Date of Hearing: March 20, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 227

Author:(Jones-Sawyer) – As Introduced Ver:January 17, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

Authorizes a court to waive imposition of a criminal conviction assessment fee, court operations assessment fee or restitution fine based on the court’s determination of the defendant’s ability to pay.

FISCAL EFFECT:

1. Potential ongoing costs (Trial Court Trust Fund/GF) in the hundreds of millions of dollars in lost revenues depending on the frequency with which courts waive imposition of criminal conviction assessment fees.
   
   In fiscal year 2017-18, the trial courts collected approximately $91.7 million in revenue from the $30 and $35 criminal conviction assessment fees on misdemeanors, felonies and infractions pursuant to Government Code section 70373 and $108 million in revenue from the $40 court operations assessment fee for criminal offenses pursuant to Penal Code section 1465.8.
2. Potential costs in the form of lost revenue (Restitution Fund) in the tens of millions of dollars depending on how often a court waives imposition of the restitution fine based on the defendant’s ability to pay. In fiscal year 2017-18, approximately $50 million was deposited into the Restitution Fund from amounts levied pursuant to Penal Code section 1202.4.

COMMENTS:

1. Purpose. According to the author:

Individuals convicted of criminal offenses, including traffic violations, are often required to pay a number of fines and fees as part of their punishment. Concern has been expressed over the amount of these fees and the general policy of funding local services on the backs of low-income defendants. The net effect of this policy has been to ensure cycles of poverty and recidivism; effectively punishing the poor for being poor. This bill is a step in the right direction by codifying into law the appellate court decision that acknowledges the mandatory imposition of these fines, without a determination of a defendant’s ability to pay, is a violation of a defendant’s civil rights.

1. Background. Court-imposed assessments for convictions of misdemeanors, felonies and infractions fund, in part, trial court administration and construction (See Gov. Code, § 70372 and Pen. Code, § 1465.8.) Judicial Council estimated that, in 2018, it collected $1.5 billion from court-ordered fines, fees, forfeitures, penalties and assessments. Of the amount collected, $583.5 million was from delinquent court-ordered debt. A portion of this amount derives from imposition of the conviction assessment fee.

However, hundreds of millions of dollars were never collected from defendants with significant, long-term consequences to defendants for their failure to pay. Courts have no discretion in imposing the criminal assessment and court operations fees pursuant to Government Code section 70373 and Penal Code 1465.8. Additionally, a recent Appellate Court decision determined that courts may not impose fines and fees on defendants with no ability to pay and to do so violates both the state and federal due process clasuses. (People v. Duenas (2019) 30 Cal.App.5th 1157.)

1. Support. According to the California Public Defenders Association:

AB 227… serves to bring our criminal fine and assessment statutes into alignment with the state and federal constitutions. Indeed, in the recently published opinion in People v. Duenas (2019) 30 Cal.App.5th 1157, the Court of Appeal found that imposition of court fines and fees on a defendant without inquiring into the defendant’s ability to pay violated state and federal constitutional guarantees. (Id. at p. 270.) As the Duenas court put it: “Because the only reason [the defendant] cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional.” (Ibid.) AB 227 will help ensure that people are not penalized specifically for being poor. “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.) AB 227 requires courts to take into account a defendant’s ability to pay the restitution fine and court assessments, and in doing so frees our system from one sanction on the impoverished.

1. Opposition. According to the Southwest California Legislative Council, which is a coalition of members of some Chambers of Commerce:

[U]nder existing law, courts are already required to consider a defendant’s inability to pay restitution and court operations fines but it is not automatic and is not a compelling or extraordinary consideration. [This bill] is both unnecessary and an additional mandate prohibiting the court from due process consideration.

1. Prior Legislation.
   
   1. AB 898 (Alejo), Chapter 358, Statutes of 2011, increased the minimum restitution fine incrementally over a three year period from $200 to $300 for a felony conviction and from $100 to $150 for a misdemeanor conviction.
      
   2. SB 13 X4 (Ducheny), Chapter 22, Statutes of 2009, increased the court security fee from $20 to $30 on each criminal conviction.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: February 26, 2019

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 227

Author:(Jones-Sawyer) – As Introduced Ver:January 17, 2019

SUMMARY:

Permits the court to waive specified mandatory fines and assessments if it determines that a defendant does not have the ability to pay. Specifically, this bill:

1. Requires the court to impose a restitution fine unless it finds that the defendant does not have the ability to pay, or that there are other compelling and extraordinary reasons for not doing so.
   
2. Allows the court to waive the court facilities assessment if it finds that the defendant does not have the ability to pay.
   
3. Allows the court to waive the court operations assessment if it finds that the defendant does not have the ability to pay.

EXISTING STATE LAW:

1. Prohibits the imposition of excessive fines. (Cal. Const., art. 1, § 17.)
   
2. States that, in addition to any other penalty provided or imposed under the law, the court shall order the defendant to pay both a restitution fine and restitution to the victim or victims, if any. (Pen. Code, § 1202.4, subd. (a)(3).)
   
3. Requires the court to impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. (Pen. Code § 1202.4, subd. (c).)
   
4. States that inability to pay is not a compelling reason for declining to impose the fine, but that inability to pay may be considered as a factor in setting the fine above the statutory minimum. (Pen. Code § 1202.4, (c).)
   
5. Requires the court to assess an additional probation-revocation restitution fine in the same amount as that imposed for the restitution fine. This additional fine becomes effective upon the revocation of probation, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. (Pen. Code § 1202.44.)
   
6. Requires the court to assess an additional parole-revocation restitution fine, post-release community-supervision (PRCS) revocation fine, or mandatory-supervision revocation fine in the same amount as that imposed for the restitution fine. This additional fine is suspended unless parole, PRCS, or mandatory supervision is revoked. (Pen. Code § 1202.45.)
   
7. Requires the court to impose a $40 assessment on every conviction for a criminal offense in order to assist in funding court operations. (Pen. Code, § 1465.8, subd. (a).)
   
8. Requires the court to impose a $30 assessment on every misdemeanor or felony criminal conviction and a $35 assessment on every infraction conviction, in order to maintain adequate funding for court facilities. (Gov. Code, § 70373, subd. (a).)

EXISTING FEDERAL LAW:

1. Prohibits the imposition of excessive fines. (U.S. Const., 8th Amend.)
   
2. Provides that no one shall be “deprived of life, liberty or property without due process of law.” (U.S. Const., 5th Amend.)
   
3. Prohibits the states from depriving any person of life, liberty, or property, without due process of law; or denying to any person within its jurisdiction the equal protection of the laws. (U.S. Const., 14th Amend.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Individuals convicted of criminal offenses, including traffic violations, are often required to pay a number of fines and fees as part of their punishment. Concern has been expressed over the amount of these fees and the general policy of funding local services on the backs of low-income defendants. The net effect of this policy has been to ensure cycles of poverty and recidivism; effectively punishing the poor for being poor. This bill is a step in the right direction by codifying into law the appellate court decision that acknowledges the mandatory imposition of these fines, without a determination of a defendant’s ability to pay, is a violation of a defendant’s civil rights.”
   
2. People v. Duenas (2019) 30 Cal.App.5th 1157: The Second District Court of Appeal recently held in People v. Duenas that imposing court fines and assessments on indigent defendants who lack the ability to pay violates the Due Process Clauses of both the United States and California Constitutions. (Id. at p. 1168.)
   
   In Duenas, the trial court imposed $220 in fines and fees when an indigent, homeless mother of three children pleaded no contest to driving a suspended license.^[1] (People v. Duenas, supra, 30 Cal.App.5th at p. 1160.) The court ordered that any outstanding debt at the end of Ms. Duenas’s probation would go to collections without further court order. (Ibid.) Ms. Duenas argued on appeal that the failure to consider her ability to make pay before imposition of these charges violates due process.^[2] (Ibid.) Specifically, Duenas argued that laws imposing mandatory fines on people who are too poor to pay essential punish these persons for their poverty. (Id. at p. 1164.)
   

The Court of Appeal agreed. The court noted that “’Raising money for government through law enforcement, whatever the source … can law a debt trap for the poor. When a minor offense produces a debt, that debt, along with attendant court appearances, can lead to a 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.’” (People v. Duenas, supra, 30 Cal.App.5th at p. 1163.) The court relied on well-established case law holding that the State cannot inflict punishment on an indigent criminal defendant solely based on his or her poverty. (Id. at pp. 1166-1167, citing In re Antazo (1970) 3 Cal.3d 100; Bearden v. Georgia (1983) 461 U.S. 660 [103 S.Ct. 2064]; and Tate v. Short (1971) 401 U.S. 395 [91 S.Ct. 668].) The court rejected the prosecution’s argument that imposition of fines on people who cannot pay them is not punishment because such people do not face imprisonment for failure to pay, noting that punishment is not restricted to incarceration. (People v. Duenas, supra, 30 Cal.App.5th at pp. 1167-1168.) The court reversed the fees for court facilities and court operations, and stayed the restitution fine. The court remanded the case with directions that the charges be stayed until and unless prosecution establishes the defendant has the ability to pay them. (Id. at pp. 1172-1173.)

The court invited the Legislature to consider whether the statutes should be amended to direct a trial court to consider the defendant’s ability to pay. (People v. Duenas, supra, 30 Cal.App.5th at p. 1172.) This bill would amend the three statutes specifically addressed in the Duenas opinion by allowing the court to waive the charges if the court determines that the defendant is unable to pay them.

1. Financial Implications for Criminal Defendants: ‷As legislative and other policy makers 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 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.” (Citation omitted.) 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.‴ (People v. Duenas, supra, 30 Cal.App.5th at p. 1168, quoting People v. Neal (2018) 29 Cal.App.5th 820, 827.)
2. Growth of Uncollected Debt:  While criminal fines, fees, and penalties have climbed steadily, government entities tasked with collecting these fines have realized diminishing returns from collection efforts.  Government resources can be wasted in futile collection attempts.  A San Francisco Daily Journal article from several years ago noted, "When it comes to collecting fines, superior court officials in several counties describe the process as 'very frustrating,' 'crazy complicated' and 'inefficient.'"  (See State Judges Bemoan Fee Collection Process, San Francisco Daily Journal, 1/5/2015 by Paul Jones and Saul Sugarman.)
   
   Simply put, criminal defendants can generally not produce a substantial flow of money for fines.  That well will quickly run dry.  In the same Daily Journal article, the Presiding Judge of San Bernardino County was quoted as saying "the whole concept is getting blood out of a turnip." (Daily Journal, supra.) The article noted in particular that "Felons convicted to prison time usually can't pay their debts at all.  The annual growth in delinquent debt partly reflects a supply of money that doesn't exist to be collected."  (Ibid.)

In March of 2017, when the Legislative Analyst’s Office (LAO) analyzed the Governor’s criminal fines and fees proposal for the 2017-2018 budget, it noted, “Based on available data in Judicial Council reports, the total amount of criminal fines and fees collected has declined annually since 2013-14. … [T]otal collections decreased by nearly $200 million—from $1.8 billion in 2013-14 to $1.6 billion in 2015-16. The $1.6 billion consists of about $905 million (56 percent) in debt that was not delinquent and $720 million (44 percent) in delinquent debt.” (See 2017-2018 Budget: Governor’s Criminal Fines and Fees Proposal, pp. 7-8, http://www.lao.ca.gov/reports/2017/3600/Criminal-Fine-Fee-030317.pdf)

As to the balance of outstanding debt, the LAO commented, “Every year, the courts estimate the total outstanding balance of debt owed by individuals. This balance may decrease when individuals make payments or debt is resolve in an alternative manner, such as when a portion of debt is dismissed because the individual performs community service in lieu of payment. However, this amount generally grows each year as some amount of newly imposed fines and fees goes unpaid and is added to the amount of unresolved debt from prior years. … [A]n estimated $12.3 billion in fines and fees remained outstanding at the end of 2015-16. We would note, however, that a large portion of this balance may not be collectable as the costs of collection could outweigh the amount that would actually be collected.” (Id. at p. 8.)

1. Restitution Fine: A convicted defendant must pay a restitution fine. (Pen. Code, § 1202.4, subd. (b).) The fine can only be waived if the court finds compelling and extraordinary reasons not to impose it, and inability to pay is specifically singled out as not qualifying as a compelling and extraordinary reason to waive the fine. (Pen. Code, § 1202.4, subd. (c).)
   
   The amount of the fine varies in the trial court’s discretion, ranging from a minimum of $300 up to $10,000 for felony convictions, and $150 to $1,000 for misdemeanor convictions. The court may determine the amount of the fine by multiplying the minimum fine by the number of years of imprisonment to which the defendant is sentenced, and then by the number of convictions. (Pen. Code, § 1202.4, subd. (b).) In this calculation, the court is permitted to consider the defendant’s ability to pay. (Pen. Code, § 1202.4, subd. (c).)
   

Imposition of the restitution fine actual results in the automatic imposition of two fines. If a court grants a defendant probation, the court is required to impose and suspend a probation-revocation fine in the same amount as the restitution fine. This amount becomes due if the defendant’s probation is revoked. (Pen. Code, § 1202.44.) If the court sentences a defendant to county jail for a realigned felony and that sentence contains a period of mandatory supervision (See Pen. Code, § 1170, subd. (h)), then the court must impose and suspend a mandatory-supervision-revocation fine, which becomes due upon revocation of supervision. (Pen. Code, § 1202.45.) Likewise, when a defendant is sentenced to prison, the court is mandated to impose and suspend either a parole-revocation restitution fine or a PRCS-revocation restitution fine in the same amount as the restitution fine. This stayed fine becomes due if the person violates parole or PRCS. (Ibid.)

A restitution fine is not paid by the defendant directly to the victim. Instead, the fine is deposited in the Restitution Fund from which crime victims may obtain compensation. (Pen. Code, § 1202.4, subd. (e).)

1. Court Facilities and Court Operations Assessments: Government Code section 70373, and Penal Code section 1465.8 were both enacted as part of more comprehensive legislation intended to raise money for the courts at times of budget shortfalls. (See AB 1759 (Committee on Budget) Chapter 159, Statutes of 2003 [Pen. Code, § 1465.8]; SB 1407 (Perata) Chapter 311, Statutes of 2008.)
   
   Government Code section 70373, the court facilities assessment, requires the court to impose an assessment of $30 for each misdemeanor or felony conviction, $35 per infraction.
   
   Penal Code section 1465.8, the court operations assessment, also known as the court security fee, requires the court to impose an assessment of $40 on every conviction for a criminal offense.
   

Both assessments are mandatory; the court lacks discretion to either not impose them or to stay them under Penal Code section 654. In fact, if the court fails to impose them, the error may be corrected on appeal. (See People v. Woods (2010) 191 Cal.App.4th 269, 274; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327–1328; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5–7.)

Additionally, both assessments are to be imposed for each of defendant’s counts of conviction. (People v. Sencion (2012), 211 Cal.App.4th 480, 483-484; People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3 [court facilities assessment]; People v. Schoeb (2005), 132 Cal.App.4th 861, 865-866 [court security fee].) Because these charges are not considered punishment, they may be imposed even if the sentence on the counts to which they attach are stayed. (People v. Sencion, supra, 211 Cal.App.4th at p. 484.) Thus, while both charges may appear small on their face, they can quickly add up.

This bill allows the court to waive the fees due to a defendant’s inability to pay so as not to violate an indigent defendant’s due process rights.

1. Argument in Support: According to the California Public Defenders Association, “AB 227… serves to bring our criminal fine and assessment statutes into alignment with the state and federal constitutions. Indeed, in the recently published opinion in People v. Duenas (2019) 30 Cal.App.5th 1157, the Court of Appeal found that imposition of court fines and fees on a defendant without inquiring into the defendant’s ability to pay violated state and federal constitutional guarantees. (Id. at p. 270.) As the Duenas court put it: “Because the only reason [the defendant] cannot pay the fine and fees is her poverty, using the criminal process to collect a fine she cannot pay is unconstitutional.” (Ibid.) AB 227 will help ensure that people are not penalized specifically for being poor. “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.) AB 227 requires courts to take into account a defendant’s ability to pay the restitution fine and court assessments, and in doing so frees our system from one sanction on the impoverished.”
   
2. Argument in Opposition: According to the Southwest California Legislative Council, which is a coalition of members of some Chambers of Commerce, “[U]nder existing law, courts are already required to consider a defendant’s inability to pay restitution and court operations fines but it is not automatic and is not a compelling or extraordinary consideration. AB 53 [sic] is both unnecessary and an additional mandate prohibiting the court from due process consideration.”
   
3. Related Legislation: SB 144 (Mitchell) states intent to enact legislation to eliminate the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system, and to eliminate all outstanding debt incurred as a result of the administrative fees.
   
4. Prior Legislation:
   
   1. AB 898 (Alejo), Chapter 358, Statutes of 2011, increased the minimum restitution fine incrementally over a three year period from $200 to $300 for a felony conviction and from $100 to $150 for a misdemeanor conviction.
      
   2. SB 13 X4 (Ducheny), Chapter 22, Statutes of 2009, increased the court security fee from $20 to $30 on each criminal conviction.

REGISTERED SUPPORT / OPPOSITION:

Support

California Public Defenders Association

Opposition

Southwest California Legislative Council

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744

1. The suspended license was the result of the inability to pay over $1000 arising from three juvenile citations. (People v. Duenas, supra, 30 Cal.App.5th at p. 1161.) ↑

2. Amicus Curiae Los Angeles County Public Defender also argued that imposing a restitution fine without considering ability to pay also violates the prohibition on excessive fines. The Court of Appeal did not specifically address this claim, noting that the due process and excessive fines analysis are sufficiently similar that they reach the same result. (People v. Duenas, supra, 30 Cal.App.5th at 1171, fn. 8.) ↑