Frye

As amended in 1992, Government Code section 13967, subdivision (a) (hereafter § 13967(a)), provides in relevant part: “[I]f the person is convicted of one or more felony offenses, the court shall impose a . . . restitution fine of not less than two hundred dollars ($200), subject to the defendant’s ability to pay . . . .” (Italics added.)

Penal Code section 1202.4, subdivision (a) (hereafter § 1202.4(a)) provides in relevant part: “In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code. Such restitution fine . . . shall be ordered regardless of the defendant’s present ability to pay.”

In this case we are called upon to harmonize these two statutes. We shall conclude that, in imposing a restitution fine, the trial court must consider a defendant’s ability to pay. However, the trial court is not limited to a consideration of a defendant’s present ability to pay but may consider defendant’s ability to pay in the future.

Defendant Robert Frye was serving a life sentence in state prison when he was found in possession of…