Wednesday, September 25, 2019
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Los Angeles-Based Panel Squarely Repudiates Decision in Dueñas
Justice Hoffstadt Says Jan. 8 Opinion Is Based on Two Due Process Precepts Neither of Which Requires an Ability-to-Pay Hearing Before Fines and Assessments Are Imposed
By a MetNews Staff Writer
Div. Two of this district’s Court of Appeal yesterday added its voice to the chorus of justices criticizing the Jan. 8 decision by Div. Seven of this district in People v. Dueñas, the case in which it was held that a court may not impose assessments and fines on a criminal defendant without first determining a present financial ability to pay them.
Justice Brian Hoffstadt declared in yesterday’s opinion “that Dueñas was wrongly decided.”
He said the opinion in Dueñas—authored by Justice Laurie Zelon—“wove together two distinct strands of due process precedent”: the right of access to courts and the principle that a person should not be jailed for failure to pay a debt based on indigency.
First ‘Strand’
The jurist wrote that “imposition of assessments, fines and fees does not deny a criminal defendant access to the courts.”
That right, he is said, is founded on the dictate that an accused be accorded an opportunity to present a defense.
Hoffstadt observed that, with respect to the appellant in the present case, Darrick Demond Hicks (who was convicted of three counts of resisting an executive officer and a misdemeanor count of being under the influence of a controlled substance):
“[T]he imposition of the assessments, fine and fee in no way interfered with defendant’s right to present a defense at trial or to challenge the trial court’s rulings on appeal; indeed, their imposition came after the trial was over and, except for the bare fact of their imposition, is not otherwise challenged on appeal.”
Second ‘Strand’
He went on to say:
“The act of imposing an assessment, fine or fee upon a criminal defendant at the time of sentencing does not mandate instant incarceration and thus does not infringe that very fundamental liberty interest.”
Dueñas, Hoffstadt said, contravenes the California Supreme Court’s 1970 decision in In re Antazo. There, Acting Chief Justice Raymond Sullivan said:
“[W]e do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause. Depending upon the circumstances of the particular case and the condition of the individual offender, there are a variety of ways in which the state may fine the indigent offender, as alternatives to imprisonment, without offending the command of equal protection….”
Hoffstadt remarked that Div. Seven, “[b]y adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned.”
Purpose of Probation
He provided this further reason for disagreeing with the January decision:
“Dueñas impedes the purpose of probation because it prohibits the imposition of any assessment, fines or fees at the outset of the probationary period and thus relieves the indigent probationer of any duty to make any effort to repay his debts and thereby rehabilitate himself. Dueñas is also inconsistent with the operation of probation, which typically lasts a number of years…and thus gives probationers a significant period of time to repay their financial obligations—either due to their bona fide efforts or to other changes in their financial circumstances.”
Hoffstadt continued:
“By precluding the imposition of assessments, fines and fees at the outset (and thus absolving them of any duty to pay them), Dueñas deprives indigent probationers of any time to repay those obligations. Dueñas repeatedly labels indigent defendants as ‘blameless’ for their situation…, but what label would a trial court be effectively attaching to the able-bodied, 39-year-old probationer in this case were it to refuse to impose any financial obligations on the ground that it did not believe he could pay a little over $16 per month during his three years of probation?”
Application to Appellant
Hicks was placed on three years of formal probation by Los Angeles Superior Court Judge Shannon Knight in connection with resisting three police officers and sentenced to time served based on the misdemeanor convictions. Fines and assessments totaled $580.
“Defendant still has 21 months of probation left to make bona fide efforts to repay these obligations,” Hoffstadt wrote. “Should they remain unpaid at the end of his probationary period, the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort.”
He added:
“At this point in time, however, due process does not deny defendant the opportunity to try.”
The case is People v. Hicks, 2019 S.O.S. 2752.
Dueñas has drawn criticism in published Court of Appeal opinions from other panels.
Div. One of this district declared on Sept. 12 in People v. Caceres, authored by Justice Helen Bendix:
“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.”
The most forceful disagreement with Dueñas—up until yesterday’s opinion by Hoffstadt—came on Sept. 13 from Fifth District Justice Charles Poochigian. Writing for the majority, he said 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.”
The Fourth District’s Div. One on July 31, in People v. Kopp, ordered a remand for an ability-to-pay hearing but agreed with the People that the analysis should be under the Eighth Amendment.
On Sept. 6, in People v. Evans, the First District’s Div. Four said that Dueñas cannot be applied to orders for direct victim compensation. That panel on May 10, in People v. Johnson, found that if it was error to impose monetary obligations on a rapist without holding an ability-to-pay hearing, it was harmless error because, having been sentenced to eight years, he will be able to make payments out of prison wages.
Zelon’s opinion was followed by the Sixth District in People v. Santos on Aug. 15, over a dissent by Justice Franklin D. Elia who wrote: “I believe that Dueñas was wrongly decided.”
This district’s Div. Seven followed up on Dueñas with a March 26 pronouncement in People v. Castellano that Dueñas constituted new law and that a defendant who did not request a hearing on his ability to play fines and assessments at sentencing, prior to that decision coming out, did not forfeit the issue.
That view was rejected by the First District’s Div. One on Sept. 18 in People v. Jenkins, this district’s Div. Six in People v. Torres on Sept. 10, the Fourth District’s Div. One on June 4 in People v. Gutierrez, and this district’s Div. Eight on April 17 in People v. Bipialaka and on April 4 in People v. Frandsen.
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