Court Fees after Conviction Have To Be Based On Ability To Pay

If convicted after a trial or a plea bargain of a crime, in addition whatever other punishments are imposed, the trial court has to impose certain fees. It is not a probation violation not to pay these fees, but if they aren’t paid at the end of probation then a civil judgment is entered for the amount and it can damage your credit. These are different from fines which usually look like some base amount between $100 and $10,000 plus some penalty assessment. The fees include court operations fee, court facilities fee and probation or parole revocation fee (which is stayed unless one’s parole/probation is revoked).

In People v. Duenas, Ms. Duenas is a homeless mother of two who suffers from cerebral palsy and can’t work. She supports her family on public assistance plus what her husband can earn in construction.  She plead guilty to driving without a license. The trial court sentenced her to 30 days jail, $300 fine or 9 additional days in jail and the various court fees. Ms. Duenas asked the court for a hearing on her an ability to pay the fees.

The trial court held a hearing and said Ms. Duenas had the ability to pay and shrugged off the fact that if she didn’t pay it would go to collections. The record in the trial court – the unopposed declaration of Ms. Duenas – shows that Ms. Duenas got the driving on a suspended license charge because she got some traffic tickets as a teenager, was unable to pay them and her license was suspended. 

The Court of Appeal starts off their discussion with a quote from Rivera v. Orange County Probation Department, a Ninth Circuit Case:

"Raising money for government through law enforcement whatever the source — parking tickets, police-issued citations, court-imposed fees, bills for court appointed attorneys, punitive fines, incarceration charges, supervision fees, and more — can lay a debt trap for the poor. When a minor offense produces a debt, that debt, along with the attendant court appearances, can lead to loss of employment or shelter, compounding interest, yet more legal action, and an ever-expanding financial burden — a cycle as predictable and counterproductive as it is intractable."

The Court discusses this and concludes that before the trial court can impose the fees or restitution fine on an indigant defendant (if you have a public defender it is presumed you are indigant) it must first conduct an ability to pay hearing. It specifically says that unless and until the prosecution proves the defendant has the ability to pay it must stay the fees on an indigant defendant.

This case was decided in January 2019 and since that time other Courts of Appeal have walked back or weakened the protections established in Duenas.

For instance, in People v. Evans, a different Court of Appeal held that ability to pay doesn’t apply to direct victim restitution. As opposed to a restitution fee, this is money the defendant must pay to any victims to make them whole.

In People v. Hall, the Court held that the defendant must make a request for an ability to pay hearing in the trial court.

In People v. Santos, the Court held that the defendant has the burden to prove ability to pay. This is despite the fact that Duenas says, “. . . the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." Duenas at 1172.

Other cases have held that a person has the ability to pay because they will earn prison wages or that because they can afford a cell phone they can afford to pay the fees.

In short, if you can’t afford to pay fees you shouldn’t have to. Make sure your lawyer knows about this and addresses at any sentencing. If you have an issue about ability to pay or any other criminal defense issue, please call me at 213-893-8640.


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