ability to pay hearing in California

2025(Id. at p. 1172.) In a subsequent 13 decision, the Dueñas court held the defendant bears the burden of showing his or her inability to pay, and the court “must consider all relevant factors,” including future earnings and “potential prison pay during the period of incarceration to be served by the defendant.” (People v. Castellano (2019) 33 Cal.App.5th 485, 490-491 , fn. omitted.) Since Dueñas, some courts have criticized the decision and declined to follow it, some have concluded the Eighth Amendment’s prohibition against excessive fines provides the proper framework for analyzing an ability

2025(Id. at p. 1168.) The court also concluded that “the execution of any restitution fine under [section 1202.4] must be stayed unless and until 8 the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Id. at p. 1164.) A different panel of the same court that decided Dueñas later clarified that, consistent with Dueñas, the defendant “must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and[,] at a hearing[,] present evidence of his or her inabil

2025(Dueñas, supra, 30 Cal.App.5th at p. 1168 .) Dueñas also concluded that the execution of a restitution fine under section 1202.4 “must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Dueñas, at p. 1164.) 2 Courts are split on whether Dueñas was correctly decided, and the Supreme Court is set to resolve the issue after granting review in People v. Kopp (2019) 38 Cal.App.5th 47 , review granted November 13, 2019, S257844.

2024Our Supreme Court must resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 , review granted November 13, 2019, S257844, which concluded due process requires the trial court to conduct an ability to pay hearing before imposing assessments but not restitution fines.

2024We have concluded that petitioner has made a prima facie showing sufficient to warrant issuance of an order to show cause on his petition, and we address the matter by separate order. 13 In People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), the Court of Appeal “held that a trial court must ‘conduct an ability to pay hearing and ascertain a defendant’s present ability to pay’ before requiring a defendant to pay assessments . . . or a restitution fine . . . .” (People v. Jones (2019) 36 Cal.App.5th 1028, 1030 .) However, the general rule is that “a defendant who fails to object to the imposit

2022By failing to object to this fee, or seek an ability to pay hearing before the court’s imposition of the fee, Esquivel forfeited his challenge on appeal. 7 For example, the courts in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), People v. Frandsen (2019) 33 Cal.App.5th 1126 , 1154- 1155, and People v. Bipialaka (2019) 34 Cal.App.5th 455 , 464 found forfeiture, but the courts in People v. Johnson (2019) 35 Cal.App.5th 134 , 137- 138, People v. Castellano (2019) 33 Cal.App.5th 485, 489 , and People v. Jones (2019) 36 Cal.App.5th 1028 , 1033 did not find forfeiture. 16 Except

2026The mandatory orders for restitution are made part of the conditions of probation because ‘[f]ailure to do so would lead to successful probationers avoiding the mandatory nature of subdivision (b).’” (People v. Holman (2013) 214 Cal.App.4th 1438, 1457 ; see People v. Arata (2004) 118 Cal.App.4th 195, 201 [“If probation is granted, payment of the restitution fine must be made a condition of that probation.”].) In Dueñas, supra, 30 Cal.App.5th 1157 we held that, “although . . . section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee ov

2026The mandatory orders for restitution are made part of the conditions of probation because ‘[f]ailure to do so would lead to successful probationers avoiding the mandatory nature of subdivision (b).’” (People v. Holman (2013) 214 Cal.App.4th 1438, 1457 ; see People v. Arata (2004) 118 Cal.App.4th 195, 201 [“If probation is granted, payment of the restitution fine must be made a condition of that probation.”].) In Dueñas, supra, 30 Cal.App.5th 1157 we held that, “although . . . section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee ov

2024(Cf. People v. Castellano (2019) 33 Cal.App.5th 485, 489 ; People v. Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to forfeiture rule did not apply to claim concerning failure to obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [noting longstanding rule that a constitutional right may be forfeited in criminal proceedings by “ ‘ “failure to make timely assertion of the right before a tribunal having jurisdiction to determine it” ’ ”].) To establish ineffective assistance of counsel, “the defendant must first show counsel’s perfo

2022(See People v. Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to forfeiture rule did not apply to claim concerning failure to obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [noting longstanding rule that a constitutional right may be forfeited in criminal proceedings by “ ‘ “failure to make timely assertion of the right before a tribunal having jurisdiction to determine it” ’ ”].) Nor has defendant established that his counsel was ineffective for failing to object.

2021(See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320 , 326, review granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, 94, 96 (Kopp), review granted Nov. 13, 2019, S257844.) In Kopp, our Supreme Court has articulated the following issues for review: “(1) Must a court consider a defendant’s ability to pay before imposing or executing fines, 11 fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant’s inability to pay?” Given the procedural posture of this case—where the matter must be remanded to the trial court for resentencing—and

2021(See People v. Santos (2019) 38 Cal.App.5th 923, 934 [“in weighing the defendant’s ability to pay the fee at issue, the trial court may consider, if applicable, the defendant’s ability to earn wages such as while serving his or her prison sentence”]; People v. Castellano (2019) 33 Cal.App.5th 485, 490 [in evaluating a defendant’s ability to pay, the court may consider “potential prison pay during the period of incarceration to be served by the defendant”].) But the trial court refused to hold an ability-to-pay hearing, as Cooper had requested, or to permit him to present evidence in some other

2025(See, e.g., People v. McCullough (2013) 56 Cal.4th 589, 592-593 [constitutional challenge to booking fee can be forfeited unless defendant timely objects]; People v. Torres (2019) 39 Cal.App.5th 849 , 860 & fn.4 [excessive fines claim forfeited in absence of timely objection].) “ ‘ “[N]o procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” (In re Sheena K. (2007) 40 C

2024(Cf. People v. Castellano (2019) 33 Cal.App.5th 485, 489 ; People v. Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to forfeiture rule did not apply to claim concerning failure to obtain express waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [noting longstanding rule that a constitutional right may be forfeited in criminal proceedings by “ ‘ “failure to make timely assertion of the right before a tribunal having jurisdiction to determine it” ’ ”].) To establish ineffective assistance of counsel, “the defendant must first show counsel’s perfo

2023(People v. Montelongo (2020) 55 Cal.App.5th 1016 ; People v. Taylor (2019) 43 Cal.App.5th 390 , 399–400; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 ; People v. Smith (2020) 46 Cal.App.5th 375 , 395; People v. Frandsen (2019) 33 Cal.App.5th 1126 , 1153–1154.) In the alternative, defendant argues his attorney was prejudicially ineffective for failing to object to the fines and fees based on Dueñas, which held that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay” before it imposes any fines or fees.

2022By failing to object to this fee, or seek an ability to pay hearing before the court’s imposition of the fee, Esquivel forfeited his challenge on appeal. 7 For example, the courts in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), People v. Frandsen (2019) 33 Cal.App.5th 1126 , 1154- 1155, and People v. Bipialaka (2019) 34 Cal.App.5th 455 , 464 found forfeiture, but the courts in People v. Johnson (2019) 35 Cal.App.5th 134 , 137- 138, People v. Castellano (2019) 33 Cal.App.5th 485, 489 , and People v. Jones (2019) 36 Cal.App.5th 1028 , 1033 did not find forfeiture. 16 Except

2024(See People v. Lowery (2020) 43 Cal.App.5th 1046 , 1053–1054 [defendants forfeited Dueñas challenge where they did not object to the fines and fees imposed against them and did not request an ability to pay hearing]; People v. Castellano (2019) 33 Cal.App.5th 485, 490 [“a defendant must in the first instance contest in the trial court his or her ability to pay”]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen) [“Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should no

2024(People v. Kopp (2019) 38 Cal.App.5th 47 , review granted Nov. 13, 2019, S257844.) 15 forfeited Dueñas challenge where they did not object to the fines and fees imposed against them and did not request an ability to pay hearing]; People v. Castellano (2019) 33 Cal.App.5th 485, 490 [“a defendant must in the first instance contest in the trial court his or her ability to pay”]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [“Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should

2025(See People v. Johnson (2019) 35 Cal.App.5th 134 , 139–140 [any error in imposing fines and fees without an ability to pay hearing was harmless because record showed that the defendant had some financial means and past income-earning capacity, as well as an ability to earn prison wages].) III.

2024(Cf. People v. Johnson (2019) 35 Cal.App.5th 134 , 139–140 [imposing $370 in fines and fees without an ability to pay hearing was harmless beyond a reasonable doubt where defendant could earn wages over an eight-year term].) Burns requests a remand so he can present facts in the trial court establishing his inability to work.

2025(People v. Nelson (2011) 51 Cal.4th 198, 227 [inability to pay claim forfeited “by failing to object at [the] sentencing hearing”]; People v. Greeley (2021) 70 Cal.App.5th 609 , 624 [“Dueñas had already been decided, and there is no reason why defendant could not have requested an ability-to-pay hearing”].)10 IV.

2024(See People v. McCullough (2013) 56 Cal.4th 589 , 596–597; People v. Nelson (2011) 51 Cal.4th 198, 227 ; People v. Avila (2009) 46 Cal.4th 680, 729 .) In Dueñas, the misdemeanant disputed her ability to pay either a restitution fine or court fees, requested an ability-to-pay hearing, and produced evidence putting her ability to pay at issue. ( Dueñas, supra, 30 Cal.App.5th at pp. 1161–1163.) Here, Jackson was sentenced several years after Dueñas was decided, and yet he did not dispute his ability to pay a restitution fine or court fees, or request an ability-to-pay hearing.

2021The People contend that the trial court already gave Miller an opportunity to request a hearing and that Miller “did not avail himself to that opportunity.” Because the trial court gave notice to the wrong attorney (Miller’s appellate counsel rather than his trial counsel), and because the trial court can make a determination on Miller’s ability to pay “in just a few minutes upon remand when the trial court addresses the serious felony enhancement issue,” Miller should have another opportunity to request, through his trial counsel, an ability-to-pay hearing. 3 As the court in Rocha observed, t

2021The People contend that the trial court already gave Miller an opportunity to request a hearing and that Miller “did not avail himself to that opportunity.” Because the trial court gave notice to the wrong attorney (Miller’s appellate counsel rather than his trial counsel), and because the trial court can make a determination on Miller’s ability to pay “in just a few minutes upon remand when the trial court addresses the serious felony enhancement issue,” Miller should have another opportunity to request, through his trial counsel, an ability-to-pay hearing. 3 As the court in Rocha observed, t

2022(People v. Aguilar (2015) 60 Cal.4th 862, 864 .) The constitutional nature of a defendant’s ability-to-pay claim does not justify a deviation from the forfeiture rule.

2021(See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 ; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 .) At the time of defendant’s sentencing hearing, Dueñas had already been decided and there is no 15 reason why defendant could not have requested an ability-to-pay hearing based on Dueñas.

2020(See Kopp, supra, 38 Cal.App.5th at p. 96 [noting that a defendant’s ability to pay various fines, fees, and assessments may also be considered by the length of his or her prison term and his or her ability to earn prison wages], citing People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's capacity to earn prison wages], and § 2085.5 [outlining how a restitution fine balance may be collected from prison wages].) 13 The issue of the viability of Dueñas and its constitutional underpinnings, requiring an ability to pay hearing before various fines, fees, and

2020(Id. at pp. 1160-1161.) In these circumstances, the appellate court held the restitution fine imposed there “must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay [it].” (Id. at p. 1164; see People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay may include future sources of income].) Unlike the defendant in Dueñas, Ordonez neither objected to, nor gave any indication at his sentencing hearing that he could not pay the fines.

2025(See, e.g., People v. McCullough (2013) 56 Cal.4th 589, 592-593 [constitutional challenge to booking fee can be forfeited unless defendant timely objects]; People v. Torres (2019) 39 Cal.App.5th 849 , 860 & fn.4 [excessive fines claim forfeited in absence of timely objection].) “ ‘ “[N]o procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” (In re Sheena K. (2007) 40 C

2024(See e.g., People v. McCullough (2013) 56 Cal.4th 589, 592-593 [constitutional challenge to booking fee forfeited]; People v. Torres (2019) 39 Cal.App.5th 849 , 860 & fn. 4 [excessive fines claim forfeited in absence of timely objection].) “ ‘ “[N]o procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881 .) In this case, de

2022(People v. Kipp (1998) 18 Cal.4th 349, 377 [failure to assert a meritless position does not demonstrate ineffective assistance of counsel].) Defendant’s appeal hinges on the analysis in Dueñas finding an ability to pay hearing is required before imposing fines and fees, and we are not persuaded that this analysis is correct.

2021(People v. Kipp (1998) 18 Cal.4th 349, 377 [failure to assert a meritless position does not demonstrate ineffective assistance of counsel].) Defendant’s appeal hinges on the analysis in Dueñas finding an ability to pay hearing is required before imposing fines and fees, and we are not persuaded that this analysis is correct.

2021(Cal. Code Regs., tit. 15 § 3097, subd. (c); see §§ 1202.4, subd. (l) [authorizing fee up to 10 percent of the restitution fine to cover actual administrative costs], 2085.5 [same].)” ( Rodriguez, supra, at p. 649 .) In Dueñas, supra, 30 Cal.App.5th at page 1164 , the court concluded that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373.” In accordance with Dueñas, here, the tria

2021As to the $700 in assessments, because the trial court did not determine whether defendant could pay them, “[u]nder Dueñas, this was error, and we must remand for an ability to pay hearing unless the error was harmless.” (People v. Taylor (2019) 43 Cal.App.5th 390 , 401.) We assume without deciding that the trial court impermissibly imposed the $300 restitution fine without determining defendant’s ability to pay because we conclude the error, if any, was harmless. “‘[E]very able-bodied’ prisoner is required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) A prisoner’s assignment

2024(See People v. McCullough (2013) 56 Cal.4th 589 , 596–597; People v. Nelson (2011) 51 Cal.4th 198, 227 ; People v. Avila (2009) 46 Cal.4th 680, 729 .) In Dueñas, the misdemeanant disputed her ability to pay either a restitution fine or court fees, requested an ability-to-pay hearing, and produced evidence putting her ability to pay at issue. ( Dueñas, supra, 30 Cal.App.5th at pp. 1161–1163.) Here, Jackson was sentenced several years after Dueñas was decided, and yet he did not dispute his ability to pay a restitution fine or court fees, or request an ability-to-pay hearing.

2024(See People v. Avila (2009) 46 Cal.4th 680, 729 ; Lowery, at p. 1054.) Furthermore, King bases his argument that the court was required to stay the restitution fine on People v. Dueñas (2019) 30 Cal.App.5th 1157 , which held that “the execution of any restitution fine imposed under [section 1202.4] must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Id. at p. 1164.) Because Dueñas was decided before King’s sentencing hearing, counsel could have brought the case to the court’s att

2023As the lead opinion explained, “fines imposed as punishment ([t]here, the restitution fine) are subject to the existing constitutional rule that monetary punishments in and of themselves need not be adjusted in accordance with ability to pay.” (Ibid.) In light of our conclusion that Lowe was not entitled to an ability to pay hearing on the restitution fines, which are punitive, we conclude that Lowe has failed to demonstrate trial counsel’s performance “fell below an objective standard of reasonableness” (Strickland v. Washington, supra, 466 U.S. at pp. 687-688) by failing to object to imposit

2022Pointing out that Dueñas was decided two years before her sentencing, Awwad argues her attorney should have been aware of the possibility of striking or staying the fees and fines and need to request an ability to pay hearing, and should at least have acted to preserve her right to appeal these issues. “ ‘ “To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability th

2023(People v. Scott, supra, 9 Cal.4th at p. 351 ; People v. McCullough (2013) 56 Cal.4th 589, 593 , citing In re Sheena K. (2007) 40 Cal.4th 875 , 880–881 [“ ‘ “[A] constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it” ’ ”].) The forfeiture rules apply straightforwardly to a defendant claiming the trial court violated their due process right or the prohibition on excessive fines by failing to hold an ability to pay hearing under Dueñas if

2021(See People v. Scott (1994) 9 Cal.4th 331, 351 .) 14 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 section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. ( Kopp, supra, at pp. 95-96 .) In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant’s present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding.

2023(Smith, at pp. 853-854; Woods, at pp. 272-273.) Although there is no statutory authority for trial courts to stay the parole revocation fine or the two assessments (People v. Woods, supra, 191 Cal.App.4th at p. 272 ), the trial court may have intended to make a discretionary choice to impose and stay these amounts “unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay” them, following People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164-1169 .

2021(People v. Kim (2011) 193 Cal.App.4th 836, 842 ; see People v. Woods (2010) 191 Cal.App.4th 269, 272 .) Likewise, Government Code section 29550.1, which authorizes the imposition of the criminal justice administration fee, does not include an ability to pay requirement.

2021Dueñas held that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 7073.” (Dueñas, supra, 30 Cal.App.5th at p. 1164 ; see also, e.g., People v. Kopp (2019) 38 Cal.App.5th 47 , 95–96, review granted Nov. 13, 2019, S257844 (Kopp).) Although some decisions have disagreed with the due process analysis and conclusions in Dueñas (People v. Gutierrez (2019) 35 Cal.App.5th 1027 , 1034– 1041 (co

2020With respect to the court facilities and court operations assessments, the court held, “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes [these] assessments.” (Dueñas, supra, 30 Cal.App.5th at p. 1164 .) The court noted the constitutional guarantees of due process and equal protection prohibit a state from “inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty.” (Id. at p. 1166, citing Griffin v. Illinois (1956) 351 U.S. 12, 17 [ 100 L.Ed. 891 ]

2024The plain language of the statute ‘does not limit [its] reach only to situations where the fee simply did not apply at all or was a result of mathematical error.’ [Citation.] Section 1237.2 applies any time a defendant claims the trial court wrongly imposed fines, penalty assessments, surcharges, fees, or costs without having first presented the claim in the trial court.” (People v. Hall (2019) 39 Cal.App.5th 502, 504 .) In response to our request for additional briefing, defendant contends that section 1237.2 does not apply because his appeal “raises two ‘separate and discrete question[s] of

2023This section only applies in cases where the erroneous imposition or calculation of fines . . . [or] fees . . . [is] the sole issue on appeal.” The only claim of error Garcia raises on appeal is that the trial court improperly imposed the restitution fine and assessments without holding an ability-to-pay hearing at which he could submit evidence. “[S]ection 1237.2 broadly applies to an error in the imposition . . . of fees” or fines, and thus “[t]he plain language of the statute ‘does not limit [its] reach only to situations where the [monetary charge] simply did not apply at all or was a resu

2022(People v. Lewis (2009) 46 Cal.4th 1255, 1321 .) In Dueñas, supra, 30 Cal.App.5th 1157 , the Second Appellate District concluded that due process required the trial court to stay execution of any restitution fine unless and until it holds an ability-to-pay hearing and finds that the defendant has the ability to pay.

2021(People v. Lewis (2009) 46 Cal.4th 1255, 1321 (Lewis).) The Court of Appeal in Dueñas, however, held that due process requires the trial court to hold an ability to pay hearing before imposing fines, fees, or assessments and that the burden to prove ability to pay is on the prosecution. ( Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1172.) The court further held that execution of any restitution fine imposed under section 1202.4, subdivision (b), must be stayed “until and unless” the trial court holds an ability to pay hearing and the People demonstrate that the defendant has the ability to pay

2022Put differently, there is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it.” (Kopp, at pp. 96–97, fn. omitted.) The Kopp court went on to discuss the Eighth Amendment’s prohibition of excessive fines, concluding with the following four considerations, identified by the United States Supreme Court and adopted by the California Supreme Court, for analyzing whether a fine is unconstitutionally disproportionate: “(1) the defendant’s culpability; (2) the relationship

2020As the Kopp court observed, “there is no due process requirement that the court hold an ability to pay hearing before imposing 11 a punitive fine and only impose the fine if it determines the defendant can afford to pay it.” ( Kopp, supra, 38 Cal.App.5th at pp. 96-97.) A punitive forfeiture violates the excessive fines clause only if it is “grossly disproportional to the gravity of a defendant’s offense.” (United States v. Bajakajian (1998) 524 U.S. 321, 334, 339-340 [forfeiture of $357,144 in currency for failure to report leaving the country with more than $10,000 was grossly disproportional

2025To establish a claim of ineffective assistance of counsel, a defendant must prove that (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant, meaning there is a “reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) On direct appeal, a conviction will be reversed for ineffective assistance “only if (1) the record affirmat

2025(Mai, supra, 57 Cal.4th at p. 1009 ; see also People v. Kelly (1992) 1 Cal.4th 495, 520 [generally, “failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight”; rejecting claims of ineffective assistance based on failure to object “ ‘unless there simply could be no satisfactory explanation’ ”].) DISPOSITION The judgment is affirmed. /s/ Duarte, Acting P. J.

2022By failing to object to this fee, or seek an ability to pay hearing before the court’s imposition of the fee, Esquivel forfeited his challenge on appeal. 7 For example, the courts in People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), People v. Frandsen (2019) 33 Cal.App.5th 1126 , 1154- 1155, and People v. Bipialaka (2019) 34 Cal.App.5th 455 , 464 found forfeiture, but the courts in People v. Johnson (2019) 35 Cal.App.5th 134 , 137- 138, People v. Castellano (2019) 33 Cal.App.5th 485, 489 , and People v. Jones (2019) 36 Cal.App.5th 1028 , 1033 did not find forfeiture. 16 Except

2021Cases Applying Forfeiture Doctrine to Imposition of Restitution Fines Above Statutory Minimum It was unnecessary for the court in Dueñas to address the issue of forfeiture because the trial court held an ability-to-pay hearing following Velia Dueñas’s objection and request for a hearing, but post-Dueñas, several cases have applied the forfeiture doctrine where the trial court imposed a restitution fine above the statutory minimum. ( Gutierrez, supra, 35 Cal.App.5th at pp. 1032–1033; Bipialaka, supra, 34 Cal.App.5th at p. 464 ; Frandsen, supra, 33 Cal.App.5th at pp. 1153–1154.)16 The restitutio