ability to pay hearing in California

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(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

2021The Restitution Fine and Fees We decline to dismiss the appeal because even if defendant had complied with section 1237.2, we disagree with the holding in Dueñas and find the matter need not be remanded on this issue.4 Dueñas 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. ( Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)5 4 The People assert defendant forfeited appellate review of his Dueñas contentions because the sentencing hearing was held over a year after

2020(See id. at p. 1162.) Moreover, we disagree with Dueñas on the applicability of due process in situations like this one.

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

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.

2024(Kopp, supra, 38 Cal.App.5th at p. 96 .) We determined “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.” (Id. at pp. 96–97.) “[B]ecause these fines are intended to punish defendants,” we held “a defendant should challenge such fines under the excessive fines clause of the Eighth Amendment of the federal Constitution,” as well as the similar provision in article I, section 17 of the California Constitution.

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(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

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(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” ’ ”].) 7 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.” (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164 .) Our Supreme Court will resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47 , review grant

2021In addition, he was represented by appointed counsel, which gives rise to a “presumption of indigence for most purposes.” (People v. Santos (2019) 38 Cal.App.5th 923, 933 .) Swaney argues that the court’s response to the section 1237.2 letter suggests the court mistakenly believed it could not strike or stay the fines and fees because they were mandatory, when in fact it could have done so under Dueñas and should have held an ability-to-pay hearing.

2021(See People v. Santos (2019) 38 Cal.App.5th 923 .) I would remand the case to the trial court for the limited purpose of conducting an ability-to-pay hearing, affirming the judgment in all other respects. _________________________________ Greenwood, P.J.

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

2026(Ibid.) The trial court only stated that counsel’s “comments are noted for the record.” Thus, we cannot conclude the trial court considered Saucedo’s “financial wherewithal in deciding to impose a [$2,700] fine.” (Ibid.) Kopp, supra, 19 Cal.5th 1 , compels us to reverse and remand for the trial court to conduct an ability to pay hearing because the imposed fines exceeded the minimum.

2026(Ibid.) The trial court only stated that counsel’s “comments are noted for the record.” Thus, we cannot conclude the trial court considered Saucedo’s “financial wherewithal in deciding to impose a [$2,700] fine.” (Ibid.) Kopp, supra, 19 Cal.5th 1 , compels us to reverse and remand for the trial court to conduct an ability to pay hearing because the imposed fines exceeded the minimum.

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(Ibid.) Here, the record is contrary to Wilson’s position: His probation report reflects he has “an extensive prior employment history” and is currently “a pensioner and collects social security benefits.” Given this evidence and the “rather modest 4 financial burden” the challenged fines and fees present (People v. Johnson (2019) 35 Cal.App.5th 134 , 139–140), it was rational for Wilson’s counsel not to seek an ability to pay hearing.

2025Ability to Pay Appellant’s ability to pay contentions are based on Dueñas, which held “although … section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute 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.” (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164 .) “While the Dueñas panel takes care to announce its holding in due proc

2025Appellant’s argument is based on Dueñas, that held “although … section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability 16. to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (People v. Dueñas, supra, 30 Cal.App.5th at p. 1164 .) “While the Dueñas panel takes care to announce its holding in due process terms, the foundation for i

2024Because Dueñas error is of constitutional magnitude, “we inquire whether the failure to conduct an ability to pay hearing was harmless beyond a reasonable doubt.” (Taylor, supra, 43 Cal.App.5th at p. 401.) We find Dueñas error harmless if “the record demonstrates, beyond a reasonable doubt, that the defendant cannot establish his or her inability to pay.” (Ibid.) The record here does the opposite: the trial court relied solely on the probation report and that report stated that defendant is in poor health and has been unemployed for five years as a result.

2023“The same court that decided Dueñas has since clarified that, at the ability to pay hearing, the defendant bears the burden of showing his or her inability to pay, and the court ‘must consider all relevant factors,’ including ‘potential prison pay during the period of incarceration to be served by the defendant.’ ” (People v. Taylor (2019) 43 Cal.App.5th 390 , 397-398.) Several courts have concluded that Dueñas was wrongly decided and have declined to follow it.

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.

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.

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

2021As to fines, the court in Dueñas 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.” (Dueñas, supra, 30 Cal.App.5th at p. 1164 ; but see 24 People v. Hicks (2019) 40 Cal.App.5th 320 [disagreeing with Dueñas], review granted Nov. 26, 2019, S258946.) We need not determine whether the holding in Dueñas, supra, 30 Cal.App.5th 1157 , was correct and need not address defendant’s objection to the $300 restitu

2020Applicable Law With regard to imposing a restitution fine, the court in People v. Dueñas, supra, 30 Cal.App.5th 1157 , held that, “although Penal Code section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute 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, supra, 30 Cal.App.5th at p. 1164 ; but see People v. Hicks (201

2025In Dueñas, supra, 30 Cal.App.5th 1157 , the Court of Appeal 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 court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373.” (Id. at p. 1164.) The Dueñas court further held “the execution of any restitution fine imposed under [Penal Code 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

2024In Dueñas, supra, 30 Cal.App.5th 1157 , the Court of Appeal 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 court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373.” (Id. at p. 1164.) The Dueñas court further held “the execution of any restitution fine imposed under [Penal Code 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

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

2022(People v. Kingston (2019) 41 Cal.App.5th 272 , 279-282; People v. Hicks (2019) 40 Cal.App.5th 320 , 326-329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055 , 1067-1069; People v. Caceres (2019) 39 Cal.App.5th 917 , 928; People v. Lowery (2020) 43 Cal.App.5th 1046 , 1056-1057; People v. Adams (2020) 44 Cal.App.5th 828 , 831-832; People v. Pack- Ramirez (2020) 56 Cal.App.5th 851 , 860-861; People v. Cota (2020) 45 Cal.App.5th 786 , 793-795.) Thus, we reject defendant’s claim that due process entitles him to an ability to pay hearing. 16 IV Ineffective Assista

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 .) 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.

2022(People v. Kingston (2019) 41 Cal.App.5th 272 , 279-282; People v. Hicks (2019) 40 Cal.App.5th 320 , 326-329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055 , 1067-1069; People v. Caceres (2019) 39 Cal.App.5th 917 , 928; People v. Lowery (2020) 43 Cal.App.5th 1046 , 1056-1057; People v. Adams (2020) 44 Cal.App.5th 828 , 831-832; People v. Pack- Ramirez (2020) 56 Cal.App.5th 851 , 860-861; People v. Cota (2020) 45 Cal.App.5th 786 , 793-795.) Thus, we reject defendant’s claim that due process entitles him to an ability to pay hearing. 16 IV Ineffective Assista

2021(See, e.g., People v. Santos (2019) 38 6 Cal.App.5th 923, 927 [applying the “principles articulated [in Dueñas]”]; id. at pp. 935-940 (dis. opn. of Elia, J.); People v. Adams (2020) 44 Cal.App.5th 828 , 832 [concluding that “Dueñas was wrongly decided”]; id. at pp. 832-833 (dis. opn. of Premo, J.); People v. Petri (2020) 45 Cal.App.5th 82 , 90 [finding that Dueñas was not “persuasive”]; id. at p. 95 (conc. & dis. opn. of Premo, J.).) The California Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47 , review granted November 13, 2019, S257844, to determine whether an ab

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

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.

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

2021In such cases, lack of a timely and meaningful objection forfeits or waives the claim.” (People v. Scott (1994) 9 Cal.4th 331, 351 .) “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.” (People v. McCullough (2013) 56 Cal.4th 589, 593 , [cleaned up].) These general forfeiture rules apply straightforwardly to a defendant 22 claiming the trial court violated their due process right or the prohibition on excessive fines by failing to h

2022Dueñas 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. ( Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1167.)5 As we explained in People v. Aviles (2019) 39 Cal.App.5th 1055 (Aviles), we believe Dueñas was wrongly decided and an Eighth Amendment analysis is more appropriate to determine whether restitution fines, fees, and assessments in a particular case are grossly disproportionate and thus excessive.

2022Approximately one week later, the trial court issued an order finding that defendant forfeited his claim for relief from the restitution fine because he failed to object and that an ability-to-pay hearing was not required under People v. Aviles (2019) 39 Cal.App.5th 1055 , 1071–1072 and People v. Son (2020) 49 Cal.App.5th 565 , 594–595 (Son).

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 ]