People v. Dueñas

30 Cal.App.5th 1157

242 Cal.Rptr.3d 268

The PEOPLE, Plaintiff and Respondent,

v.Velia DUEÑAS, Defendant and Appellant.

B285645

Court of Appeal, Second District, Division 7, California.

Filed January 8, 2019

Public Counsel, Kathryn Eidmann, Elizabeth Hadaway, Alisa Hartz, and Mark D. Rosenbaum for Defendant and Appellant.

Clare Pastore, Los Angeles; Michael Kaufman and Devon Porter for American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, and American Civil Liberties Union of San Diego and Imperial Counties, as Amici Curiae on behalf of Defendant and Appellant.

East Bay Community Law Center, Theresa Zhen and Brandon Greene for A New Way of Life Reentry Project, American Civil Liberties Union of Southern California, All of Us Or None—Los Angeles, All of Us Or None—San Francisco, Bay Area Legal Aid, California Association of Local Conservation Corps, California Reinvestment Coalition, Californians for Safety and Justice, Civicorps, Community Coalition, Contra Costa County Public Defender, Contra Costa Racial Justice Coalition, Drug Policy Alliance, East Bay Community Law Center, Ella Baker Center, Equal Justice Society, Essie Justice Group, Hillary Blout, Homeboy Industries, Law Enforcement Action Partnership, Lawyers Committee for Civil Rights of the San Francisco Bay Area, Legal Services of Northern California, Legal Services for Prisoners with Children, Neighborhood Legal Services of Los Angeles County, Root & Rebound, and Rubicon Programs, as Amici Curiae on behalf of Defendant and Appellant.

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, A. Howard Matz and Peter A. Goldschmidt, Los Angeles, for Los Angeles County Bar Association, Beverly Hills Bar Association, Bar Association of San Francisco, and Western Center of Law and Poverty, as Amici Curiae on behalf of Defendant and Appellant.

Albert J. Menaster, Head Deputy Public Defender (Los Angeles) for Los Angeles County Public Defender, as Amicus Curiae on behalf of Defendant and Appellant.

Michael N. Feuer, City Attorney, Debbie Lew, Assistant City Attorney, and Rolando P. Reyes, Deputy City Attorney, for Plaintiff and Respondent.

Jackie Lacey, District Attorney (Los Angeles), Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys, as Amicus Curiae on behalf of Plaintiff and Respondent.

ZELON, Acting P. J. 1 Velia Dueñas, an indigent and homeless mother of young children, pleaded no contest to driving with a suspended license. The trial court placed her on probation, imposed $220 in fees and fines, and ordered that if an outstanding debt remained at the end of her probation, the amount due would go to collections without further order of the court. Dueñas contends that imposing the fees and fine without considering her ability to pay violates state and federal constitutional guarantees because it simply punishes her for being poor. We agree. "Whatever hardship poverty may cause in the society generally, the judicial process must make itself available to the indigent; it must free itself of sanctions born of financial inability." (Preston v. Municipal Court (1961) 188 Cal.App.2d 76, 87-88, 10 Cal.Rptr. 301, quoted in Jameson v. Desta (2018) 5 Cal.5th 594, 623, 234 Cal.Rptr.3d 831, 420 P.3d 746.)

Because the only reason Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional. Accordingly, we reverse the order imposing court facilities and court operations assessments, and we remand the case to the trial court with directions to stay the execution of the restitution fine until the People prove that Dueñas has gained an ability to pay.

FACTUAL AND PROCEDURAL BACKGROUND

Dueñas is a married mother of two young children. She has cerebral palsy, and because of her illness she dropped out of high school and does not have a job. Dueñas's husband is also unemployed, although occasionally he is able to obtain short-term work in construction.

The family of four receives $350 per month in California Work Opportunity and Responsibility to Kids cash benefits and $649 per month in CalFresh food stamps benefits. Dueñas uses all the money she receives to take care of the children, but she cannot afford basic necessities for her family. She has no bank account and no credit card. She owns only her clothing and a mobile phone, and her mobile phone service is frequently disconnected because she cannot afford the $40 per month payment.

The family has no home of their own; they alternate between staying at Dueñas's mother's home and the home of her mother-in-law. The electricity was cut off to her mother-in-law's home because the family could not afford to pay the bill.

A. Prior Legal Proceedings

When Dueñas was a teenager, she received three juvenile citations. She could not afford to pay the $1,088 she was assessed for these citations. Because she could not pay her debt, her driver's license was suspended. Dueñas was unable to have her driver's license reinstated because she could not afford the fees, and she did not qualify for the state amnesty program.

Over the next several years, Dueñas suffered three misdemeanor convictions for driving with a suspended license and one conviction for failing to appear on a driving without a license case. In these cases, Dueñas was offered the ostensible choice of paying a fine or serving jail time in lieu of payment. Each time, she could not afford the fees, so she served time in jail—a total of 51 days across four cases. Additionally, she was sentenced to 90 days in jail for driving with a suspended license. In total, Dueñas was sentenced to 141 days in jail for driving with a driver's license that had been suspended because she had been unable to pay her juvenile citations.

Even after serving her jail time, Dueñas remained liable for court fees associated with each misdemeanor conviction. In one case, she was also ordered to pay attorney fees. She was unable to pay those amounts, and they were sent to collections. Dueñas receives letters from collection agencies, but she has no way to pay off her debt.

B. Present Proceedings

On July 13, 2015, Dueñas pleaded no contest to another misdemeanor charge of driving with a suspended license (Veh. Code, § 14601.1, subd. (a) ) based on a plea agreement that conditioned the consequences for the conviction on whether she obtained a valid driver's license by the time of the sentencing hearing. If Dueñas returned to court on the date of sentencing without a valid license, she would be fined and sentenced to 30 days in jail. If Dueñas returned with a valid license, however, the court would place her on 36 months summary probation and impose a $300 fine.

At the February 22, 2016 sentencing hearing, Dueñas did not have a valid driver's license and was prepared to surrender that day. The court asked if Dueñas wished to "save money and convert the $300 [fine] to 9 days of county jail," and her counsel said, "Yes. She doesn't have the ability to pay."

The court suspended imposition of sentence and placed Dueñas on 36 months summary probation on the condition that she serve 30 days in county jail and pay $300, plus a penalty and assessment, or that she serve nine additional days in custody in lieu of paying the $300 fine. The court imposed a $30 court facilities assessment under Government Code section 70373, a $40 court operations assessment under Penal Code section 1465.8, and a $150 restitution fine under Penal Code section 1202.4. The trial court also imposed and stayed a probation revocation restitution fine. (Pen. Code, § 1202.44.)

Dueñas asked the court to set a hearing to determine her ability to pay "the attorney fees [she had previously been assessed] and court fees." She advised the court that she was homeless and receiving public assistance. The court said such a hearing could be held in the future, if needed: "She has three years to pay them. If it gets near the time where she can suffer a consequence as a result of not paying them, which would almost never be the case, we can set a hearing at that time."

Citing Penal Code section 987.8, subdivision (b), which provides that a court may order a defendant who has been represented by a public defender to pay attorney fees only if the court determines he or she has the present ability to pay all or part of the cost of legal assistance, Dueñas again asked the court to conduct an ability to pay hearing. The court asked if it had to hold the hearing before it imposed fees or only to have a hearing "before she suffers the consequences of not being able to pay them." Dueñas advised the court that as a matter of due process, "before you can impose the fees there must be an ability-to-pay hearing."

After what the court described as "searching for some sort of case law" to support Dueñas's position, the court declared it would hold an ability to pay hearing. The court imposed "all the other fines and fees," and ordered that Dueñas serve her 39 days in county jail, see the court's financial evaluator, and return to court in three weeks for an ability to pay hearing on the attorney fees.

Dueñas pointed out that she would be unable to serve her sentence and see the financial evaluator within three weeks. Her counsel suggested that given that Dueñas was homeless, "it might be simpler to do it here in court" rather than require her to see the financial evaluator. The court said that it did not make sense for it to "sort through the documents myself" and that she should "avail herself of the expertise of the financial evaluator." The court offered some flexibility in setting the date of the hearing but cautioned, "I don't want to get into the habit of having litigants determine what day they want to come back." The court also stated its belief, which was inaccurate, that if Dueñas were to be unable to appear for the hearing, the fees and fines would not be sent to collections or transformed into a civil judgment.

At the March 17,...