Trial counsel was not ineffective for failing to request a hearing on defendant’s ability to pay sexual offender fines; however, trial courts are encouraged to independently inquire about defendant’s ability to pay. Acosta was convicted of committing a lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a)) and contacting a minor with the intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a)). At sentencing, the court imposed two fines pursuant to Penal Code section 290.3 without making any findings about Acosta’s ability to pay the fines. Counsel did not ask for a hearing and did not object to their imposition. Acosta appealed, arguing that his case should be remanded for a hearing on his ability to pay the fines because his counsel was constitutionally ineffective for failing to object to the fines. Held: Affirmed. Section 290.3 requires a defendant be fined for certain sex offenses (including sections 288 and 288.3) “unless the court determines that the defendant does not have the ability to pay the fine.” (Pen. Code, § 290.3, subd. (a).) In order to demonstrate that an attorney provided ineffective assistance of counsel, appellant must establish that his counsel’s performance was deficient and that appellant suffered prejudice due to the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Here, the court found it was possible counsel had made a tactical decision not to object to particular fines because it was not in the defendant’s interest to do so. Counsel could have determined that he would be unable to establish that Acosta had no ability to pay based on his age, work history, and intended plan to pursue employment after serving his sentence. However, in light of these considerations and the reality that many felony defendants are indigent, the Court of Appeal urged trial courts to inquire sua sponte into a defendant’s financial circumstances before imposing a sexual offender fine.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H045175.PDF