People v. Estrada ( 2024 )

Filed 6/14/24
TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
APPELLATE DIVISION
THE PEOPLE, Appellate Division No.: CA296068
Trial Court Case No.: C419236DV
Plaintiff(s) and Respondent(s), Trial Court Location: East County Division
v.
DECISION/STATEMENT OF REASONS
ROMAN ESTRADA, (CCP §77(d)) BY THE COURT
Defendant(s) and Appellant(s).
APPEAL from the August 17, 2023, Judge Reali-Ferrari, Judge.
AFFIRMED with directions.
Defendant objected to the imposition of $745 in fines, fees, and assessments, under People
v. Dueñas (2019) 30 Cal.App.5th 1157, arguing that because he would be in federal prison for a
period of two years, he had a current inability to pay. Dueñas is not settled law. By its own
language, Dueñas does not apply to the Penal Code section 1203.097 fine of $500, as it was not one
of the fines or fees discussed in Dueñas. And therefore, Dueñas arguments do not apply to that
$500 portion of the imposed fines. As to the $150 restitution fine under Penal Code section 1202.4,
this Court agrees with the appellate court cases holding Dueñas was incorrectly decided as to the
restitution fine. And therefore, Defendant is not entitled to relief for that $150 portion of the
imposed fines. The majority does find that Dueñas was correctly decided on equal protection
DECISION/STATEMENT OF REASONS (CCP §77(d)) BY THE COURT
grounds as to the non-punitive assessments under Government Code section 70373 and Penal Code
section 1465.8. But because prison wages are to be considered in ability to pay, this record does not
support an inability to pay the $70 imposed by these non-punitive assessments. (See People v.
Johnson (2019) 35 Cal.App.5th 134, 139–140.)
It appears that the trial court improperly imposed a $25 assessment under Penal Code
section 1463.07. Penal Code section 1643.07 was repealed by Assembly Bill 177 effective
September 23, 2021. Therefore, $25 should be removed from the total fines and fees.
Procedural and Factual Background
It was alleged that on or about July 29, 2022, Mr. Estrada vandalized property of another in
an amount of less than $400, trespassed in an occupied dwelling house, and resisted an officer in
the County of San Diego. On August 2, 2023, the Office of the District Attorney filed a complaint
against Mr. Estrada with one count of Penal Code section 594, subdivision (a)(b)(2)(A) (vandalism
under $400), one count of Penal Code section 602.5, subdivision (b) (aggravated trespass of
occupied dwelling house), and one count of Penal Code section 148, subdivision (a)(l) (resisting an
officer). He was arraigned that day. Mr. Estrada pled guilty to count one, a violation of Penal Code
section 594, subdivision (a)(b)(2)(A), on August 17, 2023. He was sentenced that day.
At sentencing, the trial court imposed $745 in total fines. The breakdown of these fines
appears to be $500 under Penal Code section 1203.097, subdivision (a)(5)(A), $150 under Penal
Code section 1202.4, $25 under Penal Code section 1463.07, $30 under Government Code section
70373 and $40 Penal Code section 1465.8. There was a discussion of the trial court possibly
reducing the total fines to $500 instead of the $745, but the court never explicitly made that
reduction,
Defense counsel argued that no fines and fees should be imposed pursuant to People v.
Dueñas because the client was going to federal prison for 24 months and had been in local custody
for a significant time, he would not be able to pay. Defense counsel did not request additional time
or the setting of an ability to pay hearing.
Mr. Estrada filed his notice of appeal on August 29, 2023.
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DECISION/STATEMENT OF REASONS (CCP §77(d)) BY THE COURT
DISCUSSION
I. Overview of case law related to Dueñas.
There is a conflict between appellate court decisions as to whether Dueñas is good law.
While there are many cases following Dueñas, every appellate district has at least one case saying
that Dueñas was wrongly decided. (People v. Cowan (2020) 47 Cal.App.5th 32, 35 (1st DCA, Div.
4); People v. Hicks (2019) 40 Cal.App.5th 320, 322 (2nd DCA, Div.2); People v. Pack-Ramirez
(2020) 56 Cal.App.5th 851, 860 (3rd DCA); People v. Cota (2020) 45 Cal.App.5th 786, 794–795
(4th DCA, Div. 1); People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 (5th DCA); People v. Greeley
(2021) 70 Cal.App.5th 609, 625 (6th DCA).) Some courts—while not totally rejecting Dueñas—
held that it should be limited to its extreme facts. (People v. Caceres (2019) 39 Cal.App.5th 917,
926–927; People v. Kopp (2019) 38 Cal.App.5th 47, 94 [this case has been under review at the
California Supreme Court since November 13, 2019].) Other courts have held that it was correctly
decided as to the non-punitive fees, but incorrectly decided as to the restitution fine. (People v. Son
(2020) 49 Cal.App.5th 565, 592-595; People v. Kopp (2019) 38 Cal.App.5th 47, 96–97.)
When appellate court decisions are in conflict, “the court exercising inferior jurisdiction can
and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc. v. Superior
Court of Santa Clara County (1962) 57 Cal.2d 450, 456.) Typically, superior courts will follow
appellate decisions from their district, but they are not bound to do so. (McCallum v. McCallum
(1987) 190 Cal.App.3d 308, 315 fn. 4.)
The Fourth Appellate District, Division One, has three cases addressing Dueñas.
One dealt with a request to apply Dueñas to restitution. (People v. Allen (2019) 41
Cal.App.5th 312.) The Court discussed that Dueñas did not apply because the case did not discuss
restitution—but instead the restitution fine—and that restitution is mandated under the California
Constitution. The Court also rejected Dueñas’s due process analysis. “Second, even if we were
otherwise inclined to extend Dueñas to victim restitution, we would adopt the reasoning of the
numerous courts that have rejected Dueñas's due process analysis. [citations omitted] Many of these
courts ‘have suggested that the proper analytic framework ... is the excessive fines clause of the
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DECISION/STATEMENT OF REASONS (CCP §77(d)) BY THE COURT
Eighth Amendment to the United States Constitution, rather than the due process clause.’ [citations
omitted]” (People v. Allen (2019) 41 Cal.App.5th 312, 326.)
Another case analyzed whether relief under Dueñas had been forfeited by a failure to object
at the trial level. (People v. Gutierrez (2019) 35 Cal.App.5th 1027.) The majority in Gutierrez did
not explicitly address the validity of Dueñas and instead denied relief based on a forfeiture theory.
Justice Benke wrote a concurrence to that decision. “More fundamentally I write to express my
disagreement with Dueñas, which I believe misapplies California's statutory law and erroneously
selects a general due process and equal protection theory as the basis for its decision. I instead
believe that the Eighth Amendment to the United States Constitution offers a more proper basis for
determining when a fine or fee exceeds constitutional limits, to the extent such an analysis is
necessary.” (Id. at p. 1034.)
While the underlying charges are extremely different, the final case is the most like the facts
at hand in terms of the Dueñas considerations. The defendants in that case were sentenced to prison
and objected to the imposition of various fines, fees and assessments, and requested an ability to
pay hearing to be set later. (People v. Kopp (2019) 38 Cal.App.5th 47, 93.) “The court then imposed
the following assessments and fines on Appellants: a restitution fine of $10,000 under Penal Code
section 1202.4, subdivision (b); a court security fee of $120 under Penal Code section 1465.8; an
immediate critical needs account fee of $90 under Government Code section 70373; a criminal
justice administrative fee of $154 under Government Code section 29550.1; a drug program fee of
$615 under Health and Safety Code section 11372.5; and a lab analysis fee of $205 under Health
and Safety Code section 11372.5. The court also ordered but stayed a parole revocation restitution
fee of $10,000 under Penal Code section 1202.45.” (Id. at pp. 93–94.) The Court found that for
punitive fines—such as the restitution fine—"there is no due process requirement that the court
hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it
determines the defendant can afford to pay it.” (Id. at pp. 96–97.) The Court found that for the non-
punitive fees there does need to be an ability to pay, but the court is “not wholly endorsing Dueñas,
supra, 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268, [they] want to make clear that it is Appellants'
burden to make a record below as to their ability to pay these assessments. To the extent the Dueñas
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DECISION/STATEMENT OF REASONS (CCP §77(d)) BY THE COURT
court implies that it is the prosecution's burden to prove that a defendant can pay an assessment (see
id. at p. 1172, 242 Cal.Rptr.3d 268), we disagree.” (Id. at 96.) The Court also cautioned in
following or applying Dueñas “without regard to the extreme facts Dueñas presented.” (Id. at p.
94.) The Court discussed that those facts included that the defendant “was an indigent, homeless
mother of two, who subsisted on public aid while suffering from cerebral palsy.” (Ibid.) Justice
Benke concurred in the opinion but believed any analysis as to the payments of fines or fees should
be under Eighth Amendment analysis not Dueñas. (Id. at pp. 98-100.)
The California Supreme Court took Kopp under review on November 13, 2019. It is still
pending. Therefore, Kopp is not binding precedent, but it can still be considered for its persuasive
value. (Cal. Rules of Court, 8.1105(e)(1)(B) & 8.1115(e)(1).)
II. Dueñas analysis does not apply to the Penal Code section 1203.097, subdivision (a)(5)(A),
fine.
The Dueñas decision only involved three fines or fees: the restitution fine under Penal Code
section 1202.4, fees under Government Code section 70373 and fees under Penal Code section
1465.8. “’It is axiomatic that cases are not authority for propositions not considered.’” (In re
Marriage of Cornejo (1996) 13 Cal.4th 381, 388 citing People v. Gilbert (1969) 1 Cal.3d 475, 482,
fn. 7.) Because Dueñas did not address—or mention in anyway—fines under Penal Code section
1203.097, subdivision (a)(5)(A), the case does not apply to this fine.
This also makes sense because courts have the authority reduce or waive the fee separate
from Dueñas, if “after a hearing in open court, the court finds that the defendant does not have the
ability to pay.” (Pen. Code, § 1203.097, subd. (a)(5)(A).) In this case, the trial court declined to
exercise that authority. It is apparent that the trial court understood it had such authority as it
discussed the possibility of reducing the overall fees to $500. The grant or denial of a request under
this statute appears to be a discretionary act that would be reviewed under the abuse of discretion
standard. The trial court did not abuse its discretion in declining to reduce or waive the fine on this
record.
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DECISION/STATEMENT OF REASONS (CCP §77(d)) BY THE COURT
III. Dueñas was wrongly decided as to the Penal Code section 1202.4 restitution fine.
Because there is a spilt of authority as to whether Dueñas appropriately applies to the
restitution fine, this Court must make a choice between the conflicting decisions. (Auto Equity
Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456.) This Court finds
that the cases rejecting Dueñas in its entirety, People v. Kopp, and People v. Son, are persuasive in
their reasoning as it applies to the restitution fines. Courts are required to impose a restitution fine
when a defendant is convicted. (Pen. Code, § 1202.4, subd. (b); see also People v. Sencion (2012)
211 Cal.App.4th 480, 483.) The California Supreme Court has held that the restitution fine under
Penal Code section 1202.4 is part of criminal punishment. “Viewed in comparison with other forms
of punishment, the statutory scheme thus confirms the Legislature intended restitution fines as a
criminal penalty rather than as a civil remedy.” (People v. Hanson (2000) 23 Cal.4th 355, 362.) The
United States Supreme Court has found that punitive fines do not violate equal protection or due
process when they do not lead to the consequence of incarceration. (People v. Son (2020) 49
Cal.App.5th 565, 592-595.) The United States Supreme Court has also found “fines imposed as
punishment on their own, without conversion to incarceration as a consequence of being unable to
pay, need not take account of ability to pay to be constitutionally acceptable.” (Id. at p. 593.) Based
on this reasoning, this Court agrees that Dueñas was wrongly decided as to its application to
restitution fines.
The Court also notes that one of the Dueñas court’s concerns with the restitution fine was
the non-payment of such a fine’s effect on the ability to seek relief under Penal Code section
1203.4. “[I]f 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).)” (People v. Duenas (2019) 30 Cal.App.5th
1157, 1170–1171.) Since the Dueñas decision issued the legislature—through Assembly Bill 1281
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DECISION/STATEMENT OF REASONS (CCP §77(d)) BY THE COURT
in 2021—has modified Penal Code section 1203.4—and similar statutes, such as Penal Code
sections 17 and 1203.4a—to prohibit denial of relief based on unpaid restitution fines. This
modification also factors in this Court’s agreement with the cases finding Dueñas was wrongly
decided as to its application to the restitution fine.
Because this Court finds that Dueñas does not apply to restitution fines, there was no error
with the trial court imposing the $150 restitution fine.
IV. Dueñas analysis should be applied to the $30 Government Code section 70373 and $40
Penal Code section 1465.8 fees, but because prison wages are considered in determining
ability to pay, relief under Dueñas is not warranted in these circumstances.
Because there is a spilt of authority as to whether Dueñas appropriately applies to the non-
punitive fees, this Court must make a choice between the conflicting decisions. (Auto Equity Sales,
Inc. v. Superior Court of Santa Clara County, supra, 57 Cal.2d at 456.) This Court finds Dueñas,
Kopp, and Son persuasive in their reasoning that equal protection principles require the finding of
an ability to pay for the non-punitive fees. This Court does also find Kopp persuasive that it is the
defendant’s burden—not the People’s—to prove an inability to pay. (People v. Kopp, supra, 38
Cal.App.5th at 96.) And we are also persuaded that the extreme circumstances of Dueñas should be
considered before applying the principles of Dueñas. (Id. at 94.)
Cases interpreting the two code sections have made clear that neither section is intended to
serve a punitive purpose. (People v. Alford (2007) 42 Cal.4th 749, 759; People v. Fleury (2010) 182
Cal.App.4th 1486, 1492.) Because of the lack of a punitive purpose, it is unclear what rationale
basis there is to treat fees for criminal defendants different than fees for civil defendants.
Defendants in civil cases are entitled to fee waivers in many circumstances, including when they
are unable to pay. (People v. Duenas (2019) 30 Cal.App.5th 1157, 1165–1166.) Because of this,
there appears to be an equal protection violation to have no avenue for criminal defendants to seek a
fee waiver for non-punitive fees.
Even accepting that Dueñas should apply to these fees, it does not appear that should apply
to this case. The argument by defense counsel focused on the idea that because defendant was going
to be sent to prison, he had an inability to pay the fines and fees. Ability to pay analysis includes a
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DECISION/STATEMENT OF REASONS (CCP §77(d)) BY THE COURT
“defendant's ability to obtain prison wages and to earn money after his release from custody.”
(People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) There was no evidence—or even
assertion—that the defendant here would be unable to earn prison wages. Cases fully following
Dueñas have found this a basis to deny relief. (People v. Johnson (2019) 35 Cal.App.5th 134, 139–
140.) This Court does as well. Therefore, there was no error in the trial court imposing the
Government Code section 70373 and Penal Code section 1465.8 fees.
V. The trial court improperly imposed a $25 fee under Penal Code section 1463.07.
It appears that the trial court improperly imposed a $25 assessment under Penal Code
section 1463.07. Penal Code section 1643.07 was repealed by Assembly Bill 177 effective
September 23, 2021. Therefore, $25 should be removed from the total fines and fees.
CONCLUSION
Because Dueñas does not apply to the punitive fines imposed and there is no evidence that
defendant could not earn prison wages to pay for the $70 portion of the fees, the court finds no error
in imposing $720 of the $745 imposed. Because it appears that $25 was imposed based on a statute
that was no longer in effect, the Court is ordering that the total fines and fees be reduced to $720.
The trial court is AFFIRMED with directions.
___________________________
FRANK L. BIRCHAK
Judge, Appellate Division
____________________________
MARYANN D’ADDEZIO
Judge, Appellate Division
HARUTUNIAN, J., concurring and dissenting:
I agree with the majority that there was no error in the trial court imposing the fines and fees
other than the $25 under Penal Code section 1463.07. I also agree that Dueñas does not apply to the
fine under Penal Code section 1203.097 and that the case was wrongly decided as to—and should
not apply to—restitution fines under Penal Code section 1202.4.
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DECISION/STATEMENT OF REASONS (CCP §77(d)) BY THE COURT
Where I disagree with the majority is in the opinion that Dueñas was correctly decided as to
non-punitive fees. I find the concurrences written by Justice Benke in People v. Gutierrez (2019) 35
Cal.App.5th 1027 and People v. Kopp (2019) 38 Cal.App.5th 47 to be well-reasoned and
persuasive. The many cases rejecting Dueñas in its entirety are also persuasive. In particular, the
analysis in People v. Cota (2020) 45 Cal.App.5th 786 and People v. Hicks (2019) 40 Cal.App.5th
320, discussing how the imposition of the non-punitive fees does not bar defendants from actually
accessing the courts or result in their potential incarceration, is persuasive.
____________________________
ALBERT T. HARUTUNIAN III
Presiding Judge, Appellate Division
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DECISION/STATEMENT OF REASONS (CCP §77(d)) BY THE COURT
Counsel for Appellant, Roman Estrada:
MARK SPENCER, ESQ.
451 A STREET, STE 1600
SAN DIEGO, CA 92101
Counsel for Respondent, The People:
KIMBERLY ROTH
OFFICE OF THE DISTRICT ATTORNEY
APPEALS UNIT
330 W. BROADWAY, STE. 860
SAN DIEGO, CA 92101-3827