Ability to Pay

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State Statute Description/Statute Name Statutory language Level of offense Definition of ability to pay Timeline Burden of proof Method of determination Mandatory Remedies if unable to pay
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California Cal. Gov. Code § 27712(a) Public Defender: Determination of ability to pay for costs of counsel at end of proceedings; Order for payment, and enforcement thereof

(a) In any case in which a party is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the proceedings, or

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upon the withdrawal of the public defender or private counsel, after a hearing on the matter, the court may make a determination of the ability of the party to pay all or a portion of the cost of such legal assistance. Such determination of ability to pay shall only be made after a hearing conducted according to the provisions of Section 987.8 of the Penal Code; except that, in any court where a county financial evaluation officer is available, the court shall order the party to appear before the county financial evaluation officer, who shall make an inquiry into the party’s ability to pay this cost as well as other court-related costs. The party shall have the right to dispute the county financial evaluation officer’s evaluation, in which case he or she shall be entitled to a hearing pursuant to Section 27752. If the party agrees with the county financial evaluation officer’s evaluation, the county financial evaluation officer shall petition the court for an order to that effect. The court may, in its discretion, hold one such additional hearing, or the county financial evaluation officer may hold one such additional evaluation, within six months of the conclusion of the criminal proceedings. If the court determines, or upon petition by the county financial evaluation officer is satisfied, that the party has the ability to pay all or part of the cost, it shall order the party to pay the sum to the county in any installments and manner which it believes reasonable and compatible with the party’s ability to pay. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order shall not be enforced by contempt.The court, or in a county which has a county financial evaluation officer, the board of supervisors, shall adjudge a standard by which to measure the cost of legal assistance provided, which standard shall reflect the actual cost of legal services provided. Appointed counsel shall provide evidence of the services performed pursuant to such standard.

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NA

Not provided for Not provided for Determined by judge after hearing Yes

Fee may be reduced

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California Cal. Pen. Code § 273.1(e) Treatment program for child abusers on probation

(e) The defendant shall pay for the full costs of the treatment program, including any drug testing. However, the court may waive any portion or all of that financial responsibility upon

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a finding of an inability to pay. Upon the request of the defendant, the court shall hold a hearing to determine the defendant’s ability to pay for the treatment program. At the hearing the court may consider all relevant information, but shall consider the impact of the costs of the treatment program on the defendant’s ability to provide food, clothing, and shelter for the child injured by a violation of Section 273a or 273d. If the court finds that the defendant is unable to pay for any portion of the costs of the treatment program, its reasons for that finding shall be stated on the record. In the event of this finding, the program fees or a portion thereof shall be waived.

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NA

Not provided for Not provided for Determined by judge after hearing Yes

The program fees or a portion thereof shall be waived.

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California Cal. Pen. Code § 1203.1e(b) Payment by county prisoner of costs of parole supervision

(b) If the court determines that the person has the ability to pay all or part of the costs, the court may set the amount to be reimbursed and order

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the person to pay that sum to the county in the manner in which the court believes reasonable and compatible with the person’s financial ability. In making a determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon the person and any amount the person has been ordered to pay in restitution.If practicable, the court shall order payments to be made on a monthly basis as directed by the court. Execution may be issued on the order in the same manner as a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.

All

(c) For the purposes of this section, “ability to pay” means the overall capability of the person to reimburse the costs, or a portion of the costs, of providing parole

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supervision and shall include, but shall not be limited to, consideration of all of the following factors: (1) Present financial position. (2) Reasonably discernible future financial position. In no event shall the board consider a period of more than six months from the date of the hearing for purposes of determining reasonably discernible future financial position. (3) Likelihood that the person shall be able to obtain employment within the six-month period from the date of the hearing. (4) Any other factor or factors which may bear upon the person’s financial capability to reimburse the county for the costs. (d) At any time during the pendency of the order made under this section, a person against whom an order has been made may petition the court to modify or vacate its previous order on the grounds of a change of circumstances with regard to the person’s ability to pay. The court shall advise the person of this right at the time of making the order.

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

Reduced fee/installment plan

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California Cal. Pen. Code § 1203.1b(b)-(c) Payment of probation costs as condition of probation

(b) When the defendant fails to waive the right provided in subdivision (a) to a determination by the court of his or her ability to pay and the payment amount,

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the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative. The following shall apply to a hearing conducted pursuant to this subdivision:(1) At the hearing, the defendant shall be entitled to have, but shall not be limited to, the opportunity to be heard in person, to present witnesses and other documentary evidence, and to confront and cross-examine adverse witnesses, and to disclosure of the evidence against the defendant, and a written statement of the findings of the court or the probation officer, or his or her authorized representative. (2) At the hearing, if the court determines that the defendant has the ability to pay all or part of the costs, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. (3) At the hearing, in making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution. (4) When the court determines that the defendant’s ability to pay is different from the determination of the probation officer, the court shall state on the record the reason for its order.

(c) The court may hold additional hearings during the probationary, conditional sentence, or mandatory supervision period to review the defendant’s financial ability to pay the amount, and in the manner, as set by the probation officer, or his or her authorized representative, or as set by the court pursuant to this section.

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(e) The term “ability to pay” means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation, preparing the

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pre plea or presentence report, processing a jurisdictional transfer pursuant to Section 1203.9, processing requests for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, and probation supervision, conditional sentence, or mandatory supervision, and shall include, but shall not be limited to, the defendant’s: (1) Present financial position. (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. (4) Any other factor or factors that may bear upon the defendant’s financial capability to reimburse the county for the costs.

Not provided for Not provided for Determined by judge after hearing Yes

Court may reduce payments or allow payment in installments.

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California Cal. Pen. Code § 1203.1c(a) Payment of costs of incarceration in local facility as condition of probation

(a) In any case in which a defendant is convicted of an offense and is ordered to serve a period of confinement in a county jail, city jail, or other

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local detention facility as a term of probation or a conditional sentence, the court may, after a hearing, make a determination of the ability of the defendant to pay all or a portion of the reasonable costs of such incarceration, including incarceration pending disposition of the case. The reasonable cost of such incarceration shall not exceed the amount determined by the board of supervisors, with respect to the county jail, and by the city council, with respect to the city jail, to be the actual average cost thereof on a per-day basis. The court may, in its discretion, hold additional hearings during the probationary period. The court may, in its discretion before such hearing, order the defendant to file a statement setting forth his or her assets, liability and income, under penalty of perjury, and may order the defendant to appear before a county officer designated by the board of supervisors to make an inquiry into the ability of the defendant to pay all or a portion of such costs. At the hearing, the defendant shall be entitled to have the opportunity to be heard in person or to be represented by counsel, to present witnesses and other evidence, and to confront and cross-examine adverse witnesses. A defendant represented by counsel appointed by the court in the criminal proceedings shall be entitled to such representation at any hearing held pursuant to this section. If the court determines that the defendant has the ability to pay all or a part of the costs, the court may set the amount to be reimbursed and order the defendant to pay that sum to the county, or to the city with respect to incarceration in the city jail, in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.If practicable, the court shall order payments to be made on a monthly basis and the payments shall be made payable to the county officer designated by the board of supervisors, or to a city officer designated by the city council with respect to incarceration in the city jail. A payment schedule for reimbursement of the costs of incarceration pursuant to this section based upon income shall be developed by the county officer designated by the board of supervisors, or by the city council with respect to incarceration in the city jail, and approved by the presiding judge of the superior court in the county.

All

(c) For the purposes of this section, “ability to pay” means the overall capability of the person to reimburse the costs, or a portion of the costs, of providing parole

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supervision and shall include, but shall not be limited to, consideration of all of the following factors: (1) Present financial position. (2) Reasonably discernible future financial position. In no event shall the board consider a period of more than six months from the date of the hearing for purposes of determining reasonably discernible future financial position. (3) Likelihood that the person shall be able to obtain employment within the six-month period from the date of the hearing. (4) Any other factor or factors which may bear upon the person’s financial capability to reimburse the county for the costs. (d) At any time during the pendency of the order made under this section, a person against whom an order has been made may petition the court to modify or vacate its previous order on the grounds of a change of circumstances with regard to the person’s ability to pay. The court shall advise the person of this right at the time of making the order.

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

Reduced fee/installment plan

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California Cal. Pen. Code § 1203.1m(b) Defendant to pay cost of imprisonment

(b) The court may, in its discretion before any hearing, order the defendant to file a statement setting forth his or her assets, liability, and income, under penalty of perjury.

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At the hearing, the defendant shall have the opportunity to be heard in person or through counsel, to present witnesses and other evidence, and to confront and cross-examine adverse witnesses. A defendant who is represented by counsel appointed by the court in the criminal proceedings shall be entitled to representation at any hearing held pursuant to this section. If the court determines that the defendant has the ability to pay all or a part of the costs, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the Department of Corrections for deposit in the General Fund in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. Execution may be issued on the order in the same manner as on a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.

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(e) For the purposes of this section, in determining a defendant’s ability to pay, the court shall consider the overall ability of the defendant to reimburse all or a portion

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of the costs of imprisonment in light of the defendant’s present and foreseeable financial obligations, including family support obligations, restitution to the victim, and fines, penalties, and other obligations to the court, all of which shall take precedence over a reimbursement order made pursuant to this section.(f) For the purposes of this section, in determining a defendant’s ability to pay, the court shall not consider the following: (1) The personal residence of the defendant, if any, up to a maximum amount of the median home sales price in the county in which the residence is located. (2) The personal motor vehicle of the defendant, if any, up to a maximum amount of ten thousand dollars ($10,000). (3) Any other assets of the defendant up to a maximum amount of the median annual income in California.

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

fee will be reduced

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California Cal. Pen. Code § 987.8(b), (d)-(f) Of the Arraignment of the Defendant: Determination of assets subject to attachment; Determination and order for payment of costs of counsel; Proceedings; Enforcement

(b) If a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court

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or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.

(d) If the defendant, after having been ordered to appear before a county officer, has been given proper notice and fails to appear before a county officer within 20 working days, the county officer shall recommend to the court that the full cost of the legal assistance be ordered to be paid by the defendant. The notice to the defendant shall contain all of the following: (1) A statement of the cost of the legal assistance provided to the defendant as determined by the court. (2) The defendant’s procedural rights under this section. (3) The time limit within which the defendant’s response is required. (4) A warning that if the defendant fails to appear.

(e)(1) At a hearing, the defendant shall be entitled to, but shall not be limited to, all of the following rights: (A) The right to be heard in person. (B) The right to present witnesses and other documentary evidence. (C) The right to confront and cross-examine adverse witnesses. (D) The right to have the evidence against him or her disclosed to him or her. (E) The right to a written statement of the findings of the court. (2) If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendant’s financial ability. Failure of a defendant who is not in custody to appear after due notice is a sufficient basis for an order directing the defendant to pay the full cost of the legal assistance determined by the court. The order to pay all or a part of the costs may be enforced in the manner provided for enforcement of money judgments generally but may not be enforced by contempt.

(f) Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. The notice shall inform the defendant that the order shall have the same force and effect as a judgment in a civil action and shall be subject to enforcement against the property of the defendant in the same manner as any other money judgment.

Felony

(g)(2) “Ability to pay” means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and

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shall include, but not be limited to, all of the following: (A) The defendant’s present financial position. (B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison, or to county jail for a period longer than 364 days, including, but not limited to, a sentence imposed pursuant to subdivision (h) of Section 1170, shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. (D) Any other factor or factors that may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.

Before imposition of fine or fee Not provided for Determined by judge after hearing Yes

Court may waive or reduce fee

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California Cal. Pen. Code § 1209 Payment of administrative costs by prisoner permitted to continue regular employment

Upon conviction of any criminal offense for which the court orders the confinement of a person in the county jail, or other suitable place of confinement, either as the final

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sentence or as a condition of any grant of probation, and allows the person so sentenced to continue in his or her regular employment by serving the sentence on weekends or similar periods during the week other than their regular workdays and by virtue of this schedule of serving the sentence the prisoner is ineligible for work furlough under Section 1208, the county may collect from the defendant according to the defendant's ability to pay so much of the costs of administration of this section as are allocable to such defendant. The amount of this fee shall not exceed the actual costs of such confinement and may be collected prior to completion of each weekly or monthly period of confinement until the entire sentence has been served, and the funds shall be deposited in the county treasury pursuant to county ordinance.

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In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any

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amount the defendant has been ordered to pay in restitution.As used in this section, the term “ability to pay” means the overall capability of the defendant to reimburse the costs, or a portion of the costs, and shall include, but shall not be limited to, the following: (a) The defendant's present financial position. (b) The defendant's reasonably discernible future financial position.  In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining reasonably discernible future financial position. (c) Likelihood that the defendant shall be able to obtain employment within the six-month period from the date of the hearing. (d) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs.

Not provided for Not provided for Determined by judge after hearing Yes

reduce fee

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California Cal. Pen. Code § 1001.53 Diversion of Misdemeanor Offenders: Hearing and determination;Payment of diversion costs; Exoneration of bond; Continuance of proceedings

The court shall hold a hearing and, after consideration of the probation department’s report, and any other relevant information, shall determine if the defendant consents to further proceedings under this

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chapter and waives his or her right to a speedy trial. If the court orders a defendant to be diverted, the court may make inquiry into the financial condition of the defendant, and upon a finding that the defendant is able in whole or in part, to pay the reasonable cost of diversion, the court may order him or her to pay all or part of such expense. The reasonable cost of diversion shall not exceed the amount determined to be the actual average cost of diversion services.

Misdemeanor

Not provided for.

At enforcement of fine or fee Not provided for Determined by judge after hearing No

None