Because the only reason Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional. Accordingly, we reverse the order imposing court facilities and court operations assessments, and we remand the case to the trial court with directions to stay the execution of the restitution fine until the People prove that Dueñas has gained an ability to pay.
FACTUAL AND PROCEDURAL BACKGROUND
Dueñas is a married mother of two young children. She has cerebral palsy, and because of her illness she dropped out of high school and does not have a job. Dueñas's husband is also unemployed, although occasionally he is able to obtain short-term work in construction.
The family has no home of their own; they alternate between staying at Dueñas's mother's home and the home of her mother-in-law. The electricity was cut off to her
A. Prior Legal Proceedings
When Dueñas was a teenager, she received three juvenile citations. She could not afford to pay the $1,088 she was assessed for these citations. Because she could not pay her debt, her driver's license was suspended. Dueñas was unable to have her driver's license reinstated because she could not afford the fees, and she did not qualify for the state amnesty program.
Over the next several years, Dueñas suffered three misdemeanor convictions for driving with a suspended license and one conviction for failing to appear on a driving without a license case. In these cases, Dueñas was offered the ostensible choice of paying a fine or serving jail time in lieu of payment. Each time, she could not afford the fees, so she served time in jail-a total of 51 days across four cases. Additionally, she was sentenced to 90 days in jail for driving with a suspended license. In total, Dueñas was sentenced to 141 days in jail for driving with a driver's license that had been suspended because she had been unable to pay her juvenile citations.
Even after serving her jail time, Dueñas remained liable for court fees associated with each misdemeanor conviction. In one case, she was also ordered to pay attorney fees. She was unable to pay those amounts, and they were sent to collections. Dueñas receives letters from collection agencies, but she has no way to pay off her debt.
B. Present Proceedings
On July 13, 2015, Dueñas pleaded no contest to another misdemeanor charge of driving with a suspended license ( Veh. Code, § 14601.1, subd. (a) ) based on a plea agreement that conditioned the consequences for the conviction on whether she obtained a valid driver's license by the time of the sentencing hearing. If Dueñas returned to court on the date of sentencing
At the February 22, 2016 sentencing hearing, Dueñas did not have a valid driver's license and was prepared to surrender that day. The court asked if Dueñas wished to "save money and convert the $300 [fine] to 9 days of county jail," and her counsel said, "Yes. She doesn't have the ability to pay."
The 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 9 additional days in custody in lieu of paying the $300 fine. The court imposed a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under Penal Code section 1465.8, and a $150 restitution fine under Penal Code section 1202.4. The trial court also imposed and stayed a probation revocation restitution fine. ( Pen. Code, § 1202.44.)
Dueñas asked the court to set a hearing to determine her ability to pay "the attorney fees [she had previously been assessed] and court fees." She advised the court that she was homeless and receiving public assistance. The court said such a hearing could be held in the future, if needed: "She has three years to pay them. If it gets near the time where she can suffer a consequence as a result of not paying them, which would almost never be the case, we can set a hearing at that time."
Citing Penal Code section 987.8, subdivision (b), which provides that a court may
After what the court described as "searching for some sort of case law" to support Dueñas's position, the court declared it would hold an ability to pay hearing. The court imposed "all the other fines and fees," and ordered that Dueñas serve her 39 days in county jail, see the court's financial evaluator, and return to court in three weeks for an ability to pay hearing on the attorney fees.
Dueñas pointed out that she would be unable to serve her sentence and see the financial evaluator within three weeks. Her counsel suggested that given
At the March 17, 2016 ability to pay hearing, the court reviewed Dueñas's uncontested declaration concerning her financial circumstances, determined that she lacked the ability to pay the previously-ordered attorney fees, and waived them on the basis of her indigence. The court concluded that the $30 court facilities assessment under Government Code section 70373 and $40 court operations assessment under Penal Code section 1465.8 were both mandatory regardless of Dueñas's inability to pay them. With respect to the $150 restitution fine, the court found that Dueñas had not shown the "compelling and extraordinary reasons" required by statute ( Pen. Code, § 1202.4, subd. (c) ) to justify waiving this fine. The court rejected Dueñas's constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments, and ordered her to pay $220 by February 21, 2019. The trial court told Dueñas that, "[i]f in the end you're not able to pay, you won't be punished for it. Those [sums] will go to collections without any further order from this court."
The superior court appellate division affirmed the trial court's order. We granted Dueñas's petition to transfer the case to the Court of Appeal. ( Cal. Rules of Court, rule 8.1002.)
DISCUSSION
"Raising money for government through law enforcement whatever the source-parking tickets, police-issued citations, court-imposed fees, bills for court appointed attorneys, punitive fines, incarceration charges, supervision fees, and more-can lay a debt trap for the poor. When a minor offense produces a debt, that debt, along with the attendant court appearances, can lead to loss of employment or shelter, compounding interest, yet more legal action, and an ever-expanding financial burden-a cycle as predictable and counterproductive
Dueñas argues that laws imposing fines and fees on people too poor to pay punish the poor for their poverty. These statutes, she asserts, are fundamentally unfair because they use the criminal law, which is centrally concerned with identifying and punishing only blameworthy decisions, to punish the blameless failure to pay by a person who cannot pay because of her poverty. The laws, moreover, are irrational: they raise no money because people who cannot pay do not pay. We conclude that 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 court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373. We also hold that although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute 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.
I. The Court Facilities and Court Operations Assessments Must Be Subject to an Ability to Pay Determination
A. The Statutory Scheme
Government Code section 70373 and Penal Code section 1465.8, which impose court facilities and court operations assessments on every criminal conviction, each provide that the assessment "shall be imposed on every conviction for a criminal offense" except for parking offenses. ( Gov. Code, § 70373, subd. (a)(1) ; Pen. Code, § 1465.8, subd. (a)(1).)
Government Code section 70373 was enacted in 2008 as part of a law that raised funds for court facilities by increasing existing fees or imposing new fees in trust and estate proceedings; for the violation of license, registration and mechanical requirements of the Vehicle Code; for certain parking offenses; and for persons attending traffic violator school. (Legis. Counsel's Dig., Sen. Bill No. 1407, Stats. 2008, ch. 311.) Government Code section 70373 provides that its purpose is "[t]o ensure and maintain adequate funding for court facilities." ( Gov. Code, § 70373, subd. (a)(1).)
Although it enacted these fee-generating statutes to raise funds for court operations and facilities, the Legislature has recognized the deleterious impact of increased court fees on indigent people. The Legislature has declared that "our legal system cannot provide 'equal justice under law' unless all persons have access to the courts without regard to their economic means. California law and court procedures should ensure that court fees are not a barrier to court access for those with insufficient economic means to pay those fees." ( Gov. Code, § 68630, subd. (a).) The Legislature has also declared that "fiscal responsibility should be tempered with concern for litigants' rights to access the justice system. The procedure for allowing the poor to use court services without paying ordinary fees must be one that applies rules fairly to similarly situated persons, is accessible to those with limited knowledge of court processes, and does not delay access to court services." ( Gov. Code, § 68630, subd. (b).)
Accordingly, the Legislature has provided for fee waivers for indigent litigants at the trial and appellate court levels that excuse them from paying fees for the first pleading or other paper, and other court fees and costs,
While this protective mechanism lessens the disproportionate burden that these fundraising fees present to indigent litigants in the civil context, the Legislature neither instituted nor rejected a corresponding safeguard for assessments attached to a criminal conviction. Both Government Code section 70373 and Penal Code section 1465.8 are silent as to the consideration of a defendant's ability to pay in imposing the assessments.
B. For Those Unable to Pay, These Assessments Inflict Additional Punishment
The "constitutional guaranties of due process and equal protection both call
Accordingly, a state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty. In In re Antazo (1970)
Citing Antazo , supra ,
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 ...." ( Tate v. Short (1971)
The People argue that Griffin , supra ,
These additional, potentially devastating consequences suffered only by indigent persons in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay. Under the Griffin - Antazo - Bearden analysis, the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are thus fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution.
II. The Execution of the Restitution Fine Must Be Stayed
California law provides for two types of restitution: direct restitution to the victim ( Pen. Code, § 1202.4, subd. (f) ), which is based on a direct victim's loss, and a restitution fine ( Pen. Code, § 1202.4, subd. (b) ), which is not. Payment of direct victim restitution goes directly to victims and compensates them for economic losses they have suffered because of the defendant's crime. ( People v. Giordano (2007)
Here, the trial court imposed a restitution fine on Dueñas. Restitution fines are set at the discretion of the court in an amount commensurate with the seriousness of the offense and within a range set by statute. ( Pen. Code, § 1202.4, subd. (b).) At all times relevant to this matter, the minimum restitution fine for a misdemeanor was $150 and the maximum restitution fine was $1000. (Ibid .) Restitution fines are not paid to the victim of the crime. Instead, they are paid into a statewide victim compensation fund. ( Pen. Code, § 1202.4, subd. (e).)
Unlike the assessments discussed above, the restitution fine is intended to be, and is recognized as, additional punishment for a crime. ( People v. Hanson (2000)
As a result of Penal Code section 1202.4, subdivision (c) 's prohibition on considering the defendant's ability to pay the minimum fine, the criminal justice system punishes indigent defendants in a way that it does not punish wealthy defendants. In most cases, a defendant who has successfully fulfilled the conditions of probation for the entire period of probation has an absolute statutory right to have the charges against him or her dismissed. ( Pen. Code, § 1203.4, subd. (a)(1).) The defendant must be "released from all penalties and disabilities resulting from the offense with which he or she has been convicted," with the exception of driver's license revocation proceedings. (Ibid .; Veh. Code, § 13555.) But if a probationer cannot afford the mandatory restitution fine, through no fault of his or her own he or she is categorically barred from earning the right to have his or her charges dropped and to relief from the penalties and disabilities of the offense for which he or she has been on probation, no matter how completely he or she complies with every other condition of his or her probation. Instead, the indigent probationer must appeal to the discretion of the trial court and must persuade the
In this statutory scheme, therefore, the wealthy defendant is offered an ultimate outcome that the indigent one will never be able to obtain-the successful completion of all the terms of probation and the resultant absolute right to relief from the conviction, charges, penalties, and disabilities of the offense. At best, indigent defendants who cannot pay their restitution fine can try to persuade a trial court to exercise its discretion to grant them relief, despite their failure to comply with all terms of probation; at worst, they are deprived of relief, with all the collateral consequences that the legislation was designed to avoid. This result arises solely and exclusively from their poverty.
The People minimize the difference between expungement as of right and upon discretion in the interest of justice, asserting that Dueñas "fails to explain why this discretionary relief would be denied to those who demonstrate an inability to pay in their expungement applications." But given that restitution is a condition of probation, and the restitution statute instructs the trial court that a defendant's inability to pay is an illegitimate consideration in imposing the minimum restitution fine, it is not at all clear that a trial court would treat inability to pay as a legitimate consideration in determining
We acknowledge, as do the parties, that the Vehicle Code section Dueñas violated makes her ineligible for mandatory relief upon her completion of probation. This does not change our conclusion, however, because the trial court here indicated that it would neither consider Dueñas's inability to pay the restitution fine nor relieve her of it at the close of probation, stating that "[i]f in the end you're not able to pay," the fine and fees "will go to collections without any further order from this court ." (Italics added.)
We interpret statutes to avoid serious constitutional questions when such interpretations are fairly possible. ( People v. Buza (2018)
DISPOSITION
We reverse the order imposing assessments under Government Code section 70373 and Penal Code section 1465.8. We remand the case to the trial court
We concur:
SEGAL, J.
WILEY, J.
Notes
In recognition of the counterproductive nature of this system and its tendency to enmesh indigent defendants in a cycle of repeated violations and escalating debt, the Legislature recently amended several statutes to prohibit the courts and the Department of Motor Vehicles from suspending a driver's license because of an unpaid traffic citation. (Stats. 2017, ch. 17, §§ 51-54, eff. Jun. 27, 2017.)
Based on the uncontested evidence Dueñas presented in the trial court, she would be eligible for a fee waiver under Government Code section 68632.
In this case, the trial court allowed Dueñas to serve jail time as an alternative to paying the $300 fine imposed as punishment for the offense. That fine, and the jail time she accepted in lieu of the fine, are not at issue in this appeal.
While we consider the issue one of due process because it concerns the fairness of relations between the criminal defendant and the state (see Bearden , supra ,
In Jameson v. Desta , supra ,
Under this statutory scheme, a trial court may only consider a defendant's ability to pay if the court is considering imposing a restitution fine in excess of the statutory minimum amount. (Pen. Code, § 1202.4, subd. (d).)
Penal Code section 1203.2, concerning probation revocation, was amended in 1983 when the California Legislature codified the decision in Bearden , supra ,
Amicus Curiae Los Angeles County Public Defender argues that imposing a restitution fine without evaluating the defendant's ability to pay also violates the bans on excessive fines in the United States and California Constitutions. The due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that "[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process." (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005)
Some courts might even consider it an abuse of discretion to relieve a party of the obligation to pay a fine on the basis of a factor expressly excluded from consideration in imposing that fine.
Although a number of courts have ruled or stated that a trial court lacks the statutory authority to stay an assessment, a fee, and a restitution fine (see, e.g., People v. Sweeney (2014)
Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.