Filed 3/26/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

NARCISCO CASTELLANO,

Defendant and Appellant.

 B286317

 (Los Angeles County

 Super. Ct. No. BA456838)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Laura F. Priver, Judge. Remanded with 

directions.

Aurora Elizabeth Bewicke, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Senior Assistant 

 

*

Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of parts 1 and 2 of the Factual and Procedural Background and 

parts 1 through 3 of the Discussion. 
2

Attorney General, Shawn McGahey Webb, Supervising Deputy 

Attorney General, David W. Williams and Jonathan J. Kline, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________

A jury convicted Narcisco Castellano of possession of 

cocaine base for sale. After admitting the truth of several prior 

conviction and prior prison term enhancement allegations, 

Castellano was sentenced to three years in county jail plus 

three years of supervised release. On appeal Castellano 

primarily contends the People’s expert witness improperly relied 

on race and/or national origin in forming an opinion as to the 

nature of the conduct described in a hypothetical question, in 

violation of Castellano’s constitutional rights to due process and 

equal protection. Castellano also contends his trial counsel 

provided ineffective assistance by failing to move to exclude the 

improper testimony and by eliciting similar testimony during 

cross-examination of the expert witness. In a supplemental brief 

filed after this court decided People v. Dueñas (2019) 

30 Cal.App.5th 1157 (Dueñas), Castellano contends the trial 

court violated his rights to due process and equal protection by 

imposing certain fines, fees and assessments absent evidence of 

his ability to pay them. We affirm Castellano’s conviction and 

remand for the trial court to give Castellano the opportunity to 

request a hearing and to present evidence demonstrating his 

inability to pay the applicable fines, fees and assessments. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

An information filed May 26, 2017 charged Castellano with 

possession of cocaine base for purpose of sale (Health & Saf. 
3

Code, § 11351.5). It specially alleged Castellano had suffered 

five prior drug-related convictions within the meaning of Health 

and Safety Code section 11370.2, subdivision (a), and had served 

three prior separate prison terms for felonies within the meaning 

of Penal Code section 667.5, subdivision (b). Castellano pleaded 

not guilty and denied the special allegations.

2. Evidence at Trial

While working undercover near the intersection of 5th and 

San Pedro Streets in an area of downtown Los Angeles known as 

Skid Row, Los Angeles Police Officer Jose Galvez observed a 

middle-aged Cuban man he knew hand Castellano a clear plastic 

bag, which Castellano put in his left front pocket. No money was 

transferred between the two men. Using binoculars, Galvez saw 

the plastic bag contained off-white solids resembling cocaine 

base. Galvez relayed a call to Los Angeles Police Officer Adolfo

Pacheco, who immediately detained Castellano. During a search 

of Castellano’s left front pocket, Pacheco discovered a clear 

plastic bag containing 41 small separately wrapped packages 

(“bindles”) of white solids later determined to be cocaine base. 

Testifying as an expert on the use and sale of controlled 

substances,1 Officer Galvez stated a usable amount of cocaine 

 

1 Officer Galvez testified as both a percipient witness and as 

an expert. Regarding his expertise, Galvez testified he had 

worked as a police officer for 11 years and more than five years in 

narcotics divisions. As part of his specialized training, he had 

taken several classes relating to use, production, packaging and 

sale of cocaine base and other controlled substances. He also 

purchased cocaine base and other controlled substances in an 

undercover capacity and had been involved in more than 

400 arrests involving cocaine base alone. Based on this 
4

base can be as small as .02 grams; the package Castellano 

possessed weighed 16.17 gross grams (inclusive of the wrapping);

and the amount in Castellano’s possession was significantly 

greater than what an individual would typically possess for 

personal use. Galvez also testified that the area where the 

transaction occurred was a high crime area controlled mostly by 

Cubans selling crack cocaine. Given a hypothetical closely 

resembling the facts in this case,2 Galvez opined the cocaine base 

was possessed for sale. Asked to elaborate on the basis for his 

opinion, Galvez explained, “[My opinion is] [t]hat he possessed it 

for the purpose of sales based on the area, the area of 5th and 

San Pedro, based on my, you know, total seven years working in 

that area it’s a high narcotic area where I said that specifically 

that block is known for the sales of cocaine base by male 

Hispanics that are mostly Cuban. Also the amount, the 

41 individually packaged bindles they are already prepackaged 

ready to sell. A known street user wouldn’t have that large 

amount of cocaine base or buy that much at one time. So based 

on all that I formed the opinion he possessed it for sales.” 

 

testimony, the court overruled defense counsel’s foundation 

objection. 

2

The prosecutor asked Officer Galvez, “Assume that a male 

individual is seen on 5th Street by the intersection of San Pedro 

which is a known high narcotics area that traffics in the sale of 

crack cocaine, cocaine base, that individual is seen on 5th Street 

receiving a bindle containing 41 individually wrapped baggies of 

cocaine base and the approximate weight, total weight, of those 

41 bindles is approximately 16 gross grams. Do you have an 

opinion as to why that individual possessed the 41 bindles of rock 

cocaine?” 
5

Defense counsel did not object to this testimony. No evidence 

was presented that Castellano is Cuban.

Officer Galvez also initially testified on direct examination 

that Castellano had $3,394 in small denominations on his person 

at the time of his arrest, a fact that “enhanced [Galvez’s] opinion”

that Castellano possessed the cocaine base for purpose of sale. 

However, confronted on cross-examination with his written 

report of Castellano’s arrest, which stated that no money had 

been found on Castellano, Galvez admitted his arrest report was 

correct and his earlier testimony had been mistaken. He 

explained he had two different hearings to attend that day and 

had confused the two cases in this regard. The absence of money 

on Castellano’s person, he then stated, did not alter his opinion 

that Castellano possessed the 41 individually wrapped packages 

of cocaine base for purpose of sale. 

Castellano, who used a Spanish language interpreter 

throughout the trial, did not testify and did not present any 

evidence in his defense. The defense theory of the case was that 

Castellano possessed the drugs for personal use. 

3. Verdict and Sentence 

The jury found Castellano guilty of possession of a 

controlled substance for purpose of sale. In a bifurcated 

proceeding after waiving his right to a jury trial, Castellano 

admitted the truth of each of the special prior conviction and 

prior prison term enhancement allegations. The court struck 

each of the controlled substance recidivism enhancements; found 

two of the three specially alleged prior prison term enhancements 

true; and sentenced Castellano to a term of six years, split 

between three years in local custody and three years on 
6

mandatory supervised release.3 The trial court imposed a $30 

court facilities assessment (Gov. Code, § 70373); a $40 court 

operations assessment (Pen. Code, § 1465.8); a $50 criminal 

laboratory analysis fee (Health & Saf. Code, § 11372.5), which is 

subject to an additional state court construction penalty (Gov. 

Code, § 70372); and a $300 restitution fine (the statutory 

minimum) (Pen. Code, § 1202.4, subd. (b)). The court imposed 

and suspended a corresponding $300 parole revocation fine (Pen. 

Code, § 1202.45). Castellano did not object to the imposition of 

these assessments, fines and fees. 

DISCUSSION

1. Castellano Has Forfeited His Challenge to Officer 

Galvez’s Testimony Because He Did Not Object at Trial 

Citing testimony by Officer Galvez that “Cubans are known 

to hang out in the area [where the transaction occurred] and sell 

crack cocaine,” the area was known for the sale of crack cocaine 

“by male Hispanics that are mostly Cuban,” and Galvez’s “yes” 

responses to questions on cross-examination whether the area 

was “controlled by Cubans” and that one “indicia of sales” in that 

area “would be nationality,” Castellano contends Galvez, in 

violation of due process and equal protection, improperly relied 

on Castellano’s national origin in opining he possessed the 

cocaine for sale. However, Castellano did not object or move to 

strike or exclude that testimony on these grounds at trial.

Accordingly, his challenge to that evidence is forfeited. (Evid. 

Code, § 353 [appeal not subject to reversal for erroneous 

 

3

The court imposed the upper term of four years for 

Castellano’s underlying offense, plus one year for each of the 

prior prison term enhancement allegations found true. 
7

admission of evidence absent specific objection]; see People v. 

Simon (2016) 1 Cal.5th 98, 139 [failure to raise constitutional 

challenge to victim impact evidence at trial resulted in forfeiture 

of that claim on appeal]; People v. Abel (2012) 53 Cal.4th 891, 924 

[“[a] defendant who fails to make a timely objection or motion to 

strike evidence may not later claim that the admission of the 

evidence was error”]; People v. Partida (2005) 37 Cal.4th 428, 

438-439 [appellant forfeited contention evidence was admitted in 

violation of due process when no objection made at trial]; People 

v. Heard (2003) 31 Cal.4th 947, 972, fn. 12 [same, citing cases].)

In arguing the forfeiture doctrine is inapplicable, 

Castellano contends defense counsel’s foundation objection 

preserved the issue for appeal. However, that objection related to 

Officer Galvez’s level of expertise. Castellano did not challenge 

the expert testimony on the ground it improperly considered race 

and/or national origin. (Evid. Code, § 353; see People v. Stevens 

(2015) 62 Cal.4th 325, 333 [courts will consider a claim of 

erroneously admitted evidence only when the original objection to 

the evidence was both timely and specific]; People v. Partida, 

supra, 37 Cal.4th at p. 437 [although defendant need not assert 

constitutional objection to preserve that issue on appeal if 

objection to the testimony in question was made on substantially 

similar ground under state law, “to the extent defendant asserts 

a different theory for exclusion than he asserted at trial, that 

assertion is not cognizable”].) 

Castellano asserts the absence of a specific objection is 

immaterial because the court had assured him “any objection,”

regardless of the ground, would be sufficient to avoid forfeiture. 

That characterization of the record misapprehends the court’s 

clear pronouncements. In pretrial remarks to counsel concerning 
8

its trial management preferences, the court stated, “It’s the 

court’s position any objection would preserve your rights to 

appeal. If it’s something you need a continuing objection to, I 

don’t have a problem with [that]. You can ask for that. I think it 

saves time in terms of judicial economy and frustration on the 

part of the jurors instead of having objections over and over and 

over again.” When the court’s pronouncements are viewed as a 

whole and in context, the meaning is clear: A single objection to 

particular testimony would preserve the issue challenged; and a 

continuing objection would be granted when appropriate to 

facilitate trial management and avoid unnecessary interruptions. 

Nothing in the court’s statements suggested Castellano was 

relieved of the obligation to make specific objections to specific 

testimony (whether by an initial or continuing objection) to 

preserve that issue for appeal. (See People v. Ervine (2009) 

47 Cal.4th 745, 783 [“[w]e have long held that the proponent of 

evidence must identify the specific ground of admissibility at trial 

or forfeit that basis of admissibility on appeal”; “‘[a] party cannot 

argue the court erred in failing to conduct an analysis it was not 

asked to conduct’”].) 

2. Castellano Has Not Demonstrated His Counsel Was 

Constitutionally Ineffective 

Castellano alternatively contends his counsel’s failure to 

move to strike/exclude Officer Galvez’s national-origin-related 

testimony on direct examination, as well as his counsel’s 

introduction of similar testimony on cross-examination,

amounted to ineffective assistance of counsel. “To establish 

ineffective assistance of counsel, a defendant must show that 

(1) counsel’s representation fell below an objective standard of 

reasonableness under prevailing professional norms, and 

(2) counsel’s deficient performance was prejudicial, i.e., there is a 
9

reasonable probability that, but for counsel’s failings, the result 

would have been more favorable to the defendant. [Citation.] A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” (People v. Rices (2017) 4 Cal.5th 49, 

80 [internal quotation marks omitted]; see Strickland v. 

Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 

674].) “‘“Whether to object to inadmissible evidence is a tactical 

decision; because trial counsel’s tactical decisions are accorded 

substantial deference [citations], failure to object seldom 

establishes counsel’s incompetence.”’” (Rices, at p. 80.) 

Relying on Buck v. Davis (2017) __ U.S. __ [137 S.Ct. 759, 

197 L.Ed.2d 1], Castellano contends there could have been no 

tactical reason for his counsel’s failure to move to strike the 

improper aspects of Officer Galvez’s testimony on direct 

examination, let alone to introduce additional harmful 

information on cross-examination. In Buck defense counsel 

introduced testimony from his own expert witness during a 

sentencing hearing in a capital case that the defendant’s race was 

a predictive factor for future violence. The United States 

Supreme Court held the inexplicable introduction of race-based 

propensity evidence by defense counsel was a patently clear case 

of ineffective assistance of counsel. That testimony, fueling a 

particularly potent and noxious racial stereotype that AfricanAmerican men were violence prone, effectively told the jury it 

could sentence the defendant to death based on nothing more 

than the color of the defendant’s skin. (Id. at pp. 776-777.) 

As Castellano observes, several federal jurisdictions have 

similarly condemned an expert’s use of racial and ethnic 

stereotypes to opine on criminal culpability. (See United States v. 

Cabrera (9th Cir. 2000) 222 F.3d 590, 596 [federal law 
10

enforcement expert witness who frequently referred to 

defendant’s Cuban origins and testified that large populations of 

drug traffickers were of Cuban descent improperly injected 

national origin into the trial in violation of due process and equal 

protection]; United States v. Vue (8th Cir. 1994) 13 F.3d 1206, 

1213 [when defendants accused of drug trafficking were of 

Hmong descent, expert testimony that 95 percent of opium 

smuggling in the same geographic area involved Hmong people 

violated due process; the “injection of ethnicity into the trial 

clearly invited the jury to put the Vues’ racial and cultural 

background into the balance in determining their guilt”]; United 

States v. Cruz (2d Cir. 1992) 981 F.2d 659, 664 [in trial involving 

Dominican defendant, expert’s description of area where drug 

transaction occurred as “inundated with drug dealing” and 

“hav[ing] a very high Hispanic” and Dominican population was 

improper; “[i]njection of a defendant’s ethnicity into a trial as 

evidence of criminal behavior is self-evidently improper and 

prejudicial”].)

To be sure, testimony regarding race, ethnicity or national 

origin may be relevant in certain instances without invoking

invidious stereotypes. (See generally Bains v. Cambra 

(9th Cir. 2000) 204 F.3d 964, 974 (Bains) [distinguishing between 

permissible evidence relating to the defendant’s specific 

adherence to Sikh cultural norms and impermissible evidence 

and argument implying defendant’s criminal culpability based 

solely on the defendant’s race or ethnicity].) Nonetheless, absent 

racial stereotyping, it is difficult to conceive how Officer Galvez’s 

unsolicited remarks on the role in drug trafficking played by the 

Cuban population in the area he surveilled were relevant to the 

intent of the hypothetical individual described by the prosecutor. 
11

In significant contrast to the federal cases Castellano cites, 

however, there was no evidence that Castellano was Cuban, as 

opposed to the individual who transferred the cocaine base to 

him. Thus, to the extent Castellano’s counsel not only failed to 

move to strike/exclude Galvez’s unsolicited references to Cuban 

drug dealers on direct examination but also emphasized that 

testimony in cross-examination, it is conceivable the decision was 

strategic—Castellano was not Cuban and thus did not fit the 

expert’s description of the drug-selling population. Although 

defense counsel did not make that point during closing argument,

on this record we cannot foreclose the possibility that counsel’s 

choices in emphasizing nationality as a factor for consideration 

were tactical. (Cf. People v. Carrasco (2014) 59 Cal.4th 924, 987 

[forgoing presentation of evidence promised in opening statement 

can be reasonable tactical decision depending on the 

circumstances]; People v. Huggins (2006) 38 Cal.4th 175, 253 

[even if prosecutor’s remarks were improper, defense counsel’s 

decision to forego objection and use prosecutor’s argument to his 

advantage was reasonable tactical choice].) 

In any event, even if defense counsel’s actions and 

omissions were deficient, Castellano has not shown prejudice. 

The evidence of Castellano’s intent to sell the drugs was 

overwhelming. He was found with a significant amount of 

cocaine base, substantially greater than the amount usually 

possessed solely for personal use. The drugs were individually 

wrapped in 41 separate small plastic bags containing relatively 

similar amounts, packaging that indicated they were meant for 

sale. As for Officer Galvez’s Cuban references, neither the 

prosecutor nor defense counsel suggested during closing 

argument that the jury should consider Castellano’s national 
12

origin as a factor in determining his intent (cf. Bains, supra, 

204 F.3d at p. 970), and the jury was instructed not to let 

“nationality, national origin, race or ethnicity” or Castellano’s use 

of a Spanish language interpreter influence its decision. We 

presume the jury followed these instructions. (People v. Chism 

(2014) 58 Cal.4th 1266, 1299.) On this record, it is not 

reasonably probable that, absent Galvez’s limited testimony 

about Cuban drug sellers in the Skid Row area, Castellano would 

have received a more favorable verdict.

3. Officer Galvez Did Not Testify to False Facts or to

Previously Excluded Evidence 

Castellano contends the court abused its “gatekeeper 

function” by allowing the jury to consider Officer Galvez’s opinion 

when it was based on false facts—that Castellano had a large 

sum of money on him when he was arrested. However, 

Castellano’s counsel emphasized this mistake of fact during 

Galvez’s cross-examination, and Galvez opined again that the 

absence of money did not alter his opinion. The jury was fully 

apprised of the situation. There was no error. 

Castellano also contends Officer Galvez related previously 

excluded evidence in violation of the court’s pretrial rulings. 

Specifically, during cross-examination defense counsel asked 

Galvez to identify the factors he typically considered “to 

formulate an opinion that something is possessed for purpose of 

sales.” Galvez replied, “[It] varies from situation to situation but 

the area of where it is located, the amount of narcotics, 

sometimes prior knowledge of the individual, and my 

observations of the specific act.” Castellano insists that 

testimony concerning prior knowledge of an individual violated 

the court’s in limine ruling excluding evidence relating to 

Galvez’s prior arrests of Castellano. Contrary to Castellano’s 
13

contention, Galvez’s testimony did not suggest Galvez knew 

Castellano or had previous encounters with him. In any event, it 

was defense counsel who elicited the testimony. Accordingly, any 

error was invited. (See People v. Penunuri (2018) 5 Cal.5th 126, 

157 [when defense counsel requested the jury be told about 

defendant’s convictions so that they could properly judge his 

testimony, any error in admitting such evidence was invited].)4

4. Remand Is Necessary To Afford Castellano the 

Opportunity To Request a Hearing Concerning His 

Ability To Pay Fines, Fees and Assessments

a. Castellano’s argument under Dueñas has not been 

forfeited

In Dueñas, supra, 30 Cal.App.5th 1157 this court held it 

violated due process under both the United States and California 

Constitutions to impose a court operations assessment as 

required by Penal Code section 1465.8 or the court facilities 

assessment mandated by Government Code section 70373, 

neither of which is intended to be punitive in nature, without 

first determining the convicted defendant’s ability to pay. 

(Dueñas, at p. 1168.) A restitution fine under Penal Code 

section 1202.4, subdivision (b), in contrast, is intended to be, and 

is recognized as, additional punishment for a crime. Penal Code 

section 1202.4, subdivision (c), provides a defendant’s inability to 

 

4 Castellano does not directly contend his counsel was 

ineffective in eliciting that testimony. To the extent his Sixth 

Amendment argument in his appellate brief can be liberally 

construed to encompass that issue, the argument fails. Officer 

Galvez’s response to counsel’s entirely appropriate question was 

general and brief. Counsel was not ineffective in asking the 

question or in failing to move to strike the response. 
14

pay may not be considered a compelling and extraordinary reason 

not to impose the restitution fine; inability to pay may be 

considered only when increasing the amount of the restitution 

fine above the minimum required by statute. To avoid the 

serious constitutional question raised by these provisions, we 

held, although the trial court is required to impose a restitution 

fine, the court must stay execution of the fine until it is 

determined the defendant has the ability to pay the fine. 

(Dueñas, at p. 1172.) 

In supplemental briefing filed with the permission of this 

court, Castellano contends under Dueñas, supra, 30 Cal.App.5th 

1157, the assessments and fees imposed by the trial court should 

be reversed and the execution of the restitution fine stayed. The

People argue Castellano forfeited this issue on appeal because he 

failed to raise it in the trial court. However, at the time 

Castellano was sentenced, Dueñas had not yet been decided; and 

no California court prior to Dueñas had held it was

unconstitutional to impose fines, fees or assessments without a

determination of the defendant’s ability to pay. Moreover, none 

of the statutes authorizing the imposition of the fines, fees or 

assessments at issue authorized the court’s consideration of a 

defendant’s ability to pay. Indeed, as discussed, in the case of the 

restitution fine, Penal Code section 1202.4, subdivision (c), 

expressly precluded consideration of the defendant’s inability to 

pay. When, as here, the defendant’s challenge on direct appeal is 

based on a newly announced constitutional principle that could 

not reasonably have been anticipated at the time of trial, 

reviewing courts have declined to find forfeiture. (See, e.g., 

O’Connor v. Ohio (1966) 385 U.S. 92, 93 [87 S.Ct. 252, 17 L.Ed.2d 

189]; People v. Doherty (1967) 67 Cal.2d 9, 13-14; see generally 
15

People v. Brooks (2017) 3 Cal.5th 1, 92 [“‘[r]eviewing courts have 

traditionally excused parties for failing to raise an issue at trial 

where an objection would have been futile or wholly unsupported 

by substantive law then in existence’”].) We similarly decline to 

apply the forfeiture doctrine to Castellano’s constitutional 

challenge. 

b. A limited remand is appropriate

Relying on Dueñas, supra, 30 Cal.App.5th 1157, Castellano 

asserts the court facilities and operations assessments and the 

criminal laboratory analysis fee should be reversed, and 

execution of the restitution fine stayed, unless and until the 

People prove he has the present ability to pay the fine. Dueñas

does not support that conclusion in the absence of evidence in the 

record of a defendant’s inability to pay. In Dueñas the defendant 

challenged at the sentencing hearing the fees and fines imposed, 

asserting she was unable to pay them. (Id. at p. 1162.) She 

requested an ability-to-pay hearing and presented evidence—

which the court credited—that she lacked the ability to pay the 

fines and fees it imposed. (Id. at pp. 1160-1163.) Our holding in 

Dueñas that the fees and assessments could not constitutionally 

be assessed and that execution of the restitution fine had to be 

stayed was based on the trial court’s uncontested finding that 

Dueñas was unable to pay the amounts imposed. Here, in 

contrast, Castellano did not request an ability-to-pay hearing at 

his pre-Dueñas sentencing; thus, no evidence exists in the record 

from which to infer any findings in this regard.

Consistent with Dueñas, a defendant must in the first 

instance contest in the trial court his or her ability to pay the

fines, fees and assessments to be imposed and at a hearing 

present evidence of his or her inability to pay the amounts 
16

contemplated by the trial court. In doing so, the defendant need 

not present evidence of potential adverse consequences beyond 

the fee or assessment itself, as the imposition of a fine on a 

defendant unable to pay it is sufficient detriment to trigger due 

process protections. (Dueñas, supra, 30 Cal.App.5th at pp. 1168-

1169.) The trial court then must consider all relevant factors in 

determining whether the defendant is able to pay the fines, fees 

and assessments to be imposed. Those factors may include, but 

are not limited to, potential prison pay during the period of 

incarceration to be served by the defendant.5 If the trial court 

determines a defendant is unable to pay, the fees and 

assessments cannot be imposed; and execution of any restitution 

fine imposed must be stayed until such time as the People can 

show that the defendant’s ability to pay has been restored. (Id. at 

pp. 1168-1169, 1172.) 

 

5 A bill currently pending in the Legislature proposes the 

following factors be considered in determining a defendant’s 

ability to pay: the defendant’s present financial circumstances; 

whether the defendant is receiving any type of government 

benefits, including means-tested benefits; whether the defendant 

was represented by court-appointed counsel; the defendant’s 

reasonably discernible future financial circumstances; the 

likelihood the defendant will be able to obtain employment within 

a six-month period from the date of the court’s consideration of 

the issue; the amount of victim restitution ordered, if any; and 

any other factor that may bear upon the defendant’s inability to 

pay. (Assem. Bill No. 927 (2019-2020 Reg. Sess.) § 1.) 
17

This procedure is already standard in other contexts in 

which a litigant seeks relief or assistance based on his or her 

financial condition. A litigant seeking fee waivers, for instance, 

must complete an application for an initial fee waiver with 

information supporting his or her claim to be exempt from filing 

fees on the basis of his or her financial condition, such as receipt 

of certain public benefits, income below the federal poverty 

guidelines, or the inability to pay court fees without using 

moneys that normally would pay for the common necessaries of 

life for the applicant and his or her family. (Gov. Code, §§ 68632, 

68633.) Similarly, when a defendant requests, pursuant to 

Government Code section 27706, subdivision (a), to be 

represented by the public defender because he or she cannot 

afford to retain counsel, the trial court may require the defendant 

to file a financial statement to assist the court in making the 

final determination whether the defendant is financially able to 

employ counsel and qualifies for the services of the public 

defender. (Gov. Code, § 27707.) 

As Castellano’s conviction and sentence are not yet final, 

we remand the matter to the trial court so that he may request a

hearing and present evidence demonstrating his inability to pay 

the fines, fees and assessments imposed by the trial court. 

DISPOSITION

The conviction is affirmed, and the matter remanded to 

give Castellano the opportunity to request a hearing on his 

ability to pay the fines, fees and assessments imposed by the trial

court. If he demonstrates the inability to pay, the trial court 

must strike the court facilities assessment (Gov. Code, § 70373), 

the court operations assessment (Pen. Code, § 1465.8) and the 

criminal laboratory analysis fee (Health & Saf. Code, § 11372.5); 
18

and it must stay the execution of the restitution fine. If 

Castellano fails to demonstrate his inability to pay these 

amounts, the fines, fees and assessments imposed may be 

enforced. 

PERLUSS, P. J.

We concur:

ZELON, J.

FEUER, J.