Subsequent history: REVIEW GRANTED on 11/26/2019 (S257844). This case 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?

A jury convicted appellants Hernandez and Kopp of multiple felony offenses and the trial court imposed indeterminate life sentences. At appellants’ sentencing hearing, Hernandez’s trial attorney asked for a “minimum of $200” for “the restitution fine.” He also requested that the court stay “the additional fines for Mr. Hernandez due to his inability to pay.” The court declined to find an inability to pay and imposed the following assessments and fines on appellants: a restitution fine of $10,000 (Pen. Code, § 1202.4, subd. (b)); a court security fee of $120 (Pen. Code, § 1465.8); an immediate critical needs account fee of $90 (Gov. Code, § 70373); a criminal justice administrative fee of $154 (Gov. Code, § 29550.1); a drug program fee of $615 (Health & Saf. Code, § 11372.5); and a lab analysis fee of $205 (Health & Saf. Code, § 11372.5). Kopp’s trial counsel did not object. On appeal, appellants argued that the trial court erred in imposing certain fees and fines without first determining their ability to pay these charges, relying on Dueñas.

Holdings/Reasoning:

• Although the court did not reject Dueñas outright, it urged caution in following that case and announcing a significant constitutional rule without regard to the extreme facts Dueñas presented.
• Here, there was no indication that either Hernandez or Kopp were anything like the defendant in Dueñas, but the court was mindful that neither appellant was permitted to make any record in the trial court as to his or her financial condition.
• The court agreed, to some extent, with the Dueñas court’s conclusion that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373, if the defendant requests such a hearing. To this list of assessments, the court would add the criminal justice administration fee, imposed on appellants here, under Government Code section 29550.1.
• It was error not to hold an ability to pay hearing after Hernandez explicitly raised the issue below.
• It is appellants’ burden to make a record below as to their ability to pay these assessments. To the extent the Dueñas court implied that it is the prosecution’s burden to prove that a defendant can pay an assessment, the court here disagreed.
• The trial court should not limit itself to considering only whether appellants have the ability to pay at the time of the sentencing hearing. As both appellants will be serving lengthy prison sentences, it is appropriate for the court to consider the wages that both may earn in prison.
• The court did not follow the Dueñas court’s approach to restitution fines. Punitive fines (like the restitution fine) should be challenged under the excessive fines clause of the Eighth Amendment of the federal Constitution and article I, section 17 of the California Constitution.
• The case was remanded for an ability to pay hearing.