Subsequent history: REVIEW GRANTED on 11/26/2019 with briefing deferred pending decision in People v. Kopp (2019) 38 Cal.App.5th 47, review granted 11/13/2019 (S257844/D072464) (see below for more information on Kopp).
Editor’s Note: This case is cited frequently.

A jury convicted Hicks of multiple felony and misdemeanor offenses and the trial court sentenced him to three years formal probation. He was ordered to pay a $40 court assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $150 drug program fee (Health & Saf. Code, § 11372.7), and a $300 restitution fine (Pen. Code, § 1202.4) as a condition of his probation. The fines and fees were imposed prior to the Dueñas decision and Hicks did not object. On appeal, he relied on Dueñas to argue that imposition of the fine, fee, and assessments without first determining his present ability to pay violated his due process rights.

Holdings/Reasoning:

• The court disagreed with Dueñas’s analysis, concluded that Dueñas was wrongly decided, and rejected the Dueñas-based challenge presented in this appeal.
• To reach its holding, Dueñas wove together two distinct strands of due process precedent. One line of precedent reads due process to require courts to waive court costs and fees that would otherwise preclude criminal and civil litigants from prosecuting or defending lawsuits or from having an appellate court review the propriety of any judgment. A second line of precedent erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant’s indigence rather than contumaciousness. After analyzing these lines of precedent, the Court of Appeal concluded that imposition of assessments, fines and fees at sentencing does not (1) interfere with defendant’s right to present a defense at trial or to challenge the trial court’s rulings on appeal, or (2) mandate instant incarceration and thus does not infringe on that fundamental liberty interest.
• Dueñas announced a principle inconsistent with due process. By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that the California Supreme Court sanctioned in In re Antazo (1970) 3 Cal.3d 100 (albeit under a different constitutional provision), and mandates the type of “inverse discrimination” against non-indigent defendants condemned by the U.S. Supreme Court in both Bearden v. Georgia (1983) 461 U.S. 660 and Williams v. Illinois (1970) 399 U.S. 235.
• By prohibiting the imposition of any assessment, fines, or fees at the outset of the probationary period, Dueñas is inconsistent with the purposes and operation of probation. The chief purpose of probation is to rehabilitate and reintegrate a defendant into the community and one way to achieve this purpose is to require the defendant-probationer to make an effort to repay his debt to society during the period of probation.
• The statute authorizing the drug program fee permits a defendant to object to its imposition based on his inability to pay (Health & Saf. Code, § 11372.7, subd. (b)). Because Hicks failed to so object, he forfeited his right to object on appeal.
• The court also corrected the trial court’s error in failing to impose the $70 in assessments as to each count. As corrected, Hicks was obligated to pay $280 in assessments.