People v. Duenas ( 2019 )


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  • Filed 1/8/19
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SEVEN
    THE PEOPLE,                             B285645
    Plaintiff and Respondent,        (Los Angeles County
    Super. Ct. No. 5VY02034)
    v.
    VELIA DUEÑAS,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County, Eric P. Harmon, Judge. Reversed and
    remanded with directions.
    Public Counsel, Kathryn Eidmann, Elizabeth Hadaway,
    Alisa Hartz, and Mark D. Rosenbaum for Defendant and
    Appellant.
    Clare Pastore; 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 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.
    2
    Jackie Lacey, District Attorney (Los Angeles), Phyllis C.
    Asayama and Matthew Brown, Deputy District Attorneys, as
    Amicus Curiae on behalf of Plaintiff and Respondent.
    ____________________
    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, quoted in
    Jameson v. Desta (2018) 
    5 Cal.5th 594
    , 623.)
    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.
    3
    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 CalWorks
    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
    4
    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
    5
    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 9 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,
    6
    “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, 2016 ability to pay hearing, the court
    reviewed Dueñas’s uncontested declaration concerning her
    financial circumstances, determined that she lacked the ability to
    pay the previously-ordered attorney fees, and waived them on the
    basis of her indigence. The court concluded that the $30 court
    facilities assessment under Government Code section 70373 and
    $40 court operations assessment under Penal Code section 1465.8
    7
    were both mandatory regardless of Dueñas’s inability to pay
    them. With respect to the $150 restitution fine, the court found
    that Dueñas had not shown the “compelling and extraordinary
    reasons” required by statute (Pen. Code, § 1202.4, subd. (c)) to
    justify waiving this fine. The court rejected Dueñas’s
    constitutional arguments that due process and equal protection
    required the court to consider her ability to pay these fines and
    assessments, and ordered her to pay $220 by February 21, 2019.
    The trial court told Dueñas that, “[i]f in the end you’re not able to
    pay, you won’t be punished for it. Those [sums] will go to
    collections without any further order from this court.”
    The superior court appellate division affirmed the trial
    court’s order. We granted Dueñas’s petition to transfer the case to
    the Court of Appeal. (Cal. Rules of Court, rule 8.1002.)
    DISCUSSION
    “Raising money for government through law enforcement
    whatever the source—parking tickets, police-issued citations,
    court-imposed fees, bills for court appointed attorneys, punitive
    fines, incarceration charges, supervision fees, and more—can lay
    a debt trap for the poor. When a minor offense produces a debt,
    that debt, along with the attendant court appearances, can lead
    to loss of employment or shelter, compounding interest, yet more
    legal action, and an ever-expanding financial burden—a cycle as
    predictable and counterproductive as it is intractable.” (Rivera v.
    Orange County Probation Dept. (2016) 
    832 F.3d 1103
    , 1112, fn. 7.)
    The record in this matter illustrates the cascading consequences
    of imposing fines and assessments that a defendant cannot pay.
    As the trial court noted, this matter “doesn’t stem from one
    case for which she’s not capable of paying the fines and fees,” but
    8
    from a series of criminal proceedings driven by, and contributing
    to, Dueñas’s poverty. Unable to pay the fees for citations she
    received when she was a teenager, Dueñas lost her driver’s
    license. Like many who are “faced with the need to navigate the
    world and no feasible, affordable, and legal option for doing so”
    (Thomas v. Haslam (M.D.Tenn. 2018) 
    329 F.Supp.3d 475
    , 521),
    she broke the law and continued to drive. As a result, Dueñas
    now has four misdemeanor convictions for driving without a valid
    license. These, in turn, have occasioned new fines, fees, and
    assessments that she is unable to pay. As the trial court
    described it, the repeat criminal proceedings have caused her
    financial obligations to “snowball.”1
    Dueñas argues that laws imposing fines and fees on people
    too poor to pay punish the poor for their poverty. These statutes,
    she asserts, are fundamentally unfair because they use the
    criminal law, which is centrally concerned with identifying and
    punishing only blameworthy decisions, to punish the blameless
    failure to pay by a person who cannot pay because of her poverty.
    The laws, moreover, are irrational: they raise no money because
    people who cannot pay do not pay. We conclude that due process
    of law requires the 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 under
    1      In recognition of the counterproductive nature of this
    system and its tendency to enmesh indigent defendants in a cycle
    of repeated violations and escalating debt, the Legislature
    recently amended several statutes to prohibit the courts and the
    Department of Motor Vehicles from suspending a driver’s license
    because of an unpaid traffic citation. (Stats. 2017, ch. 17, §§51-
    54, eff. Jun. 27, 2017.)
    9
    Penal Code section 1465.8 and Government Code section 70373.
    We also hold that although Penal Code section 1202.4 bars
    consideration of a defendant’s ability to pay unless the judge is
    considering increasing the fee over the statutory minimum, the
    execution of any restitution fine imposed under this statute must
    be stayed unless and until the trial court holds an ability to pay
    hearing and concludes that the defendant has the present ability
    to pay the restitution fine.
    I. The Court Facilities and Court Operations Assessments
    Must Be Subject to an Ability to Pay Determination
    A. The Statutory Scheme
    Government Code section 70373 and Penal Code section
    1465.8, which impose court facilities and court operations
    assessments on every criminal conviction, each provide that the
    assessment “shall be imposed on every conviction for a criminal
    offense” except for parking offenses. (Gov. Code, § 70373, subd.
    (a)(1); Pen. Code, § 1465.8, subd. (a)(1).)
    Neither fee is intended to be punitive in nature. (People v.
    Alford (2007) 
    42 Cal.4th 749
    , 757 [Pen. Code, § 1465.8]; People v.
    Fleury (2010) 
    182 Cal.App.4th 1486
    , 1492-1494 [Gov. Code,
    § 70373].) Both were enacted as parts of more comprehensive
    legislation intended to raise funds for California courts. Penal
    Code section 1465.8 was enacted in 2003 as part of a law that
    increased a number of court-related fees, including small claims
    court filing fees, civil litigation filing fees, civil motions fees, and
    appellate filing fees; it also imposed new court fees, such as a fee
    for complex litigation, probate filing fees, and a fee for certain
    court reporter services. (Assem. Republican Bill Analysis of
    Assem. Bill No. 1759 (2003-2004 Reg. Sess.).) Originally, Penal
    10
    Code section 1465.8 provided that its purpose was “[t]o ensure
    and maintain adequate funding for court security” (Stats. 2003,
    ch. 159, § 25); in 2011 the Legislature amended the statute to
    specify that the purpose was “[t]o assist in funding court
    operations.” (Stats. 2011, ch. 40, § 6.)
    Government Code section 70373 was enacted in 2008 as
    part of a law that raised funds for court facilities by increasing
    existing fees or imposing new fees in trust and estate
    proceedings; for the violation of license, registration and
    mechanical requirements of the Vehicle Code; for certain parking
    offenses; and for persons attending traffic violator school. (Legis.
    Counsel’s Dig., Sen. Bill No. 1407, Stats. 2008, ch. 311.)
    Government Code section 70373 provides that its purpose is “[t]o
    ensure and maintain adequate funding for court facilities.” (Gov.
    Code, § 70373, subd. (a)(1).)
    Although it enacted these fee-generating statutes to raise
    funds for court operations and facilities, the Legislature has
    recognized the deleterious impact of increased court fees on
    indigent people. The Legislature has declared that “our legal
    system cannot provide ‘equal justice under law’ unless all persons
    have access to the courts without regard to their economic means.
    California law and court procedures should ensure that court fees
    are not a barrier to court access for those with insufficient
    economic means to pay those fees.” (Gov. Code, § 68630, subd.
    (a).) The Legislature has also declared that “fiscal responsibility
    should be tempered with concern for litigants’ rights to access the
    justice system. The procedure for allowing the poor to use court
    services without paying ordinary fees must be one that applies
    rules fairly to similarly situated persons, is accessible to those
    11
    with limited knowledge of court processes, and does not delay
    access to court services.” (Gov. Code, § 68630, subd. (b).)
    Accordingly, the Legislature has provided for fee waivers
    for indigent litigants at the trial and appellate court levels that
    excuse them from paying fees for the first pleading or other
    paper, and other court fees and costs, including assessments for
    certain court investigations. (Gov. Code, § 68631.) Government
    Code section 68632 grants permission to proceed without paying
    costs to those receiving certain public assistance benefits, to those
    whose monthly income is 125 percent or less of government
    poverty guidelines, and to those who “cannot pay court fees
    without using moneys that normally would pay for the common
    necessaries of life for the applicant and the applicant’s family.”
    (Gov. Code, § 68632, subdivisions (a)-(c).)2
    While this protective mechanism lessens the
    disproportionate burden that these fundraising fees present to
    indigent litigants in the civil context, the Legislature neither
    instituted nor rejected a corresponding safeguard for assessments
    attached to a criminal conviction. Both Government Code section
    70373 and Penal Code section 1465.8 are silent as to the
    consideration of a defendant’s ability to pay in imposing the
    assessments.
    B.    For Those Unable to Pay, These Assessments Inflict
    Additional Punishment
    The “constitutional guaranties of due process and equal
    protection both call for procedures in criminal trials which allow
    2      Based on the uncontested evidence Dueñas presented in
    the trial court, she would be eligible for a fee waiver under
    Government Code section 68632.
    12
    no invidious discriminations between persons and different
    groups of persons. Both equal protection and due process
    emphasize the central aim of our entire judicial system—all
    people charged with crime must, so far as the law is concerned,
    ‘stand on an equality before the bar of justice in every American
    court.’” (Griffin v. Illinois (1956) 
    351 U.S. 12
    , 17 (Griffin).)
    Accordingly, a state may not inflict punishment on indigent
    convicted criminal defendants solely on the basis of their poverty.
    In In re Antazo (1970) 
    3 Cal.3d 100
     (Antazo), the California
    Supreme Court invalidated the practice of requiring convicted
    defendants to serve jail time if they were unable to pay a fine and
    a penalty assessment. (Id. at p. 103.) “Although a direction for
    confinement for default in payment of a fine may appear to apply
    equally to both the rich offender and the poor one, actually the
    former has the opportunity to escape his confinement while the
    right of the latter to pay what he cannot, is a hollow one.” (Id. at
    pp. 103-104.) The California Supreme Court observed, “‘The
    “choice” of paying [a] $100 fine or spending 30 days in jail is
    really no choice at all to the person who cannot raise $100. The
    resulting imprisonment is no more or no less than imprisonment
    for being poor, . . . .’ [Citation.]” (Id. at p. 108; see also id. at
    p. 115 [“he was unable to obtain his freedom only because he was
    poor”].)3
    3     In this case, the trial court allowed Dueñas to serve jail
    time as an alternative to paying the $300 fine imposed as
    punishment for the offense. That fine, and the jail time she
    accepted in lieu of the fine, are not at issue in this appeal.
    13
    Citing Antazo, supra, 
    3 Cal.3d 100
    , with approval, the
    United States Supreme Court has held that the federal
    Constitution prohibits states from automatically revoking an
    indigent defendant’s probation for failure to pay a fine and
    restitution. (Bearden v. Georgia (1983) 
    461 U.S. 660
    , 667-668 [“if
    the State determines a fine or restitution to be the appropriate
    and adequate penalty for the crime, it may not thereafter
    imprison a person solely because he lacked the resources to pay
    it”] (Bearden).) “If the probationer has willfully refused to pay
    the fine or restitution when he has the means to pay, the State is
    perfectly justified in using imprisonment as a sanction to enforce
    collection. . . . But if the probationer has made all reasonable
    efforts to pay the fine or restitution, and yet cannot do so through
    no fault of his own, it is fundamentally unfair to revoke probation
    automatically without considering whether adequate alternative
    methods of punishing the defendant are available. This lack of
    fault provides ‘a substantia[l] reason which justifie[s] or
    mitigate[s] the violation and make[s] revocation inappropriate.’
    [Citation.]” (Id. at pp. 668-669, footnote omitted.)
    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. A fine on
    indigent people “is not imposed to further any penal objective of
    the State. It is imposed to augment the State’s revenues but
    obviously does not serve that purpose; the defendant cannot pay
    because he is indigent . . . . ” (Tate v. Short (1971) 
    401 U.S. 395
    ,
    399; see also Antazo, supra, 
    3 Cal.3d 100
    , 114.) Poor people must
    face collection efforts solely because of their financial status, an
    unfair and unnecessary burden that does not accomplish the goal
    of collecting money. Punishing “someone who through no fault of
    14
    his own is unable to make restitution will not make restitution
    suddenly forthcoming. Indeed, such a policy may have the
    perverse effect of inducing the probationer to use illegal means to
    acquire funds to pay in order to avoid” the additional negative
    consequences. (Bearden, 
    supra,
     461 U.S. at pp. 670-671.)
    The People argue that Griffin, 
    supra,
     
    351 U.S. 12
    , Antazo,
    supra, 
    3 Cal.3d 100
    , and Bearden, 
    supra,
     
    461 U.S. 660
    , are
    inapposite because while the defendants in those cases faced
    imprisonment on the basis of their poverty, Dueñas is subject
    only to a civil judgment that she cannot satisfy. The United
    States Supreme Court has rejected the argument that the
    principles of Griffin and its progeny are restricted to instances in
    which a defendant is subject to imprisonment. (Mayer v. City of
    Chicago (1971) 
    404 U.S. 189
    , 196-197.) Moreover, the People do
    not dispute that, whether considered as a criminal penalty or as a
    civil judgment, Dueñas faces significant consequences if she
    blamelessly fails to pay her assessments. “As legislative and
    other policymakers are becoming increasingly aware, the growing
    use of . . . fees and similar forms of criminal justice debt creates a
    significant barrier for individuals seeking to rebuild their lives
    after a criminal conviction. Criminal justice debt and associated
    collection practices can damage credit, interfere with a
    defendant’s commitments, such as child support obligations,
    restrict employment opportunities and otherwise impede reentry
    and rehabilitation. ‘What at first glance appears to be easy
    money for the state can carry significant hidden costs—both
    human and financial—for individuals, for the government, and
    for the community at large. . . . [¶] Debt-related mandatory
    court appearances and probation and parole conditions leave
    debtors vulnerable for violations that result in a new form of
    15
    debtor’s prison. . . . Aggressive collection tactics can disrupt
    employment, make it difficult to meet other obligations such as
    child support, and lead to financial insecurity—all of which can
    lead to recidivism.’ [Citations.]” (People v. Neal (2018) 
    29 Cal.App.5th 820
    , 827.)
    These additional, potentially devastating consequences
    suffered only by indigent persons in effect transform a funding
    mechanism for the courts into additional punishment for a
    criminal conviction for those unable to pay. Under the Griffin-
    Antazo-Bearden analysis, the assessment provisions of
    Government Code section 70373 and Penal Code section 1465.8, if
    imposed without a determination that the defendant is able to
    pay, are thus fundamentally unfair; imposing these assessments
    upon indigent defendants without a determination that they have
    the present ability to pay violates due process under both the
    United States Constitution and the California Constitution.4
    4      While we consider the issue one of due process because it
    concerns the fairness of relations between the criminal defendant
    and the state (see Bearden, 
    supra,
     461 U.S. at p. 665), we
    acknowledge that the case law in this area historically has drawn
    on both due process and equal protection principles. (See, e.g.,
    
    ibid.
     [“Due process and equal protection principles converge”
    when analyzing the constitutionality of imposing financial
    burdens upon indigent criminal defendants]; Ross v. Moffitt
    (1974) 
    417 U.S. 600
    , 608-609 [cases draw support from both due
    process and equal protection clauses of the 14th Amend.]; In re
    Sanders (1999) 
    21 Cal.4th 697
    , 715 [due process and equal
    protection both require the state to provide appellate counsel to
    indigent defendants when the state provides a first appeal as of
    right].) The California Supreme Court recently characterized
    Griffin, 
    supra,
     
    351 U.S. 12
    , as an equal protection decision, and
    concluded that on equal protection grounds an indigent criminal
    16
    (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) These fees,
    assessed as part of a larger statutory scheme to raise revenue to
    fund court operations, should be treated no differently than their
    civil counterparts enacted in the same legislation and imposed
    only on those with the means to pay them. (See Jameson v.
    Desta, supra, 
    5 Cal.5th 594
    , 622 [“[U]nder California law, when a
    litigant in a judicial proceeding has qualified for in forma
    pauperis status, a court may not consign the indigent litigant to a
    costly . . . procedure that the litigant cannot afford and that
    effectively negates the purpose and benefit of in forma pauperis
    status”].)5
    II. The Execution of the Restitution Fine Must Be Stayed
    California law provides for two types of restitution: direct
    restitution to the victim (Pen. Code, § 1202.4, subd. (f)), which is
    based on a direct victim’s loss, and a restitution fine (Pen. Code,
    § 1202.4, subd. (b)), which is not. Payment of direct victim
    defendant facing retrial is presumptively entitled to a full and
    complete trial transcript. (People v. Reese (2017) 
    2 Cal.5th 660
    ,
    664-668.)
    5      In Jameson v. Desta, supra, 5 Cal.5th at page 599, the
    California Supreme Court ruled that the practice of denying court
    reporters to indigent civil litigants with a fee waiver violates in
    forma pauperis decisional law and the public policy of equal
    access to the courts as articulated in Government Code
    section 68630, subdivision (a). The Supreme Court observed that
    courts “have the inherent discretion to facilitate an indigent civil
    litigant’s equal access to the judicial process even when the
    relevant statutory provisions that impose fees or other expenses
    do not themselves contain an exception for needy litigants.” (Id.
    at p. 605.)
    17
    restitution goes directly to victims and compensates them for
    economic losses they have suffered because of the defendant’s
    crime. (People v. Giordano (2007) 
    42 Cal.4th 644
    , 651-652.)
    Direct victim restitution was not ordered and is not at issue in
    this case.
    Here, the trial court imposed a restitution fine on Dueñas.
    Restitution fines are set at the discretion of the court in an
    amount commensurate with the seriousness of the offense and
    within a range set by statute. (Pen. Code, § 1202.4, subd. (b).) At
    all times relevant to this matter, the minimum restitution fine
    for a misdemeanor was $150 and the maximum restitution fine
    was $1000. (Ibid.) Restitution fines are not paid to the victim of
    the crime. Instead, they are paid into a statewide victim
    compensation fund. (Pen. Code, § 1202.4, subd. (e).)
    Unlike the assessments discussed above, the restitution
    fine is intended to be, and is recognized as, additional
    punishment for a crime. (People v. Hanson (2000) 
    23 Cal.4th 355
    ,
    363.) When imposed on a probationer, restitution fines are
    conditions of probation. (Pen. Code, § 1202.4, subd. (m).) Any
    unpaid restitution fines remaining at the end of the probationary
    term are enforceable as a civil judgment. (Pen. Code, § 1202.43;
    People v. Willie (2005) 
    133 Cal.App.4th 43
    , 47-48.) A restitution
    fine is a debt of the defendant to the state that may be enforced
    by litigation or by offset against nearly any amount owed to the
    defendant by a state agency, including tax refunds. (Pen. Code,
    § 1202.43, subd. (b); Gov. Code, §§ 12418, 12419.5.)
    “The principle that a punitive award must be considered in
    light of the defendant’s financial condition is ancient.” (Adams v.
    Murakami (1991) 
    54 Cal.3d 105
    , 113.) The Magna Carta
    prohibited civil sanctions that were disproportionate to the
    18
    offense or that would deprive the wrongdoer of his means of
    livelihood. (Ibid.) Yet, although Penal Code section 1202.4
    permits the court to waive imposition of a restitution fine if it
    finds “compelling and extraordinary reasons” why the fine should
    not be imposed, the statute expressly states that inability to pay
    the fine does not qualify:6 “A defendant’s inability to pay shall
    not be considered a compelling and extraordinary reason not to
    impose a restitution fine.” (Pen. Code, § 1202.4, subd. (c).) This
    provision is at odds with the policy articulated in Penal Code
    section 1203.2, subdivision (a): “Restitution shall be consistent
    with a person’s ability to pay.”7
    As a result of Penal Code section 1202.4, subdivision (c)’s
    prohibition on considering the defendant’s ability to pay the
    minimum fine, the criminal justice system punishes indigent
    defendants in a way that it does not punish wealthy defendants.
    In most cases, a defendant who has successfully fulfilled the
    conditions of probation for the entire period of probation has an
    6     Under this statutory scheme, a trial court may only
    consider a defendant’s ability to pay if the court is considering
    imposing a restitution fine in excess of the statutory minimum
    amount. (Pen. Code, § 1202.4, subd. (d).)
    7      Penal Code section 1203.2, concerning probation
    revocation, was amended in 1983 when the California Legislature
    codified the decision in Bearden, 
    supra,
     
    461 U.S. 660
    . (Stats.
    1983, ch. 568, § 2.5; People v. Cookson (1991) 
    54 Cal.3d 1091
    ,
    1096.) The Legislature did not just align California law with the
    Bearden holding that probation cannot be revoked on the basis of
    non-payment if the probationer is unable to pay; it also went
    further by declaring that restitution shall be consistent with a
    person’s ability to pay. (Stats. 1983, ch. 568, § 2.5; Pen. Code,
    § 1203.2, subd. (a).)
    19
    absolute statutory right to have the charges against him or her
    dismissed. (Pen. Code, § 1203.4, subd. (a)(1).) The defendant
    must be “released from all penalties and disabilities resulting
    from the offense with which he or she has been convicted,” with
    the exception of driver’s license revocation proceedings. (Ibid.;
    Veh. Code, § 13555.) But if a probationer cannot afford the
    mandatory restitution fine, through no fault of his or her own he
    or she is categorically barred from earning the right to have his
    or her charges dropped and to relief from the penalties and
    disabilities of the offense for which he or she has been on
    probation, no matter how completely he or she complies with
    every other condition of his or her probation. Instead, the
    indigent probationer must appeal to the discretion of the trial
    court and must persuade the court that dismissal of the charges
    and relief from the penalties of the offense is in the interest of
    justice. (Pen. Code, § 1203.4, subd. (a)(1).)
    In this statutory scheme, therefore, the wealthy defendant
    is offered an ultimate outcome that the indigent one will never be
    able to obtain—the successful completion of all the terms of
    probation and the resultant absolute right to relief from the
    conviction, charges, penalties, and disabilities of the offense. At
    best, indigent defendants who cannot pay their restitution fine
    can try to persuade a trial court to exercise its discretion to grant
    them relief, despite their failure to comply with all terms of
    probation; at worst, they are deprived of relief, with all the
    collateral consequences that the legislation was designed to
    avoid. This result arises solely and exclusively from their
    poverty.
    The statutory scheme thus results in a limitation of rights
    to those who are unable to pay. The heart of the due process
    20
    inquiry is whether it is “fundamentally unfair” to use the
    criminal justice system to impose punitive burdens on
    probationers who have “made all reasonable efforts to pay the
    fine or restitution, and yet cannot do so through no fault of [their]
    own . . . .” (Bearden, 
    supra,
     461 U.S. at p. 668.) Penal Code
    section 1203.4 is not a substitute for due process.8
    The People minimize the difference between expungement
    as of right and upon discretion in the interest of justice, asserting
    that Dueñas “fails to explain why this discretionary relief would
    8      Amicus Curiae Los Angeles County Public Defender argues
    that imposing a restitution fine without evaluating the
    defendant’s ability to pay also violates the bans on excessive fines
    in the United States and California Constitutions. The due
    process and excessive fines analyses are sufficiently similar that
    the California Supreme Court has observed that “[i]t makes no
    difference whether we examine the issue as an excessive fine or a
    violation of due process.” (People ex rel. Lockyer v. R.J. Reynolds
    Tobacco Co. (2005) 
    37 Cal.4th 707
    , 728.) In the excessive fine
    context, the exercise of state power to impose penalties must be
    “procedurally fair and reasonably related to a proper legislative
    goal.” (Hale v. Morgan (1978) 
    22 Cal.3d 388
    , 398.) When
    deciding if fines are constitutionally disproportionate under the
    excessive fines clause, one of the four criteria is the defendant’s
    ability to pay. (Reynolds, at p. 728.) A minimum restitution fine
    that is imposed with a prohibition on considering a primary
    criterion in ensuring constitutionally appropriate fines is neither
    procedurally fair nor reasonably related to any proper legislative
    goal. Imposing a restitution fine on “someone who through no
    fault of his own is unable to make restitution will not make
    restitution suddenly forthcoming” (Bearden, supra, 461 U.S. at
    pp. 670-671), and the state has no “legitimate interest in building
    inescapable debt traps” for indigent residents. (Thomas v.
    Haslam, supra, 329 F.Supp.3d at p. 521.)
    21
    be denied to those who demonstrate an inability to pay in their
    expungement applications.” But given that restitution is a
    condition of probation, and the restitution statute instructs the
    trial court that a defendant’s inability to pay is an illegitimate
    consideration in imposing the minimum restitution fine, it is not
    at all clear that a trial court would treat inability to pay as a
    legitimate consideration in determining whether it is in the
    interest of justice to relieve a non-paying defendant from the
    charges and penalties of his or her offense.9 Indeed, the superior
    court appellate division observed in this case that the “denial of
    discretionary expungement” was one of the many “negative
    consequences” that “[c]ertainly . . . can flow from a defendant’s
    failure to pay [the] mandatory fine and fees.” (People v. Dueñas
    (Sept. 1, 2017, BR052831) [nonpub. opn.], p. 7.)
    We acknowledge, as do the parties, that the Vehicle Code
    section Dueñas violated makes her ineligible for mandatory relief
    upon her completion of probation. This does not change our
    conclusion, however, because the trial court here indicated that it
    would neither consider Dueñas’s inability to pay the restitution
    fine nor relieve her of it at the close of probation, stating that “[i]f
    in the end you’re not able to pay,” the fine and fees “will go to
    collections without any further order from this court.” (Italics
    added.)
    We interpret statutes to avoid serious constitutional
    questions when such interpretations are fairly possible. (People
    v. Buza (2018) 
    4 Cal.5th 658
    , 682; People v. Gutierrez (2014) 58
    9      Some courts might even consider it an abuse of discretion
    to relieve a party of the obligation to pay a fine on the basis of a
    factor expressly excluded from consideration in imposing that
    fine.
    
    22 Cal.4th 1354
    , 1373-1374.) Accordingly, we hold that 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. We invite the Legislature to consider
    whether the statute should be amended to direct a trial court to
    consider the defendant’s ability to pay in imposing the fine.10
    10     Although a number of courts have ruled or stated that a
    trial court lacks the statutory authority to stay an assessment, a
    fee, and a restitution fine (see, e.g., People v. Sweeney (2014) 
    228 Cal.App.4th 142
    , 154-155; People v. Woods (2010) 
    191 Cal.App.4th 269
    , 272); that assessments and fees are statutorily
    mandated (People v. Rodriguez (2012) 
    207 Cal.App.4th 1540
    ,
    1543, fn. 2;); or that imposing a restitution fine without
    consideration of ability to pay does not violate the equal
    protection clause (People v. Glenn (1985) 
    164 Cal.App.3d 736
    ,
    739-740), none of these cases presented a due process challenge
    to Penal Code section 1202.4 based on the statute’s preclusion of
    considering a defendant’s inability to pay the minimum
    restitution fine amount. To the extent that People v. Long (1985)
    
    164 Cal.App.3d 820
     remains viable despite its reliance on
    multiple statutes that have since been amended, we respectfully
    disagree with its due process analysis.
    23
    DISPOSITION
    We reverse the order imposing assessments under
    Government Code section 70373 and Penal Code section 1465.8.
    We remand the case to the trial court with directions to stay the
    execution of the Penal Code section 1202.4 restitution fine unless
    and until the People prove that Dueñas has the present ability to
    pay it.
    ZELON, Acting P. J.
    We concur:
    SEGAL, J.
    WILEY, J.*
    *     Associate Justice of the Court of Appeal, Second Appellate
    District, assigned by the Chief Justice pursuant to article VI,
    section 6 of the California Constitution.
    24