Metropolitan News-Enterprise


Tuesday, October 22, 2019


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Div. Seven Won’t Retreat From Controversial Decision in Dueñas

Los Angeles-Based Panel Remands for Determination If Murderer Can Afford to Pay Court Operations, Court Facilities Assessments and Restitution Fine


By a MetNews Staff Writer


Div. Seven of this district’s Court of Appeal is sticking with its Jan. 8 decision in People v. Dueñas—which held that a convicted defendant is entitled to an ability-to-pay hearing before a judge imposes court operations or court facilities assessments or a restitution fine—applying that case yesterday without responding to, or acknowledging, mounting criticism of it.

Yesterday’s opinion, which was not certified for publication, also applied Div. Seven’s follow-up decision, rendered April 4, in People v. Castellano. There, Presiding Justice Dennis Perluss declared that the right to a hearing on the ability to pay was not forfeited by the defendant not invoking it in the trial court where sentencing took place before Dueñas was handed down.

The opinion in Dueñas was authored by Acting Presiding Justice Laurie Zelon, who wrote:

“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….We also hold that…the execution of any restitution fine…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.”

Justice John Segal wrote yesterday’s opinion in People v. Garcia, B288849. It affirms Robert Anthony Garcia’s convictions for first degree murder and unlawful driving or taking a vehicle, but remands the case for a hearing to determine if Garcia can muster the money to pay two $40 court operations assessments (one assessment for each conviction), two $30 court facilities assessments, and a $300 restitution fine.

Prison Wages

Citing Castellano, Segal said that on remand, “the trial court should consider all relevant factors in determining Garcia’s ability to pay, including any wages Garcia may earn during his incarceration.”

The opinion does not consider the insistence, expressed May 10 by the First District’s Div. Four in People v. Johnson that a person drawing a long prison term will necessarily draw sufficient wages to afford to pay court imposed fines and assessments. Justice Jon B. Streeter expressed this view:

“Not only does the record show Johnson had some past income-earning capacity, but going forward we know he will have the ability to earn prison wages over a sustained period….The idea that he cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable.”

He said that even if Dueñas was correctly decided, because the present defendant “has ample time to pay” fines and assessments “from a readily available source of income while incarcerated, the error is harmless beyond a reasonable doubt.”

Div. One’s View

Meanwhile, Div. One of this district yesterday ordered publication of its Oct. 4 opinion in People v. Kingston, B293920, which sides with panels also repudiating Dueñas in published decisions. Justice Victoria Chaney wrote:

“Very recently our colleagues in Division Two disagreed with Dueñas, holding that due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or result in the defendant’s incarceration.”

She cited the Sept. 24 opinion in People v. Hicks which was authored by Justice Brian Hoffstadt. He expressed the view “that Dueñas was wrongly decided,” asserting the due process analysis was skewed, and that the decision ran afoul of the California Supreme Court’s 1970 decision in In re Antazo, decided on equal protection grounds.

“By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned,” Hoffstadt wrote.

Chaney commented: “We find Hicks to be the better reasoned decision,” quoting from it extensively.

This was not Div. One’s first examination of Dueñas in published opinion. On Sept. 12, Justice Helen Bendix said in People v. Caceres:

“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 defendants ability to pay before imposing court assessments or restitution fines.”

Other Decisions

Fifth District Justice Charles Poochigian on Sept. 13 said in a majority opinion in People v. Aviles:

“We find Dueñas was wrongly decided, and that a constitutional challenge to the imposition of fines, fees, and assessments should be based on the Excessive Fines Clause of the Eighth Amendment instead of the due process rationale utilized in Dueñas.”

That same stance was taken by the Fourth District’s Div. One on July 31 in People v. Kopp.

On Sept. 6, in People v. Evans, the First District’s Div. Four said that Dueñas cannot be applied to orders for direct victim restitution (as opposed to a restitution fine). The Sixth District on Aug. 15, in People v. Santos, expressed agreement with Zelon’s opinion, but Justice Franklin D. Elia, in a dissent, said: “I believe that Dueñas was wrongly decided.”

Dueñas has also been disapproved in unpublished opinions.

Castellano has been criticized, as well, in several opinions, published and unpublished.


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