand.
PROCEDURAL BACKGROUND
An information charged Caceres with one count of criminal threats against E.S.J. (
Caceres pleaded no contest to the criminal threats charge, and the trial court found him guilty. Pursuant to plea negotiations, the trial court dismissed the count for violating a protective order.
For the criminal threats conviction, the trial court denied probation and sentenced Caceres to 16 months in state prison with 924 days of custody and conduct credits. The trial court imposed a $40 court operations assessment (
Caceres timely appealed.
DISCUSSION
A. The Trial Court Properly Issued The Protective Order
Caceres argues that the crime for which he was convicted, criminal threats, was not a “crime involving domestic violence,” as required to subject him to a protective order under
As relevant here,
“[A]buse” for purposes of
Behavior that may be enjoined under
In sum, because threats are among the acts subject to injunction under
Caceres does not dispute that he was convicted of making criminal threats under
Caceres argues that his crime was not an act of domestic violence under
B. The Trial Court Properly Imposed The Assessments And Restitution Fine
Caceres contends the trial court violated his due process rights by imposing the restitution fine and court operations and criminal conviction assessments
The Attorney General argues Caceres forfeited his due process challenge by not raising it in the trial court.4 On the merits, the Attorney General disagrees with Dueñas‘s application of due process, arguing that restitution fines instead should be evaluated under the excessive fines clause of the Eighth Amendment to the United States Constitution. The Attorney General contends that under that analysis, ability to pay is a factor, not a requirement, and that Caceres‘s particular fine is not grossly disproportionate to his offense. The Attorney General agrees with Caceres (and, presumably, Dueñas) that the court assessment fees, which are nonpunitive and which the Attorney General contends relate to defendants’ access to the justice system, implicate due process and should not be imposed on defendants who lack the ability to pay them.
For the reasons we discuss below, we conclude that the due process analysis in Dueñas does not support its broad holding, and the extreme facts of Dueñas are not present on the record before us. Given these conclusions, we need not address whether Caceres has forfeited his due process challenges to the fine and assessments at issue here. As for the Attorney General‘s contentions regarding applicability of the Eighth Amendment, Caceres did not raise an Eighth Amendment challenge in his opening brief and we therefore decline to address that question. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1372, fn. 12 [declining to address issue not raised properly in opening brief].)
1. Dueñas
Dueñas, an unemployed, homeless mother with cerebral palsy, had her driver‘s license suspended because “[s]he could not afford to pay the $1,088 she was assessed for” three juvenile citations.5 (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Thereafter she received four misdemeanor
Dueñas pleaded no contest to a fifth charge arising from driving with a suspended license. (Dueñas, supra, 30 Cal.App.5th at p. 1161.) When Dueñas was unable to obtain a valid license by the date of sentencing, the trial court “suspended imposition of sentence and placed Dueñas on 36 months’ summary probation on the condition that she serve 30 days in county jail and pay $300, plus a penalty and assessment, or that she serve nine additional days in custody in lieu of paying the $300 fine.” (Id. at p. 1162.) The trial court also imposed a $30 court facilities assessment under
At Dueñas‘s request, the trial court held a hearing to determine her ability to pay the two court assessments and restitution fine imposed on her.6 (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.) Dueñas presented an uncontested declaration establishing her indigent financial circumstances. (Id. at p. 1163.) The trial court ruled that the $30 and $40 assessments were mandatory regardless of Dueñas‘s ability to pay, and that Dueñas had not shown the ” ‘compelling and extraordinary reasons’ ” required to waive the restitution fine. (Ibid.)
The Court of Appeal reversed, holding that due process prohibits a trial court from imposing court facilities and court operations assessments, and requires the trial court to stay execution of any restitution fines, until the trial court ascertains the defendant has the ability to pay those assessments and fines.7 (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
Key to the court‘s holding was its concern for “the cascading consequences of imposing fines and assessments that a defendant cannot pay,” which “[t]he record in this matter illustrates.” (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The court noted that
Dueñas‘s case ” ‘doesn‘t stem from one case for which she‘s not capable of paying the fines and fees,’ but from a series of criminal proceedings driven by, and contributing to, Dueñas‘s poverty. Unable to pay the fees for citations she received when she was a teenager, Dueñas lost her driver‘s license. Like many who are ‘faced with the need to navigate the
In support of its due process argument, the Dueñas court analogized the court assessments imposed on Dueñas to court fees in other contexts that indigent individuals were not required to pay. The Dueñas court referenced statutes allowing for waiver of court fees and costs for indigent civil litigants, noting that similar relief was not available in the criminal context. (Dueñas, supra, 30 Cal.App.5th at pp. 1165-1166.) The court cited Griffin v. People of the State of Illinois (1956) 351 U.S. 12 (Griffin) and Mayer v. City of Chicago (1971) 404 U.S. 189 (Mayer), cases holding that requiring indigent criminal defendants to pay for trial transcripts in order to prosecute their appeals was unconstitutional. (Dueñas, at pp. 1166, 1168; see Griffin, at pp. 13-14, 19-20; Mayer, at pp. 196-197.)
The Dueñas court further opined that imposing assessments on defendants who were unable to pay them violated the defendants’ constitutional rights by inflicting “additional punishment” based solely on their poverty. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court cited In re Antazo (1970) 3 Cal.3d 100 (Antazo) and Bearden v. Georgia (1983) 461 U.S. 660 (Bearden), which prohibited jailing or automatically revoking the probation of criminal defendants who were unable to pay fines or penalty assessments. (Dueñas, at pp. 1166-1167; Antazo, at pp. 103-104; Bearden, at pp. 661-662.)
The Dueñas court acknowledged that failure to pay court assessments subjects defendants to civil judgment and collections, but not to further imprisonment. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court nonetheless held that the consequences of “[c]riminal justice debt and associated collection practices“—including damage to credit, inability to meet other financial obligations, and restriction of employment opportunities—“in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay.” (Ibid.)
As for the restitution fine, the Dueñas court opined that imposing fines on those who cannot pay them “is neither procedurally fair nor reasonably related to any proper legislative goal. Imposing a restitution fine on ‘someone
indigent defendants ” ‘may have the perverse effect of inducing the probationer to use illegal means to acquire funds to pay in order to avoid’ the additional negative consequences.” (Id. at p. 1167.)9
The Dueñas court also noted that defendants on probation who comply with all conditions of that probation, including payment of restitution fines, are entitled by statute to have their charges dismissed, whereas defendants who cannot pay them “[a]t best . . . can try to persuade a trial court to exercise its discretion to grant them relief.” (Dueñas, supra, 30 Cal.App.5th at pp. 1170-1171, citing
2. Analysis
Dueñas announced a broad constitutional rule, one that has the potential to impose a new procedural requirement on our trial courts in every or nearly every criminal proceeding. It did so based on the peculiar facts of that case, facts that several appellate courts have described as “extreme.” (People v. Santos (Aug. 15, 2019, H045518) __ Cal.App.5th __ [2019 Cal.App.Lexis 759, p. *1] (Santos); People v. Kopp (2019) 38 Cal.App.5th 47, 94 (Kopp)). Although we do not reach whether Dueñas was correctly decided as to those extreme facts, in our view, the due process analysis in Dueñas does not
The following observations illustrate our concern with the due process analysis in Dueñas:
First, Dueñas drew what we regard as an inapt analogy between court assessments imposed following a criminal conviction and fees that, if imposed on indigent litigants or criminal defendants, impede their access to the courts in the first place. The Legislature and courts rightly are concerned when filing fees and other court costs prevent indigent individuals from having their day in court. Fees imposed after a case is completed, and judgment entered, however, do not deprive defendants of access to justice.11 (See Santos, supra, __ Cal.App.5th __ [2019 Cal.App.Lexis 759, p. *22] (Elia, J., dis. opn.) [“a convicted person‘s inability to pay a court operations assessment or a court facilities assessment [does not] in any way impact that person‘s ability to access the courts“]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (Gutierrez) (Benke, J., conc. & dis. opn.) [“the imposition of the two assessments and one restitution fine on the defendant in Dueñas was not an issue of access to the courts or our system of justice“].)
Second, Dueñas equated the civil judgment and consequences thereof faced by defendants who do not pay their court assessments as “additional punishment” to which only indigent defendants are subject. (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. We note that the cases upon which Dueñas relied, Antazo and Bearden, involved defendants who, because of their poverty, were exposed to additional criminal penalties. (See Santos, supra, ___ Cal.App.5th ___ [2019 Cal.App.Lexis 759, p. *24] (Elia, J., dis. opn.) [noting that unlike the laws challenged in Antazo and Bearden, the statutes requiring payment of court assessments “deprive no one of their fundamental right to liberty based on their indigence“]; see also Gutierrez, supra, 35 Cal.App.5th at p. 1039 (Benke, J., conc. & dis. opn.) [fines and fees imposed in Dueñas did not “satisf[y] the traditional due process definition of a taking of life, liberty or property“].) For the same reason, Dueñas fails to persuade us that imposition of a $300 restitution fine, nonpayment of which subjects a defendant only to civil remedies (see
Third, we disagree with Dueñas that imposing fees or fines on defendants who cannot pay “is neither procedurally fair nor reasonably related to any proper legislative goal.” (Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8). Raising funds for victim restitution and court operations and facilities unquestionably are proper legislative goals, and there is no indication that the postconviction assessment and fines statutes do not serve those goals. Dueñas objects only to the rationality of seeking those funds from indigent defendants.
In determining whether a statute is ” ’ ” ‘reasonably related to a proper legislative goal,’ ” ’ ” however, ” ‘the wisdom of the legislation . . . is not at issue, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute.’ ” (People v. Munoz (2019) 31 Cal.App.5th 143, 160.) 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’ ” 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.
In light of our concerns with the due process analysis in Dueñas, we decline to apply its broad holding requiring trial courts in all cases to determine a defendant‘s ability to pay before imposing court assessments or restitution fines.
We need not decide whether Dueñas was correctly decided as applied to its facts, because it is evident that those facts, as Dueñas characterizes them, are not present here. More specifically, in the Dueñas court‘s view, Dueñas lost her driver‘s license because she was too poor to pay her juvenile citations, then continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as “cascading consequences” stemming from “a series of criminal proceedings driven by, and contributing to, [a defendant‘s] poverty.” (Dueñas, supra, 30 Cal.App.5th at pp. 1163-1164.)
In contrast, Caceres‘s offense, criminal threats, on its face is not a crime either “driven by” poverty or likely to “contribut[e] to” that poverty such that an offender is trapped in a “cycle of repeated violations and escalating debt.” (Dueñas, supra, 30 Cal.App.5th at p. 1164 & fn. 1.) A person may avoid making criminal threats regardless of his or her financial circumstances, and
As set forth above, to the extent Caceres cannot pay the imposed costs and is subject to a civil judgment, we are not persuaded that such a consequence violates due process. In sum, the trial court did not violate Caceres‘s due process rights by imposing the assessments and restitution fine without first ascertaining his ability to pay them.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.