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People v. Johnson

Court of Appeal of California, First Appellate District, Division Four

May 10, 2019, Opinion Filed


Case Summary


HOLDINGS: [1]-Defendant's challenge to the imposition of a restitution fine, a court security fee, and a court security fee at sentencing was rejected because not only did the record show he had some past income-earning capacity, but going forward he would have the ability to earn prison wages over a sustained period, and the idea that he could not afford to pay $370 while serving an eight-year prison sentence was unsustainable; [2]-Thus, even if it were assumed he was correct that he suffered a due process violation when the trial court imposed that rather modest financial burden on him without taking his ability to pay into account, the error was harmless because he had ample time to pay it from a readily available source of income while incarcerated.


Judgment affirmed.

LexisNexis® Headnotes



Criminal Law & Procedure > ... > Reviewability > Preservation for Review > Exceptions to Failure to Object

HN1  Preservation for Review, Exceptions to Failure to Object

There is a well-established exception to the forfeiture doctrine where a change in the law—warranting the assertion of a particular objection, where it would have been futile to object before—was not reasonably foreseeable.


Criminal Law & Procedure > Sentencing > Appeals > Appealability

Criminal Law & Procedure > Sentencing > Restitution

Criminal Law & Procedure > Appeals > Reviewability > Preservation for Review

HN2  Appeals, Appealability

For restitution fines above the statutory minimum, the statutory scheme expressly permits sentencing courts to take the defendant's ability to pay into account in setting the fine. Pen. Code, § 1202.4, subd. (c). The distinction between minimum and above minimum restitution fines has consequences for the applicability of forfeiture doctrine.


Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

Criminal Law & Procedure > Sentencing > Costs

Criminal Law & Procedure > Sentencing > Restitution

HN3  Procedural Due Process, Scope of Protection

Due process 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 Pen. Code, § 1465.8, and Gov. Code, § 70373. Although Pen. Code, § 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.

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35 Cal. App. 5th 134 ; 247 Cal. Rptr. 3d 1 ; 2019 Cal. App. LEXIS 426 ; 2019 WL 2066683

THE PEOPLE, Plaintiff and Respondent, v. TYRONE JOHNSON, Defendant and Appellant.


Subsequent History: Time for Granting or Denying Review Extended People v. Johnson, 2019 Cal. LEXIS 5943 (Cal., Aug. 1, 2019)

Review denied by People v. Johnson, 2019 Cal. LEXIS 6022 (Cal., Aug. 14, 2019)

Prior History:  [1] Superior Court of San Francisco County, No. 225044, Loretta M. Giorgi, Judge.