Filed 4/8/21 P. v. Mayen-Alvarado CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A155645
v.
SOCORRO DE JESUS MAYEN- (Marin County
ALVARADO, Super. Ct. No. SC202000)
Defendant and Appellant.
Defendant Socorro De Jesus Mayen-Alvarado appeals his conviction on
one count of committing a lewd act on a child under 14 (Pen. Code,1 § 288,
subd. (a)), one count of committing a lewd act on a child 14 or 15 years old
(id., subd. (c)(1)), and three counts of misdemeanor child molestation (§ 647.6,
subd. (a)), for which he was sentenced to three years eight months in prison.
Defendant makes three contentions: (1) the three misdemeanor counts were
time-barred; (2) the trial court denied him due process by imposing fines and
assessments totaling $650 without holding a hearing on his ability to pay
those charges; and (3) the abstract of judgment mischaracterizes his sentence
on one count. The Attorney General correctly concedes the first and third
points, so that the judgment and abstract must be appropriately modified.
1 All undesignated statutory references are to the Penal Code.
1
As to the second issue, the Attorney General initially contends that
defendant forfeited any challenge by failing to request an ability-to-pay
hearing, and that any error in failing to hold such a hearing was harmless. If
the contention is not forfeited, the Attorney General acknowledges that due
process bars imposition of what he deems “nonpunitive” assessments on a
defendant unable to pay them,2 but he contends that the trial court’s failure to
consider defendant’s inability to pay the nominally “nonpunitive” assessments
at issue here was harmless. The Attorney General contends that whether a
punitive fine is excessive must be analyzed under the excessive fines clause,
rather than the due process clause, and that the $300 punitive fine imposed
on defendant is not excessive even if he is unable to pay it.
Although we acknowledge a conflict of authority among the courts of
appeal, pending a definitive determination by our Supreme Court we adhere
to this court’s holding in People v. Johnson (2019) 35 Cal.App.5th 134, 137–
138 (Johnson) and conclude that defendant did not forfeit his challenge to the
lack of an ability-to-pay hearing. Based on the analysis set forth in this panel’s
more recent opinion in Cowan, supra, 47 Cal.App.5th 32 , we also conclude
that it was necessary to determine defendant’s ability to pay all of the fines
and assessments imposed and that, unlike the situation in Johnson, the record
2 In this panel’s recent opinion in People v. Cowan (2020) 47 Cal.App.5th
32, review granted June 17, 2020, S261952 (Cowan), we concluded that,
although the statutes imposing the court operations assessment (Pen. Code,
§ 1465.8, subd. (a)(1)) and criminal conviction assessment (Gov. Code,
§ 70373, subd. (a)(1)) reflect a nonpunitive legislative intent to raise funds for
the court system, the fact that the assessments are conditioned on the
commission of a crime qualifies them as “punitive” for purposes of the
excessive fines clauses of the federal and state Constitutions (U.S. Const.,
amend. XIII; Cal. Const., art. I, § 17). (Cowan, supra, at pp. 44–45.)
2
in this case does not indicate beyond reasonable doubt that the failure to hold
a hearing was harmless, so that a remand is necessary.
Factual and Procedural History
Defendant, who is now 66 years old, was convicted on two felony
charges—committing lewd acts on a child under 14 and on a child 14 or 15
years old (§ 288, subds. (a) & (c)(1))—and on three misdemeanor counts of
molestation (§ 647.6, subd. (a)), all involving his former girlfriend’s niece.
Because the parties dispute only whether the court erred in imposing certain
fines and assessments without determining defendant’s ability to pay, we
need not detail the underlying facts of the offenses. In October 2018, the
court sentenced defendant to three years and eight months in prison, with
credits of 477 days.3
Based on the five counts of conviction, the court imposed a $200 court
operations assessment (§ 1465.8, subd. (a)(1) [$40 per conviction]) and a $150
criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1) [$30 per
conviction]). The court imposed a minimum restitution fine of $300 (§ 1202.4,
subd. (b)(1)) and a suspended parole-revocation fine in the same amount
(§ 1202.45).
The misdemeanor charges all allege conduct occurring significantly
more than three years before the filing of the information. The parties agree
that, because the charging document shows on its face that the applicable
three-year statute of limitations barred those charges (see § 802, subd. (b)),
3 The court sentenced defendant to the low term of three years on one
felony count, count 2 (§ 288, subd. (a)), and a consecutive term of eight
months (one third the midterm) on the second felony (§ 288, subd. (c)(1)). The
court neglected to impose sentences on the three misdemeanor counts. The
abstract of judgment incorrectly deems the sentence on count 2 the midterm
penalty. The parties agree that the abstract must be corrected to identify that
sentence as a low term.
3
defendant’s convictions on those counts must be reversed, and the court
operations and criminal conviction assessments therefore must be reduced to
$80 and $60, respectively. After the judgment is corrected, defendant will
thus be subject to assessments totaling $140 and to a restitution fine of $300
(and a suspended fine in the same amount).
Because the court did not hold a hearing on defendant’s ability to pay,
we have very little record on that issue. Defendant cites the presentence report
to support assertions that he lost his housing when he was arrested, last
worked as a gas-station attendant, has diabetes and high blood pressure, and
pays child support for a 10-year-old son. The Attorney General does not
dispute those assertions, but cites other passages in that report indicating
that defendant has a college degree and was employed for 46 years, and that
his son lives with the boy’s mother. Defendant, in turn, does not dispute those
assertions but does dispute the Attorney General’s contention that neither of
his medical conditions entails a “serious disability.” In that regard, he asserts
that the Department of Corrections and Rehabilitation has housed him at the
Stockton Medical Facility, which the department’s website describes as
providing medical care to inmates with “the most severe and long[-]term
needs.” ( [as of 4/7/20].) The
Attorney General has not disputed the veracity of that assertion.
Discussion
1. Defendant’s contention has not been forfeited, nor is any error harmless.
As indicated above, we initially adhere to our decision in Johnson,
supra, 35 Cal.App.5th at pages 138–139, rejecting the Attorney General’s
contention that a defendant sentenced before the decision in People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas) forfeited his challenge to the trial
court’s failure to hold an ability-to-pay hearing by failing to object in the trial
4
court. (See also People v. Castellano (2019) 33 Cal.App.5th 485, 489.) Here, as
in Johnson, defendant was sentenced in October 2018, prior to the January
2019 decision in Dueñas, and the court imposed both assessments and a
restitution fine in the statutory minimum amount.4
In Johnson, however, we also held that the failure to hold an ability-to-
pay hearing had been harmless beyond a reasonable doubt. (Johnson, supra,
38 Cal.App.5th at p. 140.) We noted evidence at trial indicating that—unlike
the homeless and extremely poor defendant in Dueñas, who had a disability
that prevented her from working—the defendant in Johnson had “worked off
and on as a painter and a municipal cleaner,” “owned and used a cell phone
for texting,” and had been able, on the night of the offense, “to afford the
unplanned expense of a hotel room.” (Johnson, supra, at p. 139.) Moreover,
“going forward” Johnson would “have the ability to earn prison wages over a
sustained period.” (Ibid., citing People v. Hennessey (1995) 37 Cal.App.4th
1830, 1837 [court assessing ability to pay restitution fine may consider prison
wages].)5 Concluding that “[t]he idea that he cannot afford to pay $370 while
4 Although United States v. Bajakajian (1998) 524 U.S. 321
(Bajakajian), discussed below, was decided in 1998, and we agree that the
permissibility of a punitive assessment should be determined under Eighth
Amendment standards, we do not believe defendant’s failure to assert
noncompliance with this standard resulted in waiver or forfeiture because the
relevance of that standard to the assessments in question had apparently
escaped the attention of the bar and the courts until brought out in the more
recent decisions cited in the text below. Moreover, defendant has not argued
on appeal that the Bajakajian standard applies. Further, even if waived, this
court retains discretion to consider the issue.
5 Defendant disputes “the assumption that equal protection and due
process are not violated if the defendant pays the fines . . . through prison
wages.” However, even if fines do “affect indigent inmates disproportionately,”
as defendant asserts, he has not shown any violation of a constitutional right
arising from the rule that, “ ‘in determining whether a defendant has the
ability to pay a restitution fine, the court is not limited to considering a
5
serving an eight-year prison sentence is unsustainable,” we held that any
error under Dueñas was harmless, as Johnson would have “ample time to pay
[the $370] from a readily available source of income while incarcerated.”
(Johnson, supra, at p. 139.)
The Attorney General’s attempt to analogize this case to Johnson,
supra, 38 Cal.App.5th 923 has some force, but is ultimately unavailing. It
may be that defendant’s medical problems will not prevent him from working
in prison, but we are reluctant to rely on such a supposition to resolve a
factual issue that defendant had no occasion to dispute. Moreover, defendant
will serve only two years and just over four months in prison, as opposed to
the eight years at issue in Johnson. (See also People v. Jones (2019)
36 Cal.App.5th 1028, 1035 [following Johnson in case involving 6-year
sentence with 332 days’ credit and total charges of $370].) During his
28 months in prison, defendant may or may not be able to earn enough to pay
the $440 of fines and assessments that have been imposed.6 Moreover, it may
or may not be reasonable to expect that upon his release he will be able to
earn enough to pay those amounts. Thus, because we conclude that
defendant’s present ability but may consider . . . ability to pay in the future,’ ”
including ability “to obtain prison wages.” (People v. Hennessy, supra,
37 Cal.App.4th at p. 1837.)
6The Attorney General notes that prisoners in California earn
minimum wages of $12 per month. (Cal. Dept. of Corrections & Rehab.
Operations Manual (2019) § 51120.6, ch. 5, p. 355.) Other courts addressing
whether Dueñas errors were harmless have cited regulations indicating that
prison wages range from $12 to $56 per month, with up to half those
earnings, plus outside financial support deposited in a prisoner’s trust
account, subject to garnishment to pay restitution fines. (People v. Jones,
supra, 36 Cal.App.5th at p. 1035, citing Pen. Code, § 2085.5; Cal. Code Regs.,
tit. 15, §§ 3041.2, subd. (a)(1), 3097, subd. (f); accord, People v. Aviles (2019)
39 Cal.App.5th 1055, 1076.)
6
defendant’s ability to pay requires consideration, remand to consider this
factual issue is required.
2. The Attorney General acknowledges that substantive due process bars
the imposition of the nominally “nonpunitive” assessments if defendant is
unable to pay them.
Dueñas held 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
Penal Code section 1465.8 and Government Code section 7073.” (Dueñas,
supra, 30 Cal.App.5th at p. 1164; see also, e.g., People v. Kopp (2019)
38 Cal.App.5th 47, 95–96, review granted Nov. 13, 2019, S257844 (Kopp).)
Although some decisions have disagreed with the due process analysis and
conclusions in Dueñas (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034–
1041 (conc. opn. of Benke, J.); People v. Hicks (2019) 40 Cal.App.5th 320, 322,
review granted Nov. 26, 2019, S258946; People v. Aviles, supra,
39 Cal.App.5th at pp. 1067–1069), the Attorney General, relying on two of the
United States Supreme Court decisions on which the Dueñas court relied
(Mayer v. City of Chicago (1971) 404 U.S. 189; Griffin v. Illinois (1956)
351 U.S. 12), acknowledges that substantive due process precludes the
imposition of “nonpunitive” fines on defendants who have no ability to pay
them. As set forth in Cowan, supra, 47 Cal.App.5th 32 , we reach the same
conclusion based on the Eighth Amendment and article I, section 17 of the
California Constitution. While the Attorney General contends the record
establishes beyond a reasonable doubt that defendant has the ability to pay
these assessments, for the reasons indicated above we do not agree and
conclude that remand is necessary to determine this factual question.
7
3. Consideration of defendant’s ability to pay is also necessary with
respect to imposition of the explicitly punitive restitution fine.
The Attorney General does dispute the contention that due process
requires the court to hold an ability-to-pay hearing and determine the
defendant’s ability to pay before the court may impose (without staying) a
restitution fine. As two cases disagreeing with Dueñas have recently held
(e.g., Kopp, supra, 38 Cal.App.5th at pp. 96–97; People v. Aviles, supra,
39 Cal.App.5th at pp. 1069–1070), the Attorney General argues that the
propriety of such a fine, which admittedly is punitive in nature, is to be
measured not by substantive due process standards but by compliance with
the Eighth Amendment and California’s constitutional prohibition on the
imposition of excessive fines (Cal. Const., art. I, § 17). In Cowan, supra, 47
Cal.App.5th at page 42, this panel concluded that the issue is properly
analyzed under those provisions. Indeed, in People ex rel. Lockyer v. R.J.
Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 (R.J. Reynolds), the
Supreme Court noted that a civil penalty was “subject both to the state and
the federal constitutional bans on excessive fines as well as state and federal
provisions barring violations of due process.” In all events, the difference is of
no significance to the present controversy, because the defendant’s ability to
pay is also a factor under the constitutional prohibition of excessive fines.
Both the federal and state constitutions require a court imposing a punitive
fine to assess a defendant’s ability to pay as one of four factors that
determine whether the fine is excessive. (R.J. Reynolds, supra, at p. 728,
citing Bajakajian, supra, 524 U.S. at pp. 337–338.) The court held that
separate analysis under the due process and excessive fines provisions is
“unnecessary” because it “makes no difference whether we examine the issue
as an excessive fine or a violation of due process.” (Ibid.) The Court of Appeal
8
in Dueñas explicitly noted the Supreme Court’s recognition of this
congruence. (30 Cal.App.5th at p. 1171, fn. 8.)
R.J. Reynolds quoted Bajakajian’s observation that “ ‘[t]he touchstone
of the constitutional inquiry under the excessive fines clause is the principle
of proportionality’ ” and paraphrased the four considerations that bear on
proportionality: “(1) the defendant’s culpability; (2) the relationship between
the harm and the penalty; (3) the penalties imposed in similar statutes; and
(4) the defendant’s ability to pay.” (R.J. Reynolds, supra, 37 Cal.4th at
p. 728.) While neither the excessive fines clause nor the due process clause
categorically bars the imposition of a punitive fine solely because it exceeds a
defendant’s ability to pay, the defendant’s ability to pay is a significant factor
that must be considered along with the other three so-called Bajakajian
factors in determining whether the fine is proportionate to the circumstances
or is excessive.
Because the federal and California constitutions oblige a court to
consider that factor, it follows that the procedural requirements inherent in
the due process clause require that before imposing a punitive fine the court
must provide the defendant with an opportunity to address that factor (as
well as the other Bajakajian factors). Although some recent decisions can be
read to suggest otherwise (e.g., Kopp, supra, 38 Cal.App.5th at pp. 96–97), we
do not believe that, consistent with due process, the court may impose that
punishment without allowing a defendant, on request, to present evidence
and argument why such a penalty is not appropriate.
Because in imposing the restitution fine in this case the trial court did
not weigh the Bajakajian factors, and because the important factor of
defendant’s ability to pay is a factual question, the matter must be remanded
so that the trial court can make the necessary factual finding and then
9
determine whether, in light of all those factors, the restitution fine is
constitutionally permissible. (R.J. Reynolds, supra, 37 Cal.4th at p. 731.)
4. Defendant bears the burden of proving his inability to pay.
Although Dueñas can be read to suggest that the People bear the burden
of proving a defendant’s ability to pay a challenged fine (Dueñas, supra,
30 Cal.App.5th at p. 1172), as we said in Cowan, we agree with the courts
that have since held that a defendant bears the burden of proving an inability
to pay a proposed fine or assessment (Cowan, supra, 47 Cal.App.5th at p. 49,
citing People v. Santos (2019) 38 Cal.App.5th 923, 934; Kopp, supra,
38 Cal.App.5th at p. 96; People v. Castellano, supra, 33 Cal.App.5th at p. 490
[same division that decided Dueñas holding that defendant must “in the first
instance contest . . . his or her ability to pay the [charges] to be imposed and
at a hearing present evidence of his or her inability to pay”]).
On remand, the court must hold a hearing at which defendant may
offer evidence and arguments about his ability to pay the charges at issue
and the permissibility of the charges after considering all four Bajakajian
factors.7
Disposition
The judgment is reversed with directions to vacate defendant’s
convictions on counts 4 through 6 (Pen. Code, § 647.6, subd. (a)); correct the
abstract of judgment to identify the sentence imposed on count 2 as a low
7 In weighing these factors, defendant’s asserted inability to pay should
not be considered a negative factor unless, as in Dueñas, it can reasonably be
determined that defendant will not acquire that ability in the future. If,
looking forward, there is doubt in that regard, and the assessment is
otherwise appropriate and is imposed, the defendant may attempt to
establish his inability to make the payments should subsequent efforts be
made to enforce the assessment or to penalize him for willful failure to pay it.
10
term; and hold a hearing to determine whether the charges may be imposed
on defendant consistent with the constitutional standard described in this
opinion.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
TUCHER, J.
11