Filed 10/20/20 P. v. Clayton CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C088788
Plaintiff and Respondent, (Super. Ct. No. CRF 18-5739)
v.
HENRY COLIN CLAYTON,
Defendant and Appellant.
Defendant Henry Colin Clayton appeals the trial court’s finding that he had the
ability to pay the mandatory fines and fees imposed with his sentence, arguing the finding
lacks sufficient evidence. We affirm the judgment because defendant’s ability or
inability to pay does not affect the imposition of the mandatory fines and fees challenged.
We do, however, order correction of the minute order.
FACTS
Defendant was charged with 11 criminal counts and two sentence enhancements in
connection with several burglaries and thefts he committed while using
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methamphetamine. Defendant entered into a negotiated plea and pleaded no contest to
two counts of first degree burglary, three counts of taking and driving a vehicle, and
admitted one prior strike.
The court accepted the plea and sentenced defendant to serve 10 years 8 months in
accordance with the negotiated plea. The court imposed a $300 restitution fine (Pen.
Code, § 1202.4, subd. (b)),1 $300 stayed parole revocation restitution fine (§ 1202.45),
$200 in court operations assessments ($40 for each felony count) (§ 1465.8), and $150 in
conviction assessments ($30 for each felony count) (Gov. Code, § 70373). The court also
held a victim restitution hearing and found sufficient evidence to award a total direct
victim restitution amount of $4,389.36 among three victims. For one victim, D.C., the
court ordered $1,713 in restitution but the minute order states $1,673.40 owed to him.
After defendant filed his appeal, he submitted a request with the trial court to
consider his ability to pay the mandatory fines and fees under section 1237.2. Defendant
argued the court should not consider how much a person can earn in jail because he has a
serious drug problem and may not be able to get prison work while getting treatment.
The court found defendant had the ability to pay the challenged $650 in mandatory fines
and fees because defendant had a “past earning capability and he has a substantial prison
term, and the ability to earn prison wages.” The court therefore denied defendant’s
request.
DISCUSSION
I
Fines and Fees
Defendant argues there was insufficient evidence supporting the trial court’s
determination he had the ability to pay the mandatory fines and fees because there was no
1 Undesignated statutory references are to the Penal Code.
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evidence he can sustain employment in prison or otherwise. The People argue defendant
does not have a right to an ability to pay hearing.
Defendant’s argument depends on his right to have had the court consider his
ability to pay the fines and fees. Defendant assumes he was entitled to this consideration
for the reasons articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Disagreeing with Dueñas, we conclude no such right existed.
In Dueñas, after numerous citations and convictions related to driving without a
license resulted in significant fines and fees the defendant, Dueñas, could not pay, she
requested a hearing to determine her ability to pay those costs. (Dueñas, supra,
30 Cal.App.5th at pp. 1160-1163.) Following the statutory language, the trial court ruled
the assessments were mandatory and Dueñas had not shown the “ ‘compelling and
extraordinary reasons’ ” required to waive the restitution fine. (Id. at p. 1163.)
The Court of Appeal reversed, holding due process prohibits a trial court from
imposing court assessments under section 1465.8 and Government Code section 70373,
and requires the trial court to stay execution of any restitution fines unless it conducts an
ability to pay hearing and ascertains the defendant’s ability to pay those assessments and
fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) To support this conclusion, Dueñas
relied on two lines of due process precedent. First, it cited authorities addressing access
to courts and waiving court costs for indigent civil litigants. Second, it relied on due
process and equal protection authorities that prohibit incarceration based on a defendant’s
indigence and inability to pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also
concluded that imposing costs on indigent defendants “blamelessly” unable to pay them
transformed a “funding mechanism for the courts into additional punishment.” (Id. at
p. 1168.)
People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019,
S258946 (Hicks) rejected Dueñas’s reasoning, under both lines of due process authority.
First, Hicks observed imposition of fees after a determination of guilt does not deny
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criminal defendants access to the courts and does not interfere with defendant’s right to
present a defense or challenge a trial court’s rulings on appeal. (Id., at p. 326.) Second,
Hicks noted imposition of fees, without more, does not result in incarceration for
nonpayment of fines and fees due to indigence; thus, it does not infringe on that
fundamental liberty interest. (Ibid.)
Hicks went on to conclude the Dueñas court’s expansion of these due process
“foundational pillars” was an incorrect interpretation of due process foundations because
it was inconsistent with the principles announced by our Supreme Court and the United
States Supreme Court that imposition of fines and assessments on indigent defendants is
not prohibited because the state has a fundamental interest in punishing those who violate
the criminal law, and not conferring immunity for such punishment on indigent
defendants. (Hicks, supra, 40 Cal.App.5th at p. 327, rev. granted.) In addition, the
Dueñas court’s holding was inconsistent with the purposes and operation of probation
because it relieved indigent defendants of any duty to make an effort to repay their debt
to society. (Hicks, at p 327)
We conclude the reasoning in Hicks, supra, 40 Cal.App.5th 320, is more
persuasive than Dueñas, supra, 30 Cal.App.5th 1157. Accordingly, we conclude the
imposition of mandatory fines, fees, and assessments on an indigent defendant without
consideration of ability to pay does not violate due process and there is no constitutional
requirement for the trial court to conduct an ability to pay hearing prior to imposing these
mandatory fines, fees, and assessments.
We also agree with Hicks that the fundamental policy question presented by
Dueñas, supra, 30 Cal.App.5th 1157 is difficult: the challenges of trying to balance the
concerns about potential debt traps laid by court-imposed fees and punitive fines against
the interests of funding the courts and providing restitution to crime victims. (Hicks,
supra, 40 Cal.App.5th at p. 329, rev. granted.) These policy challenges have yet to be
resolved. (See Governor’s veto message to Assem. on Assem. Bill No. 927 (Oct. 9,
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2019) Recess J. No. 14 (2019-2020 Reg. Sess.) p. 3651.) While the legislative and
executive branches consider the policy questions raised by Dueñas, an ability to pay
hearing is not currently mandated by law.
We recognize that the trial court in this case, in line with Dueñas, supra,
30 Cal.App.5th 1157, assessed defendant’s ability to pay the mandatory fines and
assessments pursuant to section 1237.2. Because we conclude Dueñas is inapplicable,
we express no opinion regarding the trial court’s conclusion defendant had the ability to
pay these fines and assessments.
II
Victim Restitution Minute Order
The People correctly note the minute order inaccurately states the restitution
awarded to D.C.; defendant agrees. Typically, “[w]here there is a discrepancy between
the oral pronouncement of judgment and the minute order or the abstract of judgment, the
oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
We direct the court to correct the minute order to increase the restitution owed to victim
D.C. from $1,673.40 to $1,713.
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DISPOSITION
The judgment is affirmed. The trial court is directed to correct its minute order to
reflect the restitution to victim D.C. as $1,713.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
MURRAY, J.
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