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):

6) Ability to pay a restitution fine need not be immediate. Factors such as the defendant's age, physical and mental condition, length of prison sentence, education, work history, family support liabilities and accumulated assets are all relevant to the defendant's ability to pay a restitution fine. (See People v. Staley (1992) 10 Cal.App.4th 782, 785-786, 12 Cal.Rptr.2d 816.)

We reject appellant's argument that an express finding or on-the-record consideration of a defendant's ability to pay is essential. The statute does not require an express finding (People v. Frye, supra, 21 Cal.App.4th 1483, 1485-1486, 27 Cal.Rptr.2d 52) and, in any event, appellant has waived any objection to the adequacy of the procedure employed in assessing the restitution fine by failing to object below.

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