Tuesday, September 17, 2019
By a MetNews Staff Writer
The Fifth District Court of Appeal, in a 2-1 opinion, has added its voice to the criticism of this district’s Jan. 8 mandate that fines and fees not be imposed on a criminal defendant absent a finding of an ability to pay, with the majority of the Fresno-based appeals court expressing its view despite a determination that the appellant forfeited the contention and does have financial means.
Acting Presiding Justice Charles Poochigian wrote for himself and Justice Jennifer R.S. Detjen. Justice Rosendo Peña Jr. wrote a concurring opinion.
In People v. Dueñas, Acting Presiding Justice Laurie Zelon of this district’s Div. Seven said that imposing court facilities and court operations 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.”
She added that due process requires that a restitution fine “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” it.
Poochigian said in Friday’s opinion:
“We disagree with Dueñas’s due process analysis and find a defendant’s constitutional challenge to the court’s imposition of such amounts should be raised under the Eighth Amendment to the United States Constitution to determine whether the fines, fees, and assessments are ‘grossly disproportional to the gravity of a defendant’s offense’ and thus ‘excessive.’ ”
The defendant was ordered to pay $10,600 in restitution fines and $280 in court assessments. Poochigian said that in light of the seriousness of his conduct—nonfatally shooting one police officer four times and another once—the financial burdens imposed were not excessive.
He said that in any event, “defendant forfeited his ability to pay challenge because he failed to object to the amounts imposed at the sentencing hearing.”
“I believe our analysis should begin and end with the forfeiture issue. Given defendant’s forfeiture of the inability-to-pay claim, it does not matter whether the merits of his claim could be resolved on due process, equal protection, or Eighth Amendment grounds.”
The case is People v. Aviles, 2019 S.O.S. 2581.
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