by Jacob Barrett

On January 11, 2022, the California Court of Appeals rejected the plea of a state prisoner who argued he was charged $3,210 in fines and fees without considering his ability to pay, saying his $12 monthly prison wage will be sufficient to eventually satisfy the debt.

In reaching its decision, the Court rejected the appeal of the prisoner, James Simon, that a trial court violated his state and federal due process rights by imposing the fines and fees without holding an ability-to-pay hearing.

Following his prosecution for second-degree robbery, assault with a firearm and being a felon in possession of a firearm, a jury convicted Simon, and he was sentenced to 35-years-to-life in prison. During sentencing, the trial court indicated it had reviewed Simon’s probation report and found he “does not have the present ability to pay for appointed counsel fees” for his attorney, Aaron Joseph Schechter of New York, “nor for the cost of conducting the presentence investigation report.”

But without any additional findings on his ability to pay, the court ordered Simon to pay other fines and fees totaling $3,210, including “a court operations fee of $120 ($40 per count),” as well as a “court construction fee of $90 ($30 per count)” and a $3,000 “restitution fine.” A “parole revocation restitution fine” of $3,000 was stayed.

On appeal, Simon relied on People v. Dueñas, 30 Cal. App. 5th 1157 (2019), which held that defendants have a due process right under the federal and state Constitutions to a hearing on their ability to pay court operations and facilities fees. In addition, “to avoid serious constitutional questions” raised by statutory restitution schemes, those fines must be stayed “until and unless the People demonstrate that the defendant has the ability to pay.”

But the same court which decided that case later clarified that, at the ability-to-pay hearing, defendants bear the burden of showing their inability to pay, and the court “must consider all relevant factors,” including “potential prison pay during the period of incarceration to be served by the defendant.” See: People v. Castellano, 33 Cal.App.5th 485 (2019).

For its part, the State argued that Simon forfeited his objections to the fines and fees under Dueñas by not raising them in the trial court. Simon countered that if he forfeited the issue, his attorney’s failure to object constituted ineffective assistance of counsel.

The Court of Appeals dispensed with both, saying: “We need not decide the issues of forfeiture, [ineffective assistance of counsel], or Dueñas error because, even assuming there was Dueñas error, the error was harmless beyond a reasonable doubt because the record shows defendant had the ability to pay from prison wages the court-ordered fines and fees totaling $3, 210.”

And how did the Court determine that?

“Defendant was sentenced to a term of 35 years to life,” at age 40, the Court recalled, so it could consider Simon’s “potential prison wages in evaluating the prejudicial effect of alleged Dueñas error.” It looked to a similar case, People v. Jones, 36 Cal. App. 5th 1028 (2019), which held that “[n]o harm resulted” from imposing “fees and victim restitution” under state law “without a hearing on ability to pay because defendant would have sufficient time to earn that amount during his six-year prison sentence, even assuming he earned nothing more than the minimum of $12/month.”

Here, the Court said, Simon’s $12 monthly minimum prison wage means he “will be able to pay off his $3,210 in fines and fees in less than 25 years,” and given his “age, the length of his sentence, and his employment history, we are persuaded beyond a reasonable doubt that he has the ability to pay the fines and fees imposed.” See: People v. Simon, 2022 Cal. App. Unpub. LEXIS 152.

Though the Court cited 15 California Code of Regulations § 3097(f), it apparently didn’t follow its math, since that law subjects prison wages to a maximum deduction of 50% to satisfy “any obligation pursuant to a restitution fine imposed by a court”—meaning if Simon earns $12 monthly, he’ll need almost 42 years to pay the amount he owes in restitution, not counting the remaining $210 in other fees.

So if he is still incarcerated at age 82, perhaps then he can finally look forward to getting by on more than 20 cents a day.

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