People v. Son
| Decision Date | 27 May 2020 |
| Docket Number | F076252 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Joseph SON, Defendant and Appellant. |
Son challenges his conviction for voluntary manslaughter on grounds that trial counsel committed structural error under McCoy v. Louisiana (2018) ––– U.S. ––––, 138 S.Ct. 1500, 200 L.Ed.2d 821 ( McCoy ). He further argues the trial court prejudicially erred in failing sua sponte to instruct the jury on involuntary manslaughter. We reject these contentions.
Son also asks us to independently review the trial court's rulings, as well as the sealed transcripts and documents, related to a Pitchess motion filed by trial counsel.1 We have done so and found no impropriety in the court's inquiry and rulings.
Finally, Son challenges, under People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), the trial court's imposition, without conducting an ability to pay hearing, of court operations and court facilities assessments, as well as a restitution fine. With regard to the court assessments, we conclude imposition of these assessments, without first giving the defendant an opportunity to request an ability to pay hearing to show he cannot pay them, is unconstitutional. Accordingly, remand is required to give Son an opportunity to request an ability to pay hearing. On remand, should Son request such a hearing and show he cannot pay the court operations and court facilities assessments at issue, the court must vacate them. In the event Son does not request an ability to pay hearing, or requests such a hearing but fails to show he cannot pay the relevant court assessments, they shall remain in effect. As for the restitution fine, we conclude that, in contrast to the court assessments, an ability to pay hearing is not constitutionally required before imposition of the restitution fine. We therefore affirm the restitution fine imposed in this matter.
The matter is remanded for further proceedings consistent with this opinion. The judgment is otherwise affirmed.
Son was charged, by an amended information filed in the Kern County Superior Court, with committing, on October 10, 2011, while serving a life sentence, the crime of assault, with malice aforethought and by means of force likely to produce great bodily injury. ( Pen. Code, § 4500.)2 The information also alleged that Son had an August 25, 2011 conviction for torture (§ 206) that qualified as both a strike prior (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)) and as a serious felony prior (§ 667, subd. (a)).
A jury found Son not guilty of the charged offense but guilty of the lesser included offense of voluntary manslaughter. (§ 192, subd. (a).) In a bifurcated proceeding, the trial court found the prior conviction allegations to be true.
Son, who was already serving a life term in prison, was sentenced to 22 years on the voluntary manslaughter conviction (double the upper term of 11 years). (§ 193, subd. (a).) In addition, he was sentenced to five years on the serious felony enhancement allegation. (§ 667, subd. (a).) His aggregate sentence in the instant case was 27 years, to be served consecutive to the life term he was serving in a prior case.
In common with a great many other cases, this case raises the issues decided in Dueñas, supra , 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268, involving the constitutionality of imposing court assessments and restitution fines as adjuncts to convicted defendants' sentences regardless of ability to pay. Dueñas is an innovative decision that has brought judicial attention across the state to bear on an important problem. In our view, one aspect of its holding correctly identifies a constitutional deficiency that has been overlooked in the past, while another is incompatible with controlling authority. In a nutshell, assessments designed as user fees to fund the courts (here, the court operations and court facilities assessments) cannot be administered to criminal defendants without regard to ability to pay, just as other cost-recovery charges that bear on access to the criminal process—such as fees for trial records to be used on appeal—cannot. But fines imposed as punishment (here, the restitution fine) are subject to the existing constitutional rule that monetary punishments in and of themselves need not be adjusted in accordance with ability to pay.
Son, at sentencing, was ordered to pay a $30 court facilities assessment ( Gov. Code, § 70373 ), a $40 court operations assessment (§ 1465.8), and a $280 restitution fine (§ 1202.4, subd. (b)).14 Citing Dueñas , Son argues that the imposition of the assessments and fine without a prior hearing to determine his ability to pay them contravened the guaranties of due process of law and equal protection of the laws contained in the state and federal constitutions.
We agree with Dueñas in part. As we explain in more detail below, there is a constitutional difficulty with the imposition of the court operations assessment and the court facilities assessment without a prior determination of a defendant's ability to pay. The implementation of these assessments—which are designed to function as user fees—without regard to ability to pay, places a greater burden on those who cannot pay than on those who can. A solvent defendant who is ordered to pay the assessments suffers the loss of the assessment amounts, but an indigent defendant under the same order experiences the web of consequences of being a delinquent debtor—loss of access to credit, declarations of delinquency on other debts that have cross-default provisions, actual defaults on other debts caused by the strain of attempting to satisfy the court-imposed debt, harm to employment and housing relationships and prospects, loss in some cases of opportunities for expungement of convictions and early termination of probation, and more—and is still on the hook for the court-ordered payment, plus collection fees and interest.
This means it is more costly in real terms for indigent convicted defendants to have had access to courts in which to defend themselves, than it is for solvent convicted defendants to have had the same access. The situation is no different than it would be if, for instance, the cost of the court reporter's transcript was not waived for an indigent criminal appellant but instead became a debt payable to the court upon affirmance of the underlying conviction. Just as the latter situation would be prohibited by United States Supreme Court precedents holding that the right of access to the criminal courts is a fundamental right and its exercise cannot constitutionally be curtailed on the basis of ability to pay, so too is the imposition, without regard to ability to pay, of user fees in the form of court assessments, prohibited by these precedents.
On the other hand, it is not unconstitutional to impose the restitution fine without regard to ability to pay. Unlike the court assessments discussed above, the restitution fine is not a user fee collected from those who must use the courts, to fund the courts. Rather, it has been classified by our Supreme Court as a form of punishment. Furthermore, the United States Supreme Court has stated that the states' enforcement of judgments arising from unpaid fines imposed as punishment , is not constitutionally limited by the indigency of defendants. A statutory regime under which an unpaid, punitive fine is converted automatically to a jail term, regardless of ability to pay, is not constitutional; nor is a scheme whereby a fine is a condition of probation, and failure to satisfy that condition leads to incarceration, regardless of ability to pay. But we are not faced with situations like those in this case, as the restitution fine imposed here is a monetary form of punishment that, if unpaid, would result, not in incarceration, but in a monetary judgment against the defendant.
In sum, our constitutional jurisprudence draws a critical distinction between user fees (in the form of nonpunitive court assessments) and monetary punishments (in the form of punitive fines), because imposition of the former implicates the constitutional right of access to the courts while imposition of the latter does not. Accordingly, we agree with Dueñas to the extent it holds that, under the Constitution, a defendant must have the opportunity to request an ability to pay hearing before court assessments are imposed at sentencing. However, in light of the United States Supreme Court precedents clarifying that, under the Constitution, indigency is not a bar to enforcement of monetary judgments arising from unpaid fines imposed as punishment , we disagree with Dueñas to the extent it further holds an ability to pay hearing is constitutionally required before imposition of the restitution fine.
Dueñas was convicted of one misdemeanor count of driving with a suspended license. The trial court placed her on 36 months' summary probation with 30 days in jail and a $300 fine as probation conditions, but offered to impose nine more days in jail as an alternative to the fine. Dueñas was disabled, unemployed, and homeless; she, her husband, and their two children lived alternately at her mother's home and his mother's home; and they had no money other than subsistence benefits they spent on basic necessities. Her clothing and telephone were her only assets. Her driver's license had long been suspended because of three citations she had received as a minor and had never been able to pay. She had served jail time in lieu of fines in the past for driving while unable to pay these citations, and for each such conviction, assessments and fees were added that she also was unable to pay. She agreed to take the nine extra days in jail instead of adding another $300 to the unpayable...
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