Due process requires a 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. Dueñas, an indigent and homeless mother of two young children, suffered several misdemeanor convictions for driving with a suspended license after her license was suspended for failure to pay $1,088 stemming from three juvenile citations. In the present case, Dueñas again pleaded no contest to driving with a suspended license and was placed on probation. She was assessed a $300 fine, plus a penalty and assessment, but given the option to serve 9 days in county jail in lieu of the fine. The court also imposed a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (Pen. Code, § 1465.8), and a $150 restitution fine (Pen. Code, § 1202.4). The court held a hearing to determine Dueñas’ ability to pay. The court waived attorney fees, but concluded the court facilities and court operations assessments were mandatory and there were no “compelling and extraordinary reasons” to waive the restitution fine. (Pen. Code § 1202.4, subd. (c).) Dueñas appealed and the case was transferred to the Court of Appeal. Held: Reversed and remanded. Government Code section 70373 and Penal Code section 1465.8 each provide that the assessment “shall be imposed on every conviction for a criminal offense” except for parking offenses. The fees are intended to raise money for the courts rather than be punitive. However, the assessments inflict additional punishment on those who unable to pay. “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.” Imposing these assessments on indigent defendants without a determination they have the present ability to pay violates due process under both the federal and state constitutions. The order imposing these assessments was reversed.

Although the trial court is required by Penal Code section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine. Restitution fines are intended to be punitive and are set at the discretion of the court within a range set by statute. (Pen. Code, § 1202.4, subd. (b).) The court may waive imposition of the fine if it finds “compelling and extraordinary reasons,” but the statute expressly states that inability to pay the fine does not qualify; ability to pay may only be considered if the court imposes more than the statutory minimum. (Pen. Code, § 1202.4, subds. (c)-(d).) This is at odds with Penal Code section 1203.2, subdivision (a), which states that restitution shall be consistent with a person’s ability to pay. When imposed on a probationer, restitution fines are conditions of probation and any unpaid restitution fines at the end of the probationary term are enforceable as a civil judgment. If a defendant successfully fulfills the conditions of probation for the entire period of probation, she has an absolute statutory right to have the charges against her dismissed. (Pen. Code, § 1203.4, subd. (a)(1).) But if an indigent probationer cannot afford the mandatory restitution fine, she is categorically barred from earning the right to have her charges dismissed and instead must persuade the court that dismissal of the charges is in the interest of justice. This statutory scheme raises constitutional issues related to due process and the ban on excessive fines because the rights of those who are unable to pay are limited without considering the their ability to pay. In order to avoid serious constitutional questions, the Court of Appeal remanded the case to the trial court with directions to stay the execution of the restitution fine unless the People establish Dueñas’ ability to pay. The court invited the Legislature to consider whether the statute should be amended to allow consideration of a defendant’s ability to pay. [Editor’s Note: The California Supreme Court denied a request to depublish this opinion on 3/27/2019. Justice Corrigan was of the opinion the court should grant review on its own motion.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B285645.PDF