This is yet another one of the plethora of published opinions that splits as to whether or not Dueñas was correctly decided and whether trial courts have to determine ability to pay before they grant restitution orders. Justice Bamattre-Manoukian (joined by Justice Mihara) thinks the decision is wrong and that a determination is not required; Justice Premo thinks it's right and that it is required. The California Supreme Court, as previously noted, will eventually decide who's right. But in the meantime, add this to the list of who's on one side and who's on the other.
Plus, this case has a neat little twist that I haven't seen before. As well as an ironic one.
Defendant files the appeal to get out of a $300 restitution fine, claiming he has no ability to pay. But not only does the Court of Appeal disagree (and leave the $300), but it also -- apparently sua sponte -- increases the amount of the restitution order from $4,049.19 to $9,019.19. See Footnote 2 at Page 3 ("The felony abstract of judgment dated June 4, 2018, incorrectly states that
Pruneridge Touchstone Golf was awarded only $4,049.19 in restitution. We will direct
the trial court to prepare an amended abstract of judgment that accurately reflects the
court’s oral pronouncement.")
I can't find the briefs to ascertain whether the parties even mentioned this discrepancy (or asked for such relief) or whether the Court of Appeal simply decided to do it on its own. But what I do know is that the defendant filed an appeal to get out of a $300 liability only to find that his liability had been increased by nearly $5,000.
Definitely not a win.
