Metropolitan News-Enterprise


Thursday, January 10, 2019


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Restitution Fines Unconstitutional Absent Proof, At a Hearing, of an Ability to Pay—C.A.

Woman Spared Court Facilities Assessment and Court Operations Assessment Based on Her Indigency; Zelon Calls for Legislative Attention to Matter


By a MetNews Staff Writer


—Public Counsel

Velia Duenas, right, is seen with attorney Theresa Zhen, then-legal fellow at A New Way of Life Reentry Project, before speaking to state senators regarding the impact of license suspension on herself and her family.


The Court of Appeal for this district has spared a criminal defendant of the obligation to pay a court facilities assessment and a court operations assessment because she is indigent and has ordered that execution of a restitution fine be stayed until the prosecution can prove, at a hearing, she has the present ability to pay.

Acting Presiding Justice Laurie D. Zelon of Div. Seven wrote the opinion, filed Tuesday. It concerns only restitution fines which are paid to the state’s Victim Compensation Fund, not restitution to be paid directly to the victim.

The defendant “contends that imposing the fees and fine without considering her ability to pay violates state and federal constitutional guarantees because it simply punishes her for being poor,” Zelon said, declaring:

“We agree.”

The reason the defendant cannot pay the fine and the fees, she said, “is her poverty,” and “using the criminal process to collect a fine she cannot pay is unconstitutional.”

Criminal History

The decision comes in a case against Velia Dueñas, a woman with a criminal history going back to her teenage years.

Three of her misdemeanor convictions are for driving with a suspended license. In each case, Dueñas was unable to pay the fines usually imposed in such cases and served time in jail instead.

Dueñas first lost her driving privileges as a teenager, after failing to pay fines imposed by the Juvenile Court. The defendant, who is homeless and has cerebral palsy, dropped out of high school and has not worked since, but supports her two children with the help of state benefits and her husband’s occasional construction work.

Trial Court’s Offer

In her latest case, Dueñas pled no contest to a new charge of driving with a suspended license. Lacking a valid license at the time of sentencing, the woman appeared ready to surrender herself into custody for a 30-day sentence.

Los Angeles Superior Court Judge Eric P. Harmon offered to give her three years of probation instead, which along with a $300 fine would have been the punishment had she obtained a valid license. Noting her inability to pay the fine, he also offered her to convert the $300 to nine days in county jail.

Dueñas accepted the offer. Harmon imposed court facilities and operations assessments under Government Code §70373 and Penal Code §1465.8 respectively, and a $150 restitution fine mandated by Penal Code §1202.4.

Ability to Pay

Her attorney asked for an ability-to-pay hearing, which the judge initially found unnecessary but eventually granted. At the hearing, he waived certain previously-imposed attorney’s fees, but found the facilities and operations fees to be mandatory.

Harmon found that a $150 restitution fine was required by Penal Code §1202.4. That section  provides an exception in cases where “compelling and extraordinary reasons” exist but specifies that “[a] defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine.”

The judge told Dueñas:

“If, 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 of the court.”

Sympathy for Defendant

Like Harmon, Zelon expressed sympathy for the defendant. She wrote:

“As the trial court noted, this matter ‘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 world and no feasible, affordable, and legal option for doing so’…, she broke the law and continued to drive. As a result, Dueñas now has four misdemeanor convictions for driving without a valid license. These, in turn, have occasioned new fines, fees, and assessments that she is unable to pay. As the trial court described it, the repeat criminal proceedings have caused her financial obligations to ‘snowball.’ ”

She agreed with the woman’s contention that “laws imposing fines and fees on people too poor to pay punish the poor for their poverty.”

Non-Punitive Fines

Referencing the facilities and operations assessments, the jurist opined:

“Neither fee is intended to be punitive in nature….Both were enacted as parts of more comprehensive legislation intended to raise funds for California courts.”

She added:

“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.”

She noted that unpaid fines are often sent to collections, and dealing with attempts to collect a debt can be disruptive to an indigent person’s life.

“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,” she declared.

Restitution Fine

As for the restitution fine, Zelon wrote:

“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….

“Unlike the assessments discussed above, the restitution fine is intended to be, and is recognized as, additional punishment for a crime.”

Nevertheless, she reached the same conclusion. She said:

“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.”

Zelon added:

“We invite the Legislature to consider whether the statute should be amended to direct a trial court to consider the defendant’s ability to pay in imposing the fine.”

Attorneys’ Statement

Kathryn Eidmann of Public Counsel, the lead appellate attorney for Dueñas, said in a statement:

“The Court’s decision is a beacon of hope for thousands of vulnerable Californians trapped in an inescapable cycle of deepening poverty and criminal justice involvement. The Court recognized that imposing burdensome fees on the poor who blamelessly cannot afford to pay is fundamentally unfair and inconsistent with state and federal constitutional guarantees of due process. This decision will reduce barriers to achieving economic self-sufficiency, rehabilitation and reentry for Ms. Dueñas and others likes her across the state.”

The case is People v. Dueñas, 2019 S.O.S. 163.

In addition to Eidmann, Elizabeth Hadaway, Alisa Hartz and Mark D. Rosenbaum of Public Counsel represented the defendant. Assistant City Attorney Debbie Lew and Deputy City Attorney Rolando P. Reyes represented the prosecution on appeal.


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