What is the test for determining whether a defendant has the ability to pay a restitution fine?

California, United States of America


The following excerpt is from People v. Masbruch, 35 Cal.App.4th 139, 41 Cal.Rptr.2d 381 (Cal. App. 1995):

2) A sentencing court is not under any constitutional or statutory duty to conduct a formal evidentiary hearing on ability to pay or any other aspect of a restitution fine unless the fine is made a condition of probation. Due process is afforded if a defendant is given notice of the amount of the fine and a reasonable opportunity to respond at the sentencing hearing. (Cf. People v. Wyman (1985) 166 Cal.App.3d 810, 815-816, 212 Cal.Rptr. 668.)

3) The ability to pay finding need not be express; it may be implied. (People v. Frye (1994) 21 Cal.App.4th 1483, 1485-1486, 27 Cal.Rptr.2d 52.)

Page 393

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