Subsequent history: No petition for review filed and remittitur issued.
Santos pleaded no contest to four offenses and admitted a prison prior. The standard plea form reflected handwritten modifications to the paragraph concerning fines, fees, and assessments. At sentencing prior to Dueñas, defense counsel requested fines and fees be run concurrent to the time imposed because Santos was indigent. The court imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a court operations assessment of $80 (Pen. Code, § 1465.8), a criminal conviction assessment of $60 (Gov. Code, § 70373), and other fines and fees. The court waived fees connected to two of the counts. There was no objection. On appeal, both parties agreed the matter should be remanded for the limited purposed of determining ability to pay the section 1465.8 and section 70373 assessments.
- Santos did not forfeit his challenge concerning ability to pay the section 1465.8 and section 70373 assessments. (Agreeing with People v. Castellano (2019) 33 Cal.App.5th 485; People v. Johnson (2019) 35 Cal.App.5th 134.) Moreover, Santos objected to the $1,800 restitution fine recommended by probation and removed language from the plea form stating he did not contest his fines, fees, and assessments.
- Because the record established that Santos was indigent at the time of sentencing, the court remanded the matter to the trial court so that Santos may request a hearing and present evidence demonstrating his contended inability to pay the assessments.
- Because Santos did not address the restitution fine on appeal, the court did consider this fine in its analysis.
- On remand, it is the defendant’s burden to demonstrate an inability to pay, not the prosecution’s burden to show the defendant can pay.
- In weighing the defendant’s ability to pay, the trial court may consider, if applicable, the defendant’s ability to earn wages while serving his or her prison sentence.