Does a criminal restitution fine survive a rational basis review?

We agree with respondent that a criminal restitution fine, which does not impact a fundamental right, survives rational basis review. A rational basis test is used to evaluate a substantive due process challenge to a law that does not impinge upon fundamental rights. (Perkey v. Department of Motor Vehicles (1986) 42 Cal.3d 185, 189.) Under this standard, a law does not violate due process if its enactment is procedurally fair and reasonably related to a proper legislative goal. (Ibid.) In this matter, the state has a legitimate goal in punishing criminal behavior. Thus, a restitution fine survives a rational basis test.

Finally, respondent notes that it does not seek to uphold imposition of nonpunitive assessments¹⁰ on those who cannot pay. Respondent takes the position that due process is implicated when nonpunitive assessments are imposed on indigent defendants, but respondent asserts that any violation in this matter was harmless beyond a reasonable doubt. We need not address in depth respondent's comments about the nonpunitive assessments. Instead, a constitutional violation did not occur. The nonpunitive assessments imposed against appellant are not analogous to the imposition of court reporter fees on an indigent defendant. (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].) 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 [fundamental fairness is violated if a state does not consider alternatives to

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imprisonment if a probationer in good faith cannot pay a fine or restitution].) The imposition of the nonpunitive assessments in this matter did not deny appellant access to the courts, it did not prohibit him from presenting a defense, and it did not prevent him from pursuing these appellate claims. The defendant in Dueas presented compelling evidence that the imposed assessments had resulted in ongoing unintended punitive consequences. In contrast, although appellant might suffer any number of future unintended consequences, mere speculation does not establish a present constitutional infirmity. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [hypothetical situations are insufficient to establish a statute is facially unconstitutional].)