Criminal Conviction Assessment Fee and Court Operations Assessment Fee
Defendant contends the mandatory $30 criminal conviction assessment fee (Gov. Code, § 70373)
and $40 court operations assessment fee (§ 1465.8) must be stricken under Dueñas, supra, 30
Cal.App.5th 1157, because he does not have the ability to pay the fees. Defendant asserts that he
does not have the ability to pay the $70 fees because the fees cannot be paid until he has paid the
$10,000 restitution fine.
In Rodriguez, supra, 34 Cal.App.5th 641, the court explained that the "defendant's $300
restitution fine must be paid first. (§ 1203.1d [payments allocated to restitution fine before
reimbursement orders].) The California Department of Corrections and Rehabilitation (CDCR)
will collect direct victim restitution and the restitution fine by deducting up to 50 percent of
defendant's trust account deposits, including any prison wages he may earn. (§ 2085.5, subds.
(a)-(d); Cal. Code Regs., tit. 15, § 3097, subds. (f)-(g); Code Civ. Proc., § 704.090 [exempting
$300 in inmate trust account funds from restitution fines and $1,225 from other money
judgments]; but see In re Betts (1998) 62 Cal.App.4th 821 [Code Civ. Proc., § 704.090 does not
apply to inmate wages or trust account deposits].)" (Rodriguez, supra, 34 Cal.App.5th at p. 649.)
In addition, "[b]efore crediting a payment to defendant's court-ordered debts, CDCR will deduct
a 10 percent administrative fee. (Cal. Code Regs., tit. 15 § 3097, subd. (c); see §§ 1202.4, subd.
(1) [authorizing fee up to 10 percent of the restitution fine to cover actual administrative costs],
2085.5 [same].)" (Rodriguez, supra, at p. 649.)
In Dueñas, supra, 30 Cal.App.5th at page 1164, the court concluded that "due process of law
requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present
ability to pay before it imposes court facilities and court operations assessments under Penal
Code section 1465.8 and Government Code section 70373." In accordance with Dueñas, here,
the trial court considered defendant's ability to pay the restitution fine and permitted him to
demonstrate he was unable to pay the fine. The trial court reasonably found defendant had not
shown he was unable to pay the restitution fine. Although defendant did not argue he could not
pay the $70 in fees, it is not reasonably probable that the outcome would have been any different
as to the relatively minimal amount of fees in light of the ability-to-pay hearing on the $10,000
restitution fine. Even if the trial court erred under Dueñas in not separately addressing
defendant's ability to pay the $70 fees, such error, if any, was harmless and does not require
remand for a separate hearing on the matter.
E. Probation Report Fee and Booking Fee
Defendant contends the trial court abused its discretion in imposing the probation report fee, not
to exceed $1,095 (§ 12031b) and $514.58 booking fee (Gov. Code, § 29550.2), because the
record demonstrated defendant lacked ability to pay the fees. Defendant argues he established he
could not pay any of the fines, fees, or assessments. He asserts he told the trial court during
sentencing that he did not have any money to pay them, noting that the trial court had determined
he was indigent at the time of arraignment, and he had no opportunity to earn any income
thereafter because he had remained in custody up until the time of sentencing. Defendant also
argues the sentencing probation report did not disclose he had any significant assets at the time
of his arrest.
As defendant notes, unlike the restitution fine, the burden was not on defendant to prove ability
to pay the probation report and booking fees. With regard to the probation report fee, section
1203.1b, subdivision (b) provides in relevant part that "[t]he court shall order the defendant to
pay the reasonable costs if it determines that the defendant has the ability to pay those costs
based on the report of the probation officer." (Italics added.) In determining whether a defendant
has the ability to pay the probation report fee, "the court shall take into account the amount of
any fine imposed upon the defendant and any amount the defendant has been ordered to pay in
restitution." (§ 1203.1b, subd. (b)(3).)
Section 1203.1b, subdivision (e) provides that the term "'ability to pay'" means the overall
capability of the defendant to reimburse the costs, or a portion of the costs . . . and shall include,
but shall not be limited to, the defendant's: [¶] (1) Present financial position. [¶] (2) Reasonably
discernible future financial position. In no event shall the court consider a period of more than
one year from the date of the hearing for purposes of determining reasonably discernible future
financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment
within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that
may bear upon the defendant's financial capability to reimburse the county for the costs."
With regard to booking fees, Government Code section 29550.2, subdivision (a), provides that,
"'If the person has the ability to pay, a judgment of conviction shall contain an order for payment
of' the booking fee. . . . 'When the language of a statute is clear, we need go no further.'
[Citation.] Here, the language is clear . . . . Consequently, defendant had the right to a
determination of his ability to pay the booking fee before the court ordered payment." (People v.
McCullough (2013) 56 Cal.4th 589, 592-593.)
"Government Code section 29550.2 places on the People the burden of proving a defendant's
ability to pay a booking fee. Because the fee is not 'punishment' for constitutional purposes
[citation], the People's burden of proof is by preponderance of evidence [citations]. But a
defendant who does nothing to put at issue the propriety of imposition of a booking fee forfeits
the right to challenge the sufficiency of the evidence to support imposition of the booking fee on
appeal, in the same way that a defendant who goes to trial forfeits his challenge to the propriety
of venue by not timely challenging it." (People v. McCullough, supra, 56 Cal.4th at p. 598.)
"[T]he Legislature considers the financial burden of the booking fee to be de minimis and has
interposed no procedural safeguards or guidelines for its imposition." (Id. at p. 599.)
In the instant case, the trial court did not make express findings that defendant had the ability to
pay the probation report and booking fees. However, such a finding could be reasonably inferred
from the trial court's comments and finding of defendant's ability to pay the restitution fine.
Defendant was permitted to present evidence refuting a finding of ability to pay the $10,000
restitution fine, and failed to do so. The People's burden to demonstrate defendant's ability to pay
the booking fee and probation report fee was met by submitting the probation report, which
provided sufficient facts demonstrating defendant had the ability to pay the restitution fine and
other court imposed fees and assessments, including the probation report and booking fees.
The probation report indicated that defendant's future financial position and earnings during the
year after the sentencing hearing, would likely be minimal. Under section 12.03.1b, subdivision
(e), the court was not permitted to consider defendant's prison earnings during his 39 year prison
term, other than his earnings within a year after sentencing. However, as discussed regarding
defendant's ability to pay the restitution fine, the probation report demonstrated a high likelihood
defendant has assets which could be used to pay the fines and fees. According to the uncontested
probation report, defendant had been continuously employed from January 2017, up until his
arrest, he had $2,750 in monthly discretionary income; and he had recently purchased a new
truck. We therefore conclude the trial court reasonably found that defendant had the ability to
pay the probation report and booking fees, and thus did not abuse its discretion in ordering the
fees.
VI.
DISPOSITION
The judgment is modified to strike defendant's four section 667.5, subdivision (b) prior prison
term enhancements. The judgment is otherwise affirmed. The trial court is directed to prepare an
amended abstract of judgment and forward a certified copy to the Department of Corrections and
Rehabilitation.
