Appellant’s argument under People v. Dueñas (2019) 30 Cal.App.5th 1157 was not forfeited for failure to object in the trial court. Castellano was convicted of a felony drug offense and sentenced to prison. The court imposed a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (Pen. Code, § 1465.8), a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5), subject to an additional state court construction penalty (Gov. Code, § 70372), a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), and a suspended $300 parole revocation fine (Pen. Code, § 1202.45). Castellano did not object to the imposition of these assessments, fines, and fees. He appealed. Held: Remanded. It is a violation of due process under the federal and state constitutions to impose a court operations assessment or court facilities assessment without first determining the defendant’s ability to pay. (Dueñas, at p. 1168.) Although a trial court is required to impose a restitution fine, the court must stay execution of the fine until it determines the defendant has the ability to pay the fine. (Dueñas, at p. 1172.) The People argued that Castellano forfeited this issue on appeal because he failed to raise it in the trial court. However, at the time he was sentenced, no California court had held it was unconstitutional to impose fines, fees, or assessments without a determination of the defendant’s ability to pay, nor did any statute authorize the court to consider the defendant’s ability to pay before imposing these fines and assessments. Where a newly announced constitutional principle could not reasonably have been anticipated at the time of trial, or where an objection would have been futile or wholly unsupported by substantive law then in existence, the forfeiture doctrine does not apply.
A limited remand is appropriate where there is no evidence on the record from which a court may infer findings regarding defendant’s ability to pay. A defendant must contest in the trial court his ability to pay the fines, fees, and assessments and present evidence of his inability to pay the amounts contemplated by the court. (Dueñas, at p. 1168.) “In doing so, the defendant need not present evidence of potential adverse consequences beyond the fee or assessment itself, as the imposition of a fine on a defendant unable to pay it is sufficient detriment to trigger due process protections.” The court must then consider all relevant factors in determining whether the defendant is able to pay (this may include potential prison pay during the period of incarceration). Because Castellano’s conviction and sentence were not yet final, and because there was no evidence in the record regarding his ability to pay, the court remanded the matter to the trial court so that Castellano may request a hearing and present evidence. If he demonstrates the inability to pay, the trial court must strike the court facilities assessment, the court operations assessment, and the criminal laboratory analysis fee; and it must stay the execution of the restitution fine. [Editor’s Note: In a footnote, the court highlighted a pending bill (Assem. Bill No. 927 (20192020 Reg. Sess.) § 1) that proposes the following factors to be considered in determining a defendant’s ability to pay: the defendant’s present financial circumstances, whether the defendant is receiving any type of government benefits, whether the defendant was represented by court-appointed counsel, the defendant’s reasonably discernible future financial circumstances, the likelihood the defendant will be able to obtain employment within a six-month period from the date of the court’s consideration of the issue; the amount of victim restitution ordered, and any other factor that may bear upon the defendant’s inability to pay.]
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B286317.PDF