People v. Jones (2019) 36 Cal.App.5th 1028 People v. Jones, 4DCA, Div. 2, Case No. E069873, 6/28/2019, Subsequent history: Petition for review denied 10/23/2019 and remittitur issued.

Jones was convicted of a felony offense. The trial court imposed a $70 fee for “court construction and court operations” and a $300 restitution fine. Jones challenged these fines on appeal, relying on Dueñas, which was decided while his appeal was pending.

Holdings/Reasoning:

• Jones did not forfeit the Dueñas argument despite his failure to raise it in the trial court. Given the substantive law in existence at the time of Jones’s sentencing, Dueñas was unforeseeable. “The circumstance that some attorneys may have had the foresight to raise this issue [in Dueñas] does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated” Dueñas. (Quoting People v. Black (2007) 41 Cal.4th 799, 812.) (Agreeing People v. Castellano (2019) 33 Cal.App.5th 485, 489; People v. Johnson (2019) 35 Cal.App.5th 134, 137–138, and disagreeing with People v. Frandsen (2019) 33 Cal.App.5th 1126 on this point.)
• The trial court’s imposition of the fees and restitution fine without conducting an ability to pay hearing was error under Dueñas. Because no ability to pay hearing was held, it was not Jones’ burden on appeal to establish his eligibility for relief. But the court will find Dueñas error harmless if the record demonstrates a defendant cannot make such a showing.
• Here, the error was harmless beyond a reasonable doubt because Jones will have sufficient time to earn the amount he owes during his sentence by working in prison.