Filed 1/27/20 P. v. Mayo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DESHON MAYO, SR.,

Defendant and Appellant.

F077890

(Super. Ct. No. F18903544)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Glenda Allen-Hill, Judge.

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In June 2018, appellant Deshon Mayo, Sr. entered a plea of no contest to a charge of corporal injury to a domestic partner (Pen. Code, § 273.5, subd. (a); count 2). He was placed on formal probation for three years. As a condition of probation, he was precluded from using or possessing any alcoholic beverage. He was also prohibited from frequenting any place where the primary purpose is to engage in the sale or use of alcoholic beverages. He was required to complete a substance abuse evaluation and any recommended treatment, and to submit to alcohol testing as directed by probation.

The court imposed a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court operations assessment (§ 1465.8, subd. (a)(1)); a minimum restitution fine of $300 (§ 1202.4, subd. (b)(1); and a $300 probation revocation fine (§ 1202.44, which was stayed pending successful completion of probation). Prior to imposing the various fees, fines and assessments, the court did not assess if appellant had the ability to pay them.

Appellant contends that imposition of the assessments under section 1465.8 and Government Code section 70373, and the restitution fine under section 1202.4, subdivision (b)(1) violated his rights to due process, equal protection, and the prohibition against excessive fines. He relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164 (Dueñas). He also argues that the alcohol condition of probation must be stricken. He claims it has no relationship to his offense, it is not itself illegal, and it is not reasonably related to future criminality. We reject appellant’s assertions and affirm.

DISCUSSION

I. Appellant Has Forfeited His Claim Regarding The Alcohol Probation Condition; In Any Event, The Trial Court Did Not Abuse Its Discretion.

Appellant asserts that the alcohol condition of probation must be stricken. He relies primarily on the three-prong test outlined in People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded by statute as stated in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6 (Moran).

A. The standard of review.

The imposition of a condition of probation is reviewed for abuse of discretion. “That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.” (Moran, supra, 1 Cal.5th at p. 403.)

B. Analysis.

Respondent argues that appellant has forfeited this claim due to a failure to raise it below. Respondent also contends that the trial court did not abuse its discretion. We agree with both assertions.

1. Appellant has forfeited the present claim.

To preserve an appellate challenge under Lent to the reasonableness of a probation condition, a defendant must raise an objection in the lower court. (People v. Welch (1993) 5 Cal.4th 228, 237.) Here, when the trial court asked appellant if he understood the terms and conditions of probation, appellant said, “Yes. And I don’t like them.” The court said appellant could either accept probation or go to prison. The court asked if appellant wanted time to think about it. Appellant replied, “I don’t need to think about it. I don’t like it, though.” Appellant then said “Yes” when he was asked if he accepted the terms and conditions.

We reject appellant’s assertion that this exchange with the lower court preserved this claim for appellate review. To the contrary, an objection must fairly apprise a trial court of the issue and the court must understand the issue presented. (People v. Scott (1978) 21 Cal.3d 284, 290.) Appellant merely expressed frustration and he failed to explain why the disputed terms were improper. He did not give the trial court an opportunity to resolve a Lent-related challenge. Because appellant failed to raise a timely objection, he has forfeited this issue. (See People v. Welch, supra, 5 Cal.4th at p. 237.) In any event, we also determine that the court did not abuse its discretion.

2. The court did not abuse its discretion.

When a sentencing court chooses to grant probation, it has broad discretion to impose conditions to foster rehabilitation and to protect public safety. (§ 1203.1.) A condition of probation must serve a purpose specified in the statute, and conditions regulating noncriminal conduct must be reasonably related either to the crime which resulted in a conviction or to future criminality. (Moran, supra, 1 Cal.5th at p. 403.) Under the three-pronged test from Lent, a probation condition will not be invalidated unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. (Lent, supra, 15 Cal.3d at p. 486.) All three prongs must be satisfied before a reviewing court will invalidate a probation term. (People v. Olguin (2008) 45 Cal.4th 375, 379–380.)

Our Supreme Court has approved the practice of basing probation conditions upon information appearing in a probation report. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1122.) In this matter, the probation report amply supports the trial court’s determination to impose a probation condition regarding alcohol.

According to the probation report, the victim in this matter informed police that she and appellant “had been drinking alcohol” before he attacked her in her home in 2018. Moreover, in 2016, appellant was convicted of misdemeanor driving under the influence (DUI) of alcohol (Veh. Code, § 23152, subd. (b)). This DUI occurred in 2015.

The information appearing in the probation report reasonably establishes that alcohol played a factor in appellant’s current conviction for corporal injury of a domestic partner (§ 273.5, subd. (a); count 2). In addition, appellant had suffered a relatively recent DUI conviction. Thus, alcohol had a relationship to the present crime, and the probation condition regarding alcohol appears reasonably related to future criminality. (See Lent, supra, 15 Cal.3d at p. 486.)

Appellant cites two opinions as examples when similar probation conditions were found invalid. First, in People v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo), disapproved on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237, the defendant pleaded guilty to possession of methamphetamine. (Kiddoo, at p. 925.) As part of his terms and conditions of probation, the defendant was ordered not to possess or consume alcoholic beverages, or to frequent places where such beverages are the chief item of sale. (Id. at p. 924.) The Kiddoo court struck this condition. Although the probation report stated that the defendant was a “social drinker,” his prior convictions did not involve alcohol. Nothing in the record indicated that this condition was reasonably related to future criminal behavior. (Kiddoo, supra, 225 Cal.App.3d at pp. 927–928.)

Second, in People v. Burton (1981) 117 Cal.App.3d 382 (Burton), the defendant was convicted of assault with a deadly weapon. (Id. at p. 385.) The appellate court concluded that the record was “completely devoid of any evidence” that alcohol had played a role in the conviction. In addition, the defendant had never been convicted of an alcohol-related offense. (Id. at p. 390.)

Kiddoo and Burton are distinguishable. The probation report in this matter reasonably establishes that alcohol played a factor in appellant’s current conviction. In addition, the alcohol condition appears reasonably related to future criminality. (See Lent, supra, 15 Cal.3d at p. 486.) Neither Kiddoo nor Burton establish an abuse of discretion or dictate reversal.

Based on this record, we will not disturb the trial court’s decision regarding this probation condition because it does not appear arbitrary, capricious or wholly unreasonable. (See Moran, supra, 1 Cal.5th at p. 403.) Accordingly, the court did not abuse its discretion and this claim fails.

II. Dueñas Is Distinguishable From The Present Matter And The Trial Court Did Not Violate Appellant’s Constitutional Rights.

Appellant asks this court to stay the assessments under section 1465.8 and Government Code section 70373, and to stay the restitution fine pursuant to section 1202.4, subdivision (b)(1). He requests a remand to the trial court for an ability to pay hearing. He argues he has no “apparent ability” to pay these assessments. His claims originate primarily from Dueñas, supra, 30 Cal.App.5th 1157.

In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. She had dropped out of high school because of her illness, and she was unemployed. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–1161.) As a teenager, the defendant’s driver’s license was suspended when she could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. (Ibid.) She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. (Ibid.)

After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. The court imposed a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)); a $40 court operations assessment (§ 1465.8, subd. (a)(1)); and a minimum $150 restitution fine (§ 1202.4, subd. (b)(1)). The court also imposed and stayed a probation revocation restitution fine (§ 1202.44). (Dueñas, supra, 30 Cal.App.5th at pp. 1161–1162.) The defendant challenged the fees and fines imposed under Penal Code sections 1202.4 and 1465.8, and Government Code section 70373. (Dueñas, at p. 1164.) The trial court rejected her constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments. (Id. at p. 1163.) On appeal, however, the Dueñas court determined that the defendant’s due process rights had been infringed. According to Dueñas, an ability to pay hearing was required so the defendant’s “present ability to pay” could be determined before assessments were levied for a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). (Dueñas, at p. 1164.) The Dueñas court also concluded that the minimum restitution fine of $150 (§ 1202.4, subd. (b)(1)) had to be stayed. The appellate court reached that conclusion despite section 1202.4 barring consideration of a defendant’s ability to pay unless the judge is considering a fine over the statutory minimum. (§ 1202.4, subd. (c).) Dueñas held that “execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Dueñas, at p. 1164.)

We find appellant’s reliance on Dueñas unavailing. It is distinguishable from the present matter. In any event, even if Dueñas applies, appellant’s constitutional rights were not violated.

A. Dueñas is distinguishable from the present matter.

According to the Dueñas court, the defendant lost her driver’s license because she was too poor to pay her juvenile citations. She continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as “cascading consequences” stemming from “a series of criminal proceedings driven by, and contributing to, [the defendant’s] poverty.” (Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.)

In contrast to Dueñas, appellant was placed on formal probation after he pleaded no contest to a charge of corporal injury to a domestic partner (§ 273.5, subd. (a)). Appellant’s present conviction was not a consequence of prior criminal assessments and fines. Appellant was not caught in an unfair cycle of incarceration, and he could have avoided the present conviction regardless of his financial circumstances. Dueñas is distinguishable and it has no application in this matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928–929 [declining to apply Dueñas’s “broad holding” beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138 [“Dueñas is distinguishable.”].)

B. The court did not violate appellant’s constitutional rights.

Even if Dueñas is applicable here, we reject any argument that the trial court violated appellant’s constitutional rights. The Dueñas defendant presented compelling evidence that the imposed assessments resulted in ongoing unintended punitive consequences against her. The Dueñas court determined that these unintended consequences were “fundamentally unfair” for an indigent defendant under principles of due process. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The Dueñas court noted that the imposed financial obligations were also potentially unconstitutional under the excessive fines clause of the Eighth Amendment. However, Dueñas stated that “[t]he due process and excessive fines analyses are sufficiently similar that the California Supreme Court has observed that ‘[i]t makes no difference whether we examine the issue as an excessive fine or a violation of due process.’ [Citation.]” (Dueñas, supra, at p. 1171, fn. 8.)

Both People v. Hicks (2019) 40 Cal.App.5th 320, review granted September 14, 2019, S258946 (Hicks) and this court’s opinion in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles) have strongly criticized Dueñas’s analysis. (Hicks, supra, 40 Cal.App.5th at p. 322, review granted; Aviles, supra, 39 Cal.App.5th at pp. 1059–1060.) We agree with those criticisms. (See also People v. Kingston (2019) 41 Cal.App.5th 272, 279 [finding Hicks to be “better reasoned” than Dueñas]; People v. Caceres, supra, 39 Cal.App.5th at p. 928 [“In light of our concerns with the due process analysis in Dueñas, we decline to apply its broad holding requiring trial courts in all cases to determine a defendant’s ability to pay before imposing court assessments or restitution fines.”].)

This court in Aviles held that, in contrast to a due process challenge, the “ ‘excessive fines’ ” clause in the Eighth Amendment to the United States Constitution was a more appropriate avenue for an indigent defendant to challenge the imposition of fees, fines and assessments. (Aviles, supra, 39 Cal.App.5th at p. 1069.) Under its facts, Aviles found no constitutional violation for the imposition of assessments and fines imposed on a felon who, after fleeing from officers, shot and wounded two of them. (Id. at pp. 1059–1060.) Aviles also concluded that any presumed error was harmless because the felon had the ability to earn money while in prison. (Id. at pp. 1075–1077.)

The Hicks court held that, in contrast to Dueñas’s application of due process, a due process violation must be based on a fundamental right, such as denying a defendant access to the courts or incarcerating an indigent defendant for nonpayment. Hicks concluded that Dueñas’s analysis was flawed because it expanded due process in a manner that grants criminal defendants a right not conferred by precedent; that is, an ability to pay hearing before assessments are imposed. (Hicks, supra, 40 Cal.App.5th at pp. 325–326, review granted.) Under its facts, Hicks rejected a due process challenge to the imposition of fines and assessments on a felon who, while under the influence of a stimulant, resisted arrest. (Id. at pp. 323, 329–330.)

1. Appellant’s due process rights were not violated.

In this matter, the fees, fines and assessments imposed against appellant do not implicate the traditional concerns of fundamental fairness. Appellant was not denied access to the courts or prohibited from presenting a defense. (See Griffin v. Illinois (1956) 351 U.S. 12, 18–20 [due process and equal protection require a state to provide criminal defendants with a free transcript for use on appeal]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.) Appellant was not incarcerated because he was unable to pay prior fees, fines or assessments. (See Bearden v. Georgia (1983) 461 U.S. 660, 672–673 (Bearden) [fundamental fairness is violated if a state does not consider alternatives to imprisonment if a probationer in good faith cannot pay a fine or restitution]; People v. Kingston, supra, 41 Cal.App.5th at p. 281; Hicks, supra, 40 Cal.App.5th at p. 326, review granted.)

The unique concerns addressed in Dueñas are lacking here. Nothing establishes or even reasonably suggests that appellant faces ongoing unintended punitive consequences.

Appellant does not establish how he suffered a violation of a fundamental liberty interest. Because unintended consequences are not present, it was not fundamentally unfair for the court to impose the fees, fines and assessments in this matter without first determining appellant’s ability to pay. As such, the trial court did not violate appellant’s due process rights, and this claim fails. (See People v. Kingston, supra, 41 Cal.App.5th at p. 282; Hicks, supra, 40 Cal.App.5th at p. 329, review granted.)

2. The restitution fine was not grossly disproportionate under the Eighth Amendment.

Appellant contends that the $300 restitution fine (§ 1202.4, subd. (b)(1)) violated the Eighth Amendment’s prohibition against excessive fines. We disagree.

“The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” (United States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) “The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: ‘(1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay. [Citations.]’ [Citations.]” (Aviles, supra, 39 Cal.App.5th at p. 1070.) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337–338.)

According to Bajakajian, two considerations are particularly relevant in deriving a constitutional excessiveness standard. First, “judgments about the appropriate punishment for an offense belong in the first instance to the legislature.” (Bajakajian, supra, 524 U.S. at p. 336.) Second, “any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents.” (Ibid.)

Here, at the change of plea hearing, the parties stipulated that the crime reports in this matter provided a factual basis for appellant’s plea. As summarized in the report from probation, appellant pushed the victim onto a couch after becoming verbally abusive towards her. He began to choke her with his hands on her neck. The victim did not lose consciousness. When she complained that she could not breathe, he stated, “Be quiet. Stop crying.” Appellant put two of his fingers in the victim’s eye sockets and pushed her eyes in forcefully towards the back of her head. The victim believed he was trying to gouge her eyes out. When he stopped, the victim attempted to leave the apartment, but appellant blocked the door with his body. The victim complained that she could not breathe, but he continued to block the door. Appellant eventually went out to the patio, and the victim went to a friend’s residence, where she called the police. Officers found redness to the victim’s upper right arm, redness and swelling near her right eyelid, and she was complaining of soreness to her eyes, neck and knees. The victim, however, declined medical treatment.

We must give deference to the Legislature’s determination regarding the appropriate punishment. (Bajakajian, supra, 524 U.S. at p. 336.) When the relevant factors are examined, it is abundantly clear that the $300 minimum restitution fine imposed against appellant was not “grossly disproportional” under these circumstances. (Id. at p. 334; see also Aviles, supra, 39 Cal.App.5th at p. 1072; People v. Gutierrez, supra, 35 Cal.App.5th at pp. 1040–1041 (conc. opn. of Benke, Acting P.J.).) As such, we reject appellant’s assertions that the excessive fines clause of the Eighth Amendment was violated.

3. The restitution fine did not violate appellant’s rights to equal protection under the law.

Appellant contends that imposition of the restitution fine under section 1202.4, subdivision (b)(1), violated his rights to equal protection. He points to Dueñas, which stated an indigent probationer is treated differently from a wealthy defendant. A defendant who has successfully fulfilled the conditions of probation for the entire period of probation has a statutory right to have the charges against him or her dismissed under section 1203.4, subdivision (a)(1). “But if a probationer cannot afford the mandatory restitution fine, through no fault of his or her own he or she is categorically barred from earning the right to have his or her charges dropped and to relief from the penalties and disabilities of the offense for which he or she has been on probation, no matter how completely he or she complies with every other condition of his or her probation. Instead, the indigent probationer must appeal to the discretion of the trial court and must persuade the court that dismissal of the charges and relief from the penalties of the offense is in the interest of justice. [Citation.]” (Dueñas, supra, 30 Cal.App.5th at pp. 1170–1171.)

Appellant asserts there is “no meaningful difference” between a denial of access to the criminal justice system (as what occurred in Griffin v. Illinois, supra, 351 U.S. 12, when the state required a criminal defendant to pay for a transcript for an appeal) and being denied the ability to have all his penalties and disabilities released under section 1203.4, subdivision (a)(1), following successful completion of probation. He quotes from People v. Neal (2018) 29 Cal.App.5th 820 (Neal) to show how a criminal restitution fine can work “infirmities” on him.

In Neal, the defendant was convicted of possession of a firearm by an ex-felon. (Neal, supra, 29 Cal.App.5th at p. 821.) Based on a recommendation from probation, the court imposed a probation supervision fee of $75 per month. The defendant objected, asserting he was disabled and his wife was the only one who worked. They supported two children and they were in danger of foreclosure. The trial court, however, responded that the probation officer was responsible for this determination. The court declined to “weigh in” on the defendant’s financial situation. (Id. at pp. 824–825.) On appeal, the Neal court found several problems, including that the trial court, and not the probation officer, should have made the final determination regarding the defendant’s ability to pay the probation costs under section 1203.1b, subdivision (a). (Neal, at pp. 825–826.) The Neal court commented that an “unjustified imposition of probation services fees” and other “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.” (Id. at p. 827.) The appellate court noted that “ ‘[a]ggressive 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.’ [Citations.]” (Ibid.)

We find appellant’s equal protection claim unpersuasive. We have already concluded that Dueñas is distinguishable from the present matter and we will not apply it here. In any event, Dueñas based its holding on due process grounds, and not on equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1168, fn. 4.) Further, Neal did not involve an equal protection challenge. Cases are not authority for propositions not considered or decided. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134.)

To resolve the equal protection challenge, four opinions are instructive. First, in Williams v. Illinois (1970) 399 U.S. 235 (Williams), the United States Supreme Court invalidated on equal protection grounds a facially neutral statute that authorized imprisonment for an indigent’s failure to pay fines. (Id. at pp. 241–242.)

Second, in Tate v. Short (1971) 401 U.S. 395 (Tate), the United States Supreme Court expanded upon Williams. The Tate court held that equal protection was violated when an indigent defendant was committed to a “municipal prison farm” because he could not pay accumulated fines of $425 based on nine convictions for traffic offenses. (Tate, at pp. 396–397.) The high court noted that the defendant “was subjected to imprisonment solely because of his indigency.” (Id. at p. 398.) Important to the issue before us, the Tate court commented that a state has a “valid interest in enforcing payment of fines.” (Id. at p. 399.) According to Tate, a state “is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.” (Ibid.) The high court stated that “ ‘numerous alternatives’ ” existed for a state to avoid “imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs.” (Ibid.) However, those alternatives were left for the states to explore. (Id. at p. 400.)

Third, in In re Antazo (1970) 3 Cal.3d 100, the California Supreme Court held that an indigent defendant could not be imprisoned for failure to pay a fine. Otherwise a violation of equal protection would occur based on wealth. (Id. at pp. 103–104.) Importantly, our high court stated that imposing a fine and penalty assessment on an indigent offender did not by itself necessarily constitute a violation of equal protection. Apart from imprisonment, alternatives exist that could permit an indigent offender to be fined. (Id. at p. 116.)

Finally, in Bearden, supra, 461 U.S. 660, the United States Supreme Court held that a court may not revoke probation for an indigent defendant’s inability to pay a fine and restitution, absent evidence and findings that the defendant was responsible for the failure or that alternative forms of punishment were inadequate. Otherwise, the “deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.” (Id. at pp. 672–673.) The high court, however, reiterated that a state is not powerless to enforce judgments against those financially unable to pay a fine. (Id. at pp. 671–672.) Bearden also noted that, when a defendant’s indigency is involved, due process provides a better analytic framework than equal protection because “a defendant’s level of financial resources is a point on a spectrum rather than a classification.” (Id. at p. 666, fn. 8.) In the same footnote, Bearden stated that “[t]he more appropriate question is whether consideration of a defendant’s financial background in setting or resetting a sentence is so arbitrary or unfair as to be a denial of due process.” (Ibid.)

In both Williams and Tate, the United States Supreme Court strongly suggested that the imposition of a fine on an indigent defendant did not by itself violate equal protection. In In re Antazo, our high court made it clear that a court may impose a fine or penalty on an indigent offender so long as the state offers alternatives to imprisonment for purposes of repayment. (In re Antazo, supra, 3 Cal.3d at p. 116.) The Bearden court cautioned that a due process approach, and not equal protection, is more appropriate when “confronting the intertwined question of the role that a defendant’s financial background can play in determining an appropriate sentence.” (Bearden, supra, 461 U.S. at p. 666, fn. 8.)

In light of Williams, Tate, In re Antazo and Bearden, it is clear that equal protection was not violated when the court imposed the restitution fine in this matter. Appellant was not incarcerated because of his alleged poverty. He does not articulate how a fundamental liberty interest was implicated. Thus, the trial court was permitted to impose a fine or penalty on him so long as alternatives to imprisonment are offered for purposes of repayment. (In re Antazo, supra, 3 Cal.3d at p. 116.)

Based on this record, the trial court did not violate appellant’s constitutional rights when it imposed the disputed fees, fines and assessments without determining appellant’s ability to pay them. Accordingly, appellant’s arguments are without merit, and this claim fails.

DISPOSITION

The judgment is affirmed.