Defendant’s fines and fees challenge under People v. Dueñas (2019) 30 Cal.App.5th 1157, was not forfeited, but any error in imposing the assessments was harmless because the record showed an ability to pay. Johnson was convicted of a felony offense and sentenced to eight years in prison. At sentencing, the trial court imposed a $300 restitution fine, a $40 court security fee, and a $30 criminal conviction assessment. Defendant appealed, arguing the court should reverse imposition of the assessments and stay the restitution fine until the People proved his ability to pay. Held: Affirmed. Under People v. Dueñas, due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before imposing a court facilities and court operations assessment under Penal Code section 1465.8 and Government Code section 70373. In addition, execution of any restitution fine (Pen. Code, § 1202.4) must be stayed unless the trial court concludes the defendant has the present ability to pay the fine. Here, the People argued that Johnson’s Dueñas challenge was forfeited because he did not object at sentencing. However, the forfeiture doctrine does not apply where a change in the law was not reasonably foreseeable, and Dueñas was not reasonably foreseeable. Nevertheless, Dueñas is distinguishable on the merits. Dueñas involved a homeless probationer who could not work and was trapped in a cycle of poverty. In contrast, the record here shows Johnson worked on and off and could afford to own a cell phone and the unplanned expense of a hotel room. Moreover, as a felon sentenced to lengthy prison term, Johnson will have the ability to earn prison wages during his eight-year sentence. Thus, even assuming Johnson suffered a due process violation when the court imposed this modest financial burden on him without considering his ability to pay, the error is harmless “because he has ample time to pay it from a readily available source of income while incarcerated.”

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/A149394.PDF