FINES, FEES, AND ASSESSMENTS
Defendant contends the trial court abused its discretion in imposing various fines, fees, and
assessments, including a $10,000 restitution fine, $30 criminal conviction assessment fee, $40
court operations assessment fee, presentence probation report fee, not to exceed $1,095, and
booking fee of $514.58. Defendant argues they were improper because he does not have the
ability to pay them.
A. Procedural Background
During defendant's sentencing hearing on January 11, 2019, the court stated it had received and
considered the probation officer's sentencing recommendation report filed on November 30,
2016. The court said it intended to follow the probation officer's recommendations. Defendant,
who represented himself in propria persona, asserted in response that his 1984, 35 year-old
robbery conviction prior should be stricken because there was no "Tahl" waiver showing he
intelligently pled to the crime. Defendant also objected to his 1999 robbery prior because the
information alleged larceny, not robbery, and he did not knowingly and intelligently plead to that
prison prior crime.
Under In re Tahl (1969) 1 Cal.3d 122, 132, each of the three constitutional rights- "self-
incrimination, confrontation, and jury trial-must be specifically and expressly enumerated for the
benefit of and waived by the accused prior to acceptance of his guilty plea." (People v. Allen
(1999) 21 Cal.4th 424, 427, 435.)
Defendant mentioned he had a couple of prior felony convictions that should be reduced to
misdemeanors under Proposition 47. The prosecutor noted that some of defendant's felony priors
had already been reduced to misdemeanors and the court therefore had found they did not qualify
as prior enhancements. The other priors required the filing of a petition. As to those, the trial
court in the instant case stated defendant's request to reduce the felony priors to misdemeanors
was not properly before the court.
The court denied defendant probation and imposed a 14-year determinate prison term, which
included five years for each of defendant's two serious priors (§ 667, subd. (a)) and one year for
each of the other four priors (§ 667.5, subd. (b)). The court further sentenced defendant to an
indeterminate term of 25 years to life for his robbery conviction. The court ordered defendant to
pay the cost of the presentence probation report, with the probation department to determine the
amount, not to exceed $1,095. Defendant was further ordered to pay a booking fee of $514. In
addition, the court ordered defendant to pay a $10,000 restitution fine; a stayed $10,000 parole
revocation restitution fine; a $30 criminal conviction assessment fee; and a $40 court operations
assessment fee.
In response to the sentencing order, defendant stated that the trial court had previously declared
that he was indigent. He further told the court he did not have the ability to pay $10,000 in
restitution. The court responded that, if he wanted to contest the fine, he needed to present the
court with evidence. In response, defendant again said he had been declared an indigent by the
court. The court said, "that was then; this is now." Defendant replied, "I still don't have any
money." The court again told defendant he would need to present the court with evidence of that
fact, which the court said it would be happy to consider. Defendant did not present or offer to
present any evidence of inability to pay, or request a continuance for an additional hearing to
present such evidence. As a consequence, the fines, fees, and assessments were ordered as
initially stated by the court.
B. Forfeiture
The People argue defendant forfeited his ability-to-pay objections to the $30 criminal conviction
assessment fee, $40 court operations assessment fee, presentence probation report fee, and
booking fee of $514. We conclude there was no forfeiture of any of defendant's objections to the
fines, fees, and assessments because defendant told the court he objected to the maximum
$10,000 restitution fine. The court rejected defendant's objection to the restitution fine, stating
defendant had not met his burden of providing evidence of his inability to pay the fine.
It would have been reasonable for defendant to conclude that objecting to the other subsequently
imposed fines and fees was futile, based on the court's ruling that defendant had failed to prove
inability to pay the $10,000 restitution fine. Therefore, defendant did not forfeit his objections on
appeal to the other fines and fees. In addition, it can be reasonably concluded, based on the trial
court's treatment of defendant's objection to the restitution fine, that any other subsequent
objections based on inability to pay would have been rejected. (People v. Noguera (1992) 4
Cal.4th 599, 638; People v. Arias (1996) 13 Cal.4th 92, 159-160.)
C. Restitution Fine
Defendant contends the trial court abused its discretion in imposing a $10,000 restitution fine,
which was the maximum fine that could be imposed under section 1202.4, subdivision (b).
Defendant argues that the fine must be stayed until the People demonstrate that defendant has the
ability to pay the $10,000 restitution fine.
During sentencing, defendant objected to the restitution fine on the ground he could not pay it.
Defendant told the court he did not have any money to pay the fine. He added that the court had
previously found at arraignment that he was indigent. The clerk's transcript shows that during
arraignment, the trial court found that defendant did not have the ability to pay the public
defender registration fee. Arraignment was in May 2018, eight months before the sentencing
hearing on January 11, 2019. The trial court responded during sentencing, "[T]hat was then; this
is now." Defendant replied that he still did not have any money. Defendant had been incarcerated
continuously since his arraignment.
Section 1202.4, subdivision (b)(1), which provides for imposition of a restitution fine, states in
relevant part: "(b) In 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. [¶] (1) The restitution fine shall be set at the
discretion of the court and commensurate with the seriousness of the offense. If the person is
convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more
than ten thousand dollars ($10,000)." (Italics added.) Here, the trial court imposed the maximum
restitution fine of $10,000, where defendant had committed the serious offense of armed robbery.
Section 1202.4, subdivision (b)(2) states that, "[i]n setting a felony restitution fine, the court may
determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1)
multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied
by the number of felony counts of which the defendant is convicted." (Italics added.) Applying
this suggested formula in the instant case, the restitution fine would total $11,700 for defendant's
25 years to life plus 14 year sentence (39 years X $300). The trial court would then be required
to reduce the fine to the maximum fine of $10,000 permitted under section 1202.4, subdivision
(b)(1). Here, the trial court imposed a $10,000 restitution fine, which is consistent with the
suggested formula in section 1202.4, subdivision (b)(2).
Section 1202.4, subdivision (c) provides that "[t]he court shall impose the restitution fine unless
it finds compelling and extraordinary reasons for not doing so and states those reasons on the
record. A defendant's inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine. Inability to pay may be considered only in increasing the
amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b)." (Italics added.) In the instant case, there was no showing of "compelling and
extraordinary reasons" for not imposing a restitution fine. While under section 1202.4,
subdivision (c), inability to pay may be considered when imposing a restitution fine in excess of
the $300 minimum fine, inability to pay alone is not determinative. Other factors may be
considered in addition to inability to pay when the trial court exercises its discretion in
determining the amount of the restitution fine.
With regard to a defendant's inability to pay fines, section 1202.4, subdivision (d) states that,
"[i]n setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine
pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors,
including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the
offense and the circumstances of its commission, any economic gain derived by the defendant as
a result of the crime, the extent to which any other person suffered losses as a result of the crime,
and the number of victims involved in the crime. Those losses may include pecuniary losses to
the victim or his or her dependents as well as intangible losses, such as psychological harm
caused by the crime. Consideration of a defendant's inability to pay may include his or her future
earning capacity." (Italics added.)
In the instant case, defendant argued he did not have the ability to pay the $10,000 restitution
fine. However, he did not present any evidence of this, other than his own statement to the court
that he did not have any money, which was not under oath. He also noted that the trial court had
determined he was indigent at his arraignment hearing. The trial court told defendant the court
was willing to consider evidence showing defendant did not have an ability to pay the fine and
noted defendant had not met his burden of providing evidence of inability to pay. Defendant did
not state he had any evidence of inability to pay or request a continuance to provide such
evidence. Under section 1202.4, subdivision (d), "[a] defendant shall bear the burden of
demonstrating his or her inability to pay." Furthermore, section 1202.4, subdivision (d) states
that "[e]xpress findings by the court as to the factors bearing on the amount of the fine shall not
be required. A separate hearing for the fine shall not be required."
The record on appeal demonstrates that defendant was given the opportunity to prove inability to
pay the restitution fine and failed to do so. Although the court had previously found defendant
indigent for the purpose of paying defense costs, this did not establish inability to pay
defendant's fines and fees imposed at sentencing. "[A] defendant may lack the 'ability to pay' the
costs of court-appointed counsel yet have the 'ability to pay' a restitution fine." (People v.
Douglas (1995) 39 Cal.App.4th 1385, 1397.) This is because the statutory requirements for
finding inability to pay the costs of appointed counsel differ (§ 987.8) and are easier to establish
than establishing inability to pay a restitution fine under section 1202.4, subdivision (b). The
indigency statute, section 987.8, does not allow for consideration of prison wages and provides
that, "[u]nless the court finds unusual circumstances, a defendant sentenced to state prison shall
be determined not to have a reasonably discernible future financial ability to reimburse the costs
of his or her defense." (§ 987.8, subd. (g)(2)(B).)
The People argue that the trial court could reasonably consider defendant's future earning
capacity while incarcerated. The People assert that prison wages may range from $12 to $56 a
month, depending on an inmate's skill level. (Cal. Code Regs., tit. 15, § 3041.2; Cal. Dept. Of
Corrections and Rehab., Adult Institutions Operations Manual (2019), art. 12 (Inmate Pay), §§
51120.1, 51120.6, pp. 354-356.) The People contend it will take defendant about 15 years to pay
the $10,000 restitution fine, assuming he makes $56 a month, using his specialized construction
skills. Citing People v. Rodriguez (2019) 34 Cal.App.5th 641 (Rodriguez), defendant argues that
"The inmate minimum wage in California prisons is $0.08 per hour and $12 per month." (Id. at
p. 649.) The court in Rodriguez further stated that prison wages were up to $0.32 per hour for
inmates with specialized skills, such as dental techs and welders. (Ibid.) Defendant argues that it
will take him 69 years and five months to repay the $10,000 restitution fine, assuming he makes
$12 per month in prison. During sentencing, neither party presented evidence of defendant's
prospective prison wages.
The People further argue that the probation report, which the trial court stated it had received and
considered without any objection from defendant, supported a reasonable finding that defendant
was able to pay the $10,000 restitution fine and the other fees. The probation report stated that,
before defendant's arrest in May 2018, he had been employed in construction; earned about
$4,000 a month; had $1,250 in expenses, including rent, utilities, and vehicle costs; was
unmarried; and had one child.
According to the probation report, defendant had said he spent $100 a day on methamphetamine,
which he started using three weeks before his arrest, when he was 52 years old. Defendant also
told the probation officer that up until about the time he started using methamphetamine,
everything was great. He had been employed continuously for over a year and a half, since
January 2017; he was physically healthy with no physical disabilities; and had recently
purchased his truck. The People argue that, based on information in the probation report, he had
$2,750 in monthly disposable income. The People note that the court should not assume
defendant had no assets because he was using methamphetamine, because he reported that he did
not start using methamphetamine until three weeks before his arrest.
Under section 1202.4, it was within the trial court's discretion to impose the restitution fine based
on factors other than or in addition to ability to pay, such as the seriousness of the offense and
length of the defendant's sentence, consistent with the formula suggested in section 1202.4,
subdivision (d). In People v. Nelson (2011) 51 Cal.4th 198 and People v. Gamache (2010) 48
Cal.4th 347, the trial court imposed a $10,000 restitution fine pursuant to section 1202.4. The
defendants in both cases argued that the court erred by failing to take into consideration the
defendant's ability to pay. In both cases, the California Supreme Court rejected this contention,
concluding there was no error. The court in Nelson and Gamache stated that the defendant
"'points to no evidence in the record supporting his inability to pay, beyond the bare fact of his
impending incarceration. Nor does he identify anything in the record indicating the trial court
breached its duty to consider his ability to pay; as the trial court was not obligated to make
express findings concerning his ability to pay, the absence of any findings does not demonstrate
it failed to consider this factor. Thus, we cannot say on this record that the trial court abused its
discretion.'" (People v. Nelson, supra, 51 Cal.4th at p. 227, quoting People v. Gamache, supra, at
p. 409.)
Here, the defendant failed to cite evidence in the record demonstrating an inability to pay,
beyond the bare fact of his impending incarceration and the trial court's previous finding at
arraignment that he was indigent for purposes of payment of the cost of representation. Under
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided three days before
defendant's sentencing hearing and is currently being reviewed by the California Supreme Court,
the court held that, "although Penal Code section 1202.4 bars consideration of a defendant's
ability to pay unless the judge is considering increasing the fee over the statutory minimum, the
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, supra, 30 Cal.App.5th at p. 1164.)
In the instant case, the court satisfied the Dueñas requirement of hearing whether defendant had
an ability to pay the restitution fine but it is unclear whether the trial court concluded defendant
had the ability to pay the restitution fine. During sentencing, defendant objected to the $10,000
restitution fine on the ground he did not have the ability to pay the fine. The court told defendant
he could present evidence of inability to pay and permitted him to argue the issue. As the
California Supreme Court concluded in Nelson and Gamache, "'as the trial court was not
obligated to make express findings concerning his ability to pay, the absence of any findings
does not demonstrate it failed to consider this factor. Thus, we cannot say on this record that the
trial court abused its discretion.'" (People v. Nelson, supra, 51 Cal.4th at p. 227, quoting People
v. Gamache, supra, 48 Cal.4th at p. 409.)
Furthermore, the probation report indicated defendant may have had assets which could be used
to pay the court imposed fines and fees. According to the probation report, he had been
continuously employed from January 2017, up until his arrest in May 2018; up until he stopped
working two weeks before his arrest, he had $2,750 in monthly discretionary income; he had
recently purchased a new truck; he was in good physical health; and he had skills which would
enable him to work in prison while serving his 39 year prison term.
We conclude the trial court did not abuse its discretion in imposing the $10,000 restitution fee
because the record demonstrates that, in accordance with Dueñas, the trial court permitted
defendant to introduce evidence demonstrating inability to pay the restitution fine, the court
considered defendant's inability-to-pay objection to the fine, the probation report indicated
defendant had the ability to pay the fine, and, under Nelson and Gamache, "'we cannot say on
this record that the trial court abused its discretion.'" (People v. Nelson, supra, 51 Cal.4th at p.
227, quoting People v. Gamache, supra, 48 Cal.4th at p. 409.)
