What is the test for determining whether a defendant has the ability to pay attorney fees?
California, United States of America
The following excerpt is from People v. Martinez, F061718 (Cal. App. 2012):
In assessing ability to pay, "'the court [must] consider what resources the defendant has available and which of those resources can support the required payment,' including both the defendant's likely income and his or her assets. [Citations.]" (People v. Polk (2010) 190 Cal.App.4th 1183, 1206.) A trial court's finding of present ability to pay need not be express, but may be implied "through the content and conduct of the hearings. [Citation.] But any finding of ability to pay must be supported by substantial evidence. [Citations.]" (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398.)
In the present case, the report recommended that defendant be ordered to pay attorney fees, pursuant to section 987.8, "as determined by the court." Such a recommendation arguably placed defendant on notice that he should be prepared to proceed with the ability-to-pay hearing at the time of sentencing. (See People v. Phillips, supra, 25 Cal.App.4th at pp. 74-75.) We need not resolve that question, however, since defendant clearly was deprived of the hearing that section 987.8, subdivision (b) and due process require before an order to pay attorney fees can be imposed. The trial court
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