Metropolitan News-Enterprise


Wednesday, October 23, 2019


Page 1


Court of Appeal:

Expungement May Be Denied Based on Nonpayment of Restitution

Fourth District’s Div. One Says Inability to Pay Does Not Require Overlooking Failure to Abide By Court Order; Panel Joins in Repudiating Decision in People v. Dueñas


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal yesterday held that a judge may deny discretionary expungement of convictions based on the defendant’s financial inability to directly pay the victim restitution that was ordered in the cases, finding that the recent holding in People v. Dueñas is based on different facts and, in any event, was incorrectly decided.

Acting Presiding Justice Judith Haller wrote:

“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.’…

“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.”

The Jan. 8 opinion in Dueñas was authored by Acting Presiding Justice Laurie Zelon of this district’s Div. Seven. It held that court assessments and fines may not be imposed absent a hearing to determine the defendant’s ability to pay.

Case at Bar

The appellant in the case decided yesterday by Haller’s division is Leola Allen, who pled guilty to committing felony welfare fraud in 1993 and 1997, and to that same offense in addition to perjury in 2000. Proclaiming herself to be rehabilitated, she sought expungement of the convictions, which the People opposed because she still owes about $9,000 in direct victim restitution.

Allen argued that denying her expungement based on nonpayment of sums she has no ability to pay violates due process and equal protection, citing Dueñas in support of her stance.

Haller pointed to the California Supreme Court’s 1991 decision in People v. Cookson. Chief Justice Malcolm Lucas (now deceased) wrote the majority opinion which found that a statute—codifying the U.S. Supreme Court’s holding 1982 in Bearden v. Georgia that probation may not be revoked based on a failure to pay a fine or restitution through financial inability—does not preclude lengthening the probationary period to facilitate fulfillment of the condition.

“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,” Haller wrote.

Other Cases

In rejecting the reasoning in Dueñas, Haller noted that its due-process analysis was rebuffed in People v. Hicks (decided by this district’s Div. Two), People v. Aviles (a majority opinion from the Fifth District), and People v. Kopp (an opinion from Haller’s division, with her not participating).

She also drew attention to the concurring opinion by Justice Patricia Benke of the Fourth District’s Div. One in People v. Gutierrez, criticizing Dueñas, and People v. Evans, from the First District’s Div. Four, declining to apply Dueñas to an order for direct victim restitution (as opposed to a restitution fine, which does into a fund).

Not mentioned was made of the not-yet-final decision by this district’s Div. One, handed down Monday, in People v. Kingston, adopting the reasoning in Hicks.

(Despite its head-on repudiation of Dueñas in a published opinion on Monday by Justice Victoria Chaney, Div. One yesterday, in an opinion not certified for publication, side-stepped the issue. Presiding Justice Frances Rothschild said in People v. Carnero that the unique fact situation in Dueñas was not present and wrote: “We leave for another day the question of what circumstances other than those present in Dueñas might reflect a constitutional violation and require an ability-to-pay determination.”)

Div. Seven, in an unpublished opinion filed Monday, mechanically applied its decision in Dueñas without discussing the contrary decisions.

Haller’s opinion came in People v. Allen, 2019 S.O.S. 3231.


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