Deciding the oldest non-capital case on its docket, the Supreme Court in People v. Kopp today confronts a hodgepodge of payments that a court can impose on a criminal defendant and analyzes which can be ordered only after considering a defendant’s ability to pay.
The court’s opinion by Justice Carol Corrigan distinguishes between punitive fines on the one hand and ancillary costs (“funding mechanisms, created by the Legislature, to reimburse governmental agencies for expenditures or to otherwise fund a broad assortment of services”) on the other, because “different justifications support each, and different constitutional protections apply.”
Some punitive fine statutes require or allow a sentencing court to consider a defendant’s ability to pay, but the opinion does “not find a due process requirement to hold an ability to pay hearing before imposing every punitive fine.” (Emphasis added.) Rather, it’s the constitutional prohibition against excessive fines that “is the proper vehicle to challenge punitive fines” and it gives the defendant a chance on remand to make excessive-fines arguments. However, excessiveness seems to have little to do with the defendant’s ability to pay, because the opinion says, quoting a U.S. Supreme Court decision, “ ‘The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.’ ” (Emphasis added.) The court explains “a court may impose a nonexcessive fine as punishment,” but can’t “punish an indigent defendant solely for nonwillful failure to pay an otherwise properly-imposed fine.”
The court reviews two ancillary costs in particular, but more broadly holds, in agreement with both the defendant and the Attorney General, that, because there’s a “statutory scheme regarding civil fees [that] allows waivers of . . . ancillary costs by those unable to pay them,” there’s no “rational basis,” and thus it’s an equal protection violation, “for not granting criminal defendants a similar opportunity to avoid such costs before they are imposed.”
Besides resolving the issues before it, the court “urge[s] the Legislature to revisit issues surrounding court-ordered ancillary payments in criminal cases and address them in a more comprehensive manner.”
Justice Goodwin Liu, joined by Justice Kelli Evans, concurs to address additional issues: “(1) the constitutionality of Penal Code section 1202.4, subdivision (c), which prohibits consideration of a criminal defendant’s inability to pay in imposing the minimum $300 restitution fine” (“if [the defendant] contends that he is unable to pay the minimum restitution fine, the court must consider whether it is excessive before imposing it”); “(2) whether the imposition of fines and fees may violate due process or equal protection principles, particularly where the monetary order creates ‘cascading consequences’ that trap a defendant in debt” (it might); and “(3) how courts are to evaluate a criminal defendant’s ability to pay ancillary costs, including who bears the burden of proof in establishing an inability to pay and whether courts may consider future prison wages in that assessment” (“I would hold that criminal defendants may obtain automatic fee waivers based on the same criteria as civil litigants,” including that “[c]riminal defendants should be presumed indigent if they receive public benefits, their income is below the federal poverty level, or they are represented by the public defender”).
The pro tem, Second District, Division One, Court of Appeal Justice Frances Rothschild concurs and dissents. She disagrees with the majority, the Attorney General, and the defendant that equal protection principles require waiving ancillary costs for indigent criminal defendants.
The court reverses in part the 2-1 published opinion of the Fourth District, Division One. (Chief Justice Patricia Guerrero was recused from today’s decision because, while she was still on the Court of Appeal, she concurred in the Division One opinion.) It also disapproves the First District, Division Four, decision in People v. Cowan (2020) 47 Cal.App.5th 32; and the Second District, Division Seven, decisions in People v. Belloso (2019) 42 Cal.App.5th 647, People v. Castellano (2019) 33 Cal.App.5th 485, and People v. Dueñas (2019) 30 Cal.App.5th 1157.
Belloso and Cowan have been grant-and-holds for Kopp since March 2020 and June 2020, respectively. The court denied review in Castellano. The court denied a depublication request in Dueñas, but Justice Corrigan recorded a vote to grant review on the court’s own motion. (See here.)
Horvitz & Levy is co-counsel for amicus UC Irvine law school’s Consumer Law Clinic in Kopp.
