DISCUSSION

I The Dueñas Challenge Defendant challenges imposition of $120 in conviction assessment fees (Gov. Code, § 70373) and $160 in court operations assessment fees (§ 1465.8) and requests we vacate these amounts in light of Dueñas, supra, 30 Cal.App.5th 1157. We disagree with Dueñas and reject defendant’s challenge. The Dueñas court held that due process prohibits a trial court from imposing court assessments under section 1465.8 and Government Code section 70373, and requires the trial court to stay execution of any restitution fines unless it ascertains by hearing the defendant’s ability to pay those assessments and fines. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) To support this conclusion, Dueñas relied on two lines of due process precedent. First, it cited authorities addressing access to courts and waiving court costs for indigent civil litigants. Second, it relied on due process and equal protection authorities that prohibit incarceration based on a defendant’s indigence and inability to pay a fine or fee. (Id. at pp. 1165-1166, 1168.) The court also concluded that imposing costs on indigent defendants “blamelessly” unable to pay them transformed a “funding mechanism for the courts into additional punishment.” (Id. at p. 1168.) People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946 rejected the reasoning of Dueñas, under both lines of due process authority. Hicks observed that imposition of fees after a determination of guilt does not deny a criminal defendant’s access to the courts and does not interfere with a defendant’s right to present a defense or challenge a trial court’s rulings on appeal. (Id. at p. 326.) Further,

3 imposition of fees, without more, does not result in incarceration for nonpayment of fines and fees due to indigence; thus, it does not infringe on a fundamental liberty interest. (Ibid.) We find the reasoning in Hicks sounder and more persuasive than Dueñas. Accordingly, defendant has not demonstrated the imposition of the complained of fees has violated his constitutional rights. II The Restitution Fines Defendant requests that we strike both the $300 restitution and a $300 parole revocation restitution fines reflected in the minute order and on the abstract of judgment, but not orally imposed by the court at sentencing. Section 1202.4, subdivision (b), requires that “[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.” If defendant has committed a felony, this fine shall be between $300 and $10,000. (§ 1202.4, subd. (b)(1).) Likewise, in every case where there is a period of parole, the court must impose and suspend a corresponding parole revocation restitution fine (§ 1202.45, subd. (a)). (People v. Smith (2001) 24 Cal.4th 849, 851.)

Here, the trial court did not perform this mandatory duty. Accordingly, we will remand the matter to allow the trial court to exercise its discretion.

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DISPOSITION

The matter is remanded so that the trial court may impose a restitution fine (§ 1202.4) and a corresponding suspended parole revocation restitution fine (§ 1202.45). The judgment is otherwise affirmed.

/s/

HOCH, J.

We concur:

/s/ DUARTE, Acting P. J.

/s/

KRAUSE, J.

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