By failing to object to imposition of the maximum restitution fine, defendant forfeited his claim that the trial court erred by failing to consider his ability to pay fines and fees. Following Gutierrez’s conviction of several felonies, the trial court ordered that he pay the maximum restitution fine of $10,000 and found that he had the ability to pay other fees. Gutierrez did not object. He also did not request that the trial court consider his ability to pay when he was resentenced and the fines and fees were reimposed following a remand in his first appeal. In a petition for rehearing during his second appeal, he argued for the first time that the court erred in imposing the fines and fees without first affording him a separate ability-to-pay hearing, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (holding that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes certain fines and fees). The Court of Appeal invited supplemental briefing on whether the issue was forfeited based on Gutierrez’s failure to raise the issue in the trial court. Held: Affirmed on this point. Dueñas involved a challenge on appeal to imposition of the minimum restitution fine and mandatory fees. As noted in People v. Frandsen (2019) 33 Cal.App.5th 1126, pre-Dueñas law permitted a challenge to the maximum restitution fine based on ability-to-pay grounds. (See Pen. Code, § 1202.4, subd (c).) Here, the trial court imposed the maximum restitution fine. “On two separate occasions, Gutierrez had the statutory right to request that the court consider his ability to pay in setting the restitution fine, but he did not do so. His silence is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas.” The same is true of the fees. Further, at the time of sentencing the court relied on trial testimony and the probation report to make a factual finding that Gutierrez had the ability to pay the fees, which was supported by his lengthy employment history.
[Editor’s Note: A petition for review was denied in this case on 9/18/2019. However, on 11/13/2019, the California Supreme Court granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (S257844/D072464)), which presents the following issues: (1) Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant’s inability to pay?]
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/D073103A.PDF