Metropolitan News-Enterprise


Tuesday, November 26, 2019


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First District Panel Sidesteps Taking Sides on Correctness of Dueñas


By a MetNews Staff Writer


Div. Four of the First District Court of Appeal has rejected a challenge to the imposition of fines and fees in the absence of a hearing on the defendant’s ability to pay, doing so without choosing up sides as to whether the controversial Jan. 8 decision by a Los Angeles-based panel in People v. Dueñas was correctly decided or not.

Instead, Friday’s unpublished opinion, by Justice Tracie L. Brown, follows the approach taken by this district’s Div. Eight on Aug. 29 in an opinion by Acting Presiding Justice Elizabeth Grimes, who relied on Penal Code §1237.2, which provides:

“An appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for correction.”

‘Plain Language’

In the case before the First District, appellant Jose Refugio Zarate Jr.—who pled guilty to two misdemeanor—argued that “[t]he plain language of section 1237.2 addresses an ‘error in the imposition or calculation’ of fines and assessments,” insisting this connotes a “lack of any statutory basis for either a fine or assessment, such as imposing a drug lab fee on a non-drug criminal conviction.”

Brown responded:

“Defendant cites no authority to support this narrow definition and we have found none. The relevant entry for ‘imposition’ in Merriam-Webster’s Dictionary provides a simpler and more commonsense definition: ‘something imposed,’ such as a ‘levy [or] tax.’…Black’s Law Dictionary defines the verb ‘impose’ as ‘[t]o levy or exact (a tax or duty)’ and ‘imposition’ as ‘[a]n impost or tax.’…Nothing in the record or in our independent research suggests that the Legislature intended ‘imposition’ to carry a meaning other than its commonsense meaning. Contrary to defendant’s argument that his challenge falls outside section 1237.2 because it involves a ‘fundamental right,’ the imposition of fines and fees in this case falls squarely within the plain meaning of section 1237.2.”

Appeal Dismissed

The jurist said the appeal must be dismissed—the same approach taken by this district’s Div. 8 in its Aug. 28 decision in People v. Hall.

Because Dueñas was decided after the sentencing, Brown noted, Zarate is at liberty to make a motion in the trial court contending there was an “error in the imposition” of fines and fees. The Solano Superior Court judge who hears the motion will have to decide which of the conflicting precedents to follow, she said.

Brown declared that her panel need not make that choice.

“Because we dismiss this appeal on section 1237.2 grounds,” she wrote, “we need not address the substance of the numerous post-Dueñas authorities that have questioned its reasoning.”

Duenas was decided by Div. Seven of this district in an opinion by Justice Laurie Zelon, on a due process basis. The leading case criticizing it is People v. Hicks, authored by Justice Brian Hoffstadt of this district’s Div. Two.

Brown’s opinion comes in People v. Zarate, A156551.

Another Panel

The First District’s Div. Three, in People v. Challinor, yesterday also declined to take sides. The defendant, who was sentenced after Dueñas was decided, had not sought an ability-to-pay hearing and, Justice Ioana Petrou said, forfeited the issue.

In a footnote, she said:

“We note that the substantive holding in Dueñas has been criticized….Because we conclude that defendant has forfeited any challenge based on Dueñas, we need not determine whether that decision is correct.”

In People v. Wuester, decided yesterday, Petrou included the same footnote. There, the defendant had been sentenced before Dueñas was handed down, and she sided with cases holding that the case did not result in “an unforeseen change in the law,” rendering the forfeiture rule inapplicable.

 Fourth District Opinion

Decided Friday was People v. Estrada, emanating from the Fourth District’s Div. Two, in which the question was presented, as it has been in a plethora of appeals, as to whether Dueñas should be applied. The unpublished opinion by Presiding Justice Manuel A. Ramirez ordered a remand for resentencing which, the People acknowledged, was required in light of retroactive post-sentencing legislation unrelated to Dueñas.

Ramirez wrote:

“Arguably, we could reach the issue for the guidance of the trial court on remand. The validity of Dueñas, however, is unsettled; it seems likely that it will be put to rest only by our Supreme Court.”

Note was made that review was granted on Nov. 13 in People v. Kopp. In that case, decided by the Fourth District’s Div. One on July 31, Justice Richard D. Huffman said:

“[T]he People agree with Appellants that this matter should be remanded to the superior court for an ability to pay hearing as to certain assessments. However, the People contend that the punitive fines levied against Appellants are not subject to the ability to pay hearing set forth in Dueñas but, instead, should be analyzed under the excessive fines clause of the Eighth Amendment. We agree with the People’s suggested approach.”

 Ramirez remarked in his opinion on Friday:

“Any guidance we might give the trial court would be written in water. If defendant is unhappy with the trial court’s resolution of the issue on remand, he will have the option of appealing again.”

Sixth District Opinion

There was also a remand for resentencing in People v. Vargasarellano, decided yesterday by the Sixth District. Justice Eugene M. Premo said in the unpublished opinion:

“Since Dueñas was decided, this court along with the other Courts of Appeal in this state have wrestled with the implications of its sweeping analysis….Given the procedural posture of this case, we need not wade too deeply into this thicket. The record contains little to no evidence relating to Vargasarellano’s financial condition and, given that the matter is being returned to the trial court already, allowing Vargasarellano an opportunity for a hearing on his ability to pay does not impose an undue burden on the court or the parties.”

In his opinion in Hicks, Hoffstadt said that whether fines and fees should be imposed on a defendant is a matter to be decided under the Eighth Amendment’s ban on cruel and unusual punishment. In an unpublished opinion yesterday in People v. Divens, he applied Hicks in rejecting a Dueñas-based due-process argument and also found that the fines and fees were not precluded by the Eighth Amendment, declaring:

“[W]e conclude that the minimum monetary obligations totaling $370 are not grossly disproportionate to his crime of assaulting someone with a knife that resulted in substantial and lasting injuries.”


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