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Duenas’ Reach Limited by Sixth Appellate District.
The Second Appellate District issued an opinion in People v. Duenas (2019) 30 Cal.App.5th 1157 that has sparked a series of other published decisions at odds with its holdings that imposition of court operations assessments, without a determination of defendant’s ability to pay was “fundamentally unfair” and violated due process under the federal and state constitutions.
Court of Appeal Sixth Appellate District San Jose
The Gist of this Article: The Sixth Appellate District, in the case summarized below, limited Duenas’ holding to only those fees, which if unpaid would result in jail or prison and those fees, which if unpaid, would bar access to the courts.
Regarding restitution fines, the Duenas court stated that a wealthy defendant who successfully completed probation and paid all the restitution fines would have an “absolute” right to have the charges “dropped” under Penal Code § 1203.4(a)(1) (expungement). Duenas, supra, at 1170, 1171. An indigent probationer, on the other hand, who could not afford the mandatory restitution fine, would have to persuade the judge that dismissal of the charges (expungement) was in the interests of justice. Id. Therefore, the Duenas court concluded that execution of a restitution fine under Penal Code § 1202.4 “must be stayed unless and until the trial court holds an ability to pay hearing and concludes that defendant has the present ability to pay the restitution fine.” Id. at 1164.
The Courts of Appeal have reached conflicting conclusions whether Duenas was correctly decided and as of February 12, 2020, the issue is current before the California Supreme Court. See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 95 (agreeing with Duenas); and People v Caceres (2019) 39 Cal.App.5th 917 (“the due process analysis in Duenas does not support its broad holding").
The Sixth Appellate District Court evaluated Duenas in the context of the case of Jeffrey Lee Petri in February, 2020 (People v. Jeffrey Lee Petri (2020 DJDAR 1052)), which was actually two cases consolidated for sentencing in 2018, before Duenas was decided.
The Courts of Appeal have reached conflicting conclusions whether Duenas was correctly decided and as of February 12, 2020, the issue is current before the California Supreme Court. See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 95 (agreeing with Duenas); and People v Caceres (2019) 39 Cal.App.5th 917 (“the due process analysis in Duenas does not support its broad holding").
The Sixth Appellate District Court evaluated Duenas in the context of the case of Jeffrey Lee Petri in February, 2020 (People v. Jeffrey Lee Petri (2020 DJDAR 1052)), which was actually two cases consolidated for sentencing in 2018, before Duenas was decided.
Court of Appeal Sixth Appellate District San JoseIn the first case, in 2017, Mr. Petri pleaded no contest to grand theft and admitted that he served one prior prison term within the last five years, which increased his sentence by one year under Penal Code § 667.5(b). In his second case, Mr. Petri pleaded no contest to embezzlement and also admitted that he had served a prior prison term within five years.
The court sentenced Petri to four years in county jail and, in each case, ordered Mr. Petri to pay a restitution fine of $300, a court operations assessment of $30 and a court facilities assessment of $40, or $740 in total.
A year later, Duenas was decided and Petri appealed, alleging the trial court judge in Santa Clara County violated his federal and state constitutional rights by imposing any fines without first conducting an ability-to-pay hearing. He also appealed the imposition of a one-year sentencing enhancement under 667.5(b) due to the passage of Senate Bill (SB) 136.
The Sixth Appellate District agreed with Petri that the one-year enhancement under 667.5(b) was improper under SB 136, which became law on January 1, 2020.
However, the Sixth Appellate District did not reduce any of the fines imposed. It evaluated the trial court record and found that the trial court judge did an ability-to-pay hearing for Petri and did strike the booking fee and other fees “based on an inability to pay.”
Looking at Duenas, however, the Sixth Appellate District commented that the fees which were imposed were proper. The court pointed out that Duenas rested on “two distinct strands” of precedent to find due process required an ability-to-pay hearing. The first strand requires a “right to access to the court” evaluation and if the imposition of a fee acts to bar defendant’s right to access the court, it would be improper if defendant was unable to pay it. Second, if failure to pay a fine results in incarceration based on indigence or inability to pay, then imposition of that fee is also improper. Here, in Petri, neither of these principles were violated by the trial court.
The court sentenced Petri to four years in county jail and, in each case, ordered Mr. Petri to pay a restitution fine of $300, a court operations assessment of $30 and a court facilities assessment of $40, or $740 in total.
A year later, Duenas was decided and Petri appealed, alleging the trial court judge in Santa Clara County violated his federal and state constitutional rights by imposing any fines without first conducting an ability-to-pay hearing. He also appealed the imposition of a one-year sentencing enhancement under 667.5(b) due to the passage of Senate Bill (SB) 136.
The Sixth Appellate District agreed with Petri that the one-year enhancement under 667.5(b) was improper under SB 136, which became law on January 1, 2020.
However, the Sixth Appellate District did not reduce any of the fines imposed. It evaluated the trial court record and found that the trial court judge did an ability-to-pay hearing for Petri and did strike the booking fee and other fees “based on an inability to pay.”
Looking at Duenas, however, the Sixth Appellate District commented that the fees which were imposed were proper. The court pointed out that Duenas rested on “two distinct strands” of precedent to find due process required an ability-to-pay hearing. The first strand requires a “right to access to the court” evaluation and if the imposition of a fee acts to bar defendant’s right to access the court, it would be improper if defendant was unable to pay it. Second, if failure to pay a fine results in incarceration based on indigence or inability to pay, then imposition of that fee is also improper. Here, in Petri, neither of these principles were violated by the trial court.
Therefore, the Sixth Appellate District affirmed the trial court’s sentence and denied the appeal by Mr. Petri because it found that Petri did have the ability to pay such fines.
The citation for the Sixth Appellate District Court ruling discussed above is People v. Jeffrey Lee Petri (6th App. Dist., 2020) 45 Cal. App. 5th 82, 258 Cal. Rptr. 3d 466.
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