Courts must consider a Defendant’s inability to pay before imposing payments

People v. Kopp (Cal., Dec. 29, 2025, No. S257844) 2025 WL 3755596, at *1–5

Summary: Co-defendant Hernandez challenged various punitive fines, along with other ancillary costs, ordered as part of a criminal sentencing. The California Supreme Court held that a challenge to the amount of a criminal fine should initially be reviewed under the excessive fines provisions of the United States and California Constitutions.

The imposition of ancillary payments raises separate equal protection issues. A court must consider a defendant’s inability to pay before imposing a court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)) or a court facilities assessment (Gov. Code, § 70373, subd. (a)(1)). The Court urged the Legislature to revisit issues surrounding court-ordered ancillary payments in criminal cases and address them in a more comprehensive manner.

Facts and Procedure

At the sentencing hearing, Hernandez’s counsel asked the court to impose a minimum restitution fine and stay any additional payment orders “due to [Hernandez’s] inability to pay.” The court denied the request, stating: “My general understanding is the determination of inability to pay occurs not necessarily on the date of sentencing but at a later date when the fine is or may be imposed. There is a possibility that the defendant may be able to earn funds while he is incarcerated, so I’m going to decline to make that finding at this time.”

On appeal, Hernandez challenged the monetary orders because the court did not first find he had an ability to pay them. The Court of Appeal majority held the trial court should have considered whether Hernandez had the ability to pay before imposing ancillary costs but rejected his claim that such a finding was required as to fines. It clarified, however, that defendant could challenge the fines under the federal and state constitutional excessive fines clauses. The matter was remanded for resentencing  and further proceedings as to the imposed fines and ancillary costs. The Supreme Court granted Hernandez’s petition for review.

Statutory Framework of court-ordered payments: fines, ancillary costs and victim restitution.

A person convicted of a crime can, and in some cases must, be ordered to pay punitive fines along with other non-punitive ancillary costs. Some statutes require the imposition of fines and ancillary costs regardless of a defendant’s ability to pay. Other statutes require a finding of the ability to pay. Hernandez challenged all his court-ordered payments because the court did not consider whether he had the ability to pay them.

Statutory provisions define criminal offenses and authorize fines as punishment. “Criminal fines … are penalties inflicted by the sovereign for the commission of offenses.” (Southern Union Co. v. United States (2012) 567 U.S. 343, 349.; People v. Alford (2007) 42 Cal.4th 749, 757 (Alford).) In addition to any jail or prison time, the amount of an applicable fine is established by statute. Fines and/or incarceration may also be imposed as conditions of probation. (Pen. Code, § 1203.1, subd. (a).)

Ancillary costs are generally not intended to punish the commission of a crime but are intended to reimburse governmental agencies for expenditures. Statutes may variously refer to them as “fines,” “fees,” “assessments,” or “costs.” A “fine” is properly understood as a payment imposed as punishment for criminal conduct. The distinction is important in determining whether a form of required payment is initially challenged under, and then reviewed under, the constitutional excessive fines clauses, or under the constitutional provision for equal protection. The Court use the term “fine” to refer to a legislatively provided punishment following a criminal conviction. Direct victim “[r]estitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.” (Cal. Const., art. I, § 28, subd. (b)(13)(B); see Pen. Code, § 1202.4, subd. (f).) A court may also impose victim restitution as a condition of probation. (Pen. Code, § 1203.1, subd. (b).)

Fines

By statute, the court must determine whether a defendant has the ability to pay the drug program fee before imposing it. (Health & Saf. Code, § 11372.7, subd. (b).) These are fines, penalties, and punishment.

The court also imposed a $10,000 “restitution fine.” (Pen. Code, § 1202.4, subd. (b)(1).) A restitution fine is distinguished from orders that restitution be made to a victim or to the state’s Restitution Fund. For felony convictions, the required fine is not less than $300 and not more than $10,000. (Pen. Code, § 1202.4, subd. (b)(1).)

By statute, “[a] defendant’s inability to pay [the minimum $300 fine] shall not be considered a compelling and extraordinary reason not to impose a restitution fine.” (Pen. Code, § 1202.4, subd. (c).) However, an inability to pay may be considered when “increasing the amount of the restitution fine in excess of the minimum” amount. The trial court declined Hernandez’s request to impose the minimum amount and instead ordered the maximum fine of $10,000.

Ancillary Costs

Hernandez was also ordered to pay ancillary costs.

Case law establishes that these costs do not constitute punishment. (See Alford, supra, 42 Cal.4th at pp. 757–759, 68 Cal.Rptr.3d 310, 171 P.3d 32; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111–1112, 112 Cal.Rptr.3d 884; see also Kopp, at p. 95, 250 Cal.Rptr.3d 852.)

Victim Restitution

Restitution compensates crime victims for economic loss caused by an offense. “[A] defendant’s inability to pay shall not be a consideration in determining the amount of a restitution order” (Pen. Code, § 1202.4, subd. (g)). A victim restitution order is neither a fine nor an ancillary cost. It is also different from an order to pay a restitution fine. The trial court here did not order Hernandez to pay victim restitution.

Analysis

The impositions that are mandatory without consideration of an ability to pay: the $50 lab fee (with attached $155 of penalty assessments), and the $40 court operations and $30 court facilities assessments, multiplied by defendant’s three unstayed offenses, are at issue here. Also, the court operations and facilities assessments imposed without considering inability to were challenged as violations of equal protection.

Disposition

Because of Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8, subdivision (a)(1) or a court facilities assessment under Government Code section 70373, subdivision (a)(1). The court should allow the parties to present and contest any relevant evidence or argument on this question.

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