The minute order from the resentencing hearing must be corrected to reflect that the defendant was convicted as to count 3 of a violation of section 289(a) rather than section 288(a).
The clerical error in the minute order, setting for the wrong code section of conviction, must be corrected.
Authority:
People v. Camacho (2009) 171 Cal.App.4th 1269, 1273
It was error for the juvenile court to order the minor to pay restitution to the victim at the rate of (a specific dollar amount was named) per month, where the court had not ordered an amount of restitution that was owed, and had not declared that the amount could not be determined at the present time.
Remanded to the juvenile court. For the purposes of making an order regarding the amount of restitution payable by the minor, the court needs to determine what the amount of loss is, or if, instead, the loss cannot be ascertained at the time of disposition.
Welfare and Institutions Code section 730.6(a)(2) provides that upon a minor being found to be a person described in section 602, the court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, restitution to the victim or victims, if any, in accordance with subdivision (b).
WIC 730.6(a)(2)
Section 730.6(b)(1) provides that restitution to the victim, who incurs an economic loss as a result of the minor’s conduct, shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation.
WIC 730.6(b)(2)
Because the statute authorizes the restitution amount to be determined at any time during the term of the commitment or probation, restitution orders may be made after the disposition order, even years later.
In re A.R. (2022) 78 Cal.App.5th 184, 187-188 [court affirmed 2021 restitution order where disposition order was made in 2016]
Restitution in a juvenile wardship case may be ordered either pursuant to section 730.6, or alternatively as a condition of probation.
WIC 730(a)(1)
In re T.C. (2009) 173 Cal.App.4th 837, 844-845 [holding that section 730.6 specifies when restitution must be imposed, and section 730 states when restitution may be imposed as a condition of probation]
Generally, an order of restitution will not be overturned in the absence of an abuse of discretion. The court abuses its discretion when it acts contrary to law or fails to use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.
In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016
The record should be harmonized if possible, including consideration of the probation report. However, we do not believe it is possible in this instance to do so.
(Gary note: The appellate court noted that the probation report’s observations and recommendations were inconsistent because of the lack of determination of the amount of restitution.)
Because of inconsistencies in the probation report, we cannot assume that the court incorporated its recommendations. We must remand to the juvenile court to make the necessary findings.
People v. Smith (1983) 33 Cal.3d 596, 599
In re P.O. (2016) 246 Cal.App.4th 288, 292 fn. 4 [where the probation conditions in question only appear in a probation department form and nowhere else in the record, the reviewing court would nevertheless assume that these conditions were in fact imposed]
We vacate defendant’s restitution fine, and remand this matter for the trial court to recalculate defendant’s custody credits and issue an amended abstract of judgment. The argument regarding imposition of the upper term is forfeited for lack of objection in the trial court.
Under California’s determinate sentencing law as it currently stands, excluding properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term and a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.
The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapmanstandard of review, the defendant is entitled to a remand for resentencing.
People v. Lynch (2024) 16 Cal.5th 730, 757
Chapman v. California (1967) 386 U.S. 18
A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.
People v. Scott (2015) 61 Cal.4th 363, 406
Strong policy reasons support this forfeiture rule. It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal
People v. Stowell (2003) 31 Cal.4th 1107, 1114
People v. Salazar (2016) 63 Cal.4th 214, 239–240
People v. French (2008) 43 Cal.4th 36, 46
Even constitutional claims may be forfeited if the issue is not raised below, and discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.
Absent a substantive change in the law that applies retroactively or an extenuating circumstance such as the futility of objecting under the then-governing substantive law, neither of which is at issue here, the policy reasons underlying the forfeiture doctrine fully support its application where a defendant remains silent in the trial court during resentencing and then seeks to obtain appellate relief based on an asserted sentencing error that could have been raised at the time of sentencing.
In re Sheena K. (2007) 40 Cal.4th 875, 880–881, 887-888, fn. 7
People v. Salazar (2023) 15 Cal.5th 416, 431–432
People v. Stamps (2020) 9 Cal.5th 685, 698–699
People v. Perez (2020) 9 Cal.5th 1, 7–8
People v. Brooks (2017) 3 Cal.5th 1, 92
People v. Scott (1994) 9 Cal.4th 331, 356 [complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal]
The restitution fine imposed in 2002 must be vacated under section 1465.9(d), which provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated
PEN 1465.9(d)
People v. Greeley (2021) 70 Cal.App.5th 609, 626–627
When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.
We remand for the court to determine the appropriate credit for time served.
PEN 2900.1
PEN 2900.5
People v. Buckhalter (2001) 26 Cal.4th 20, 29
People v. Salazar (1994) 29 Cal.App.4th 1550, 1557 [trial court best positioned to ensure custody credits correctly calculated]
(Gary note: The court quoted Buckhalter language that did not involve determination of credit for time served up to the original date of sentence. Thus, it is not uncommon to see language citing Buckhalter to mention the actual days in custody, with no mention of conduct time earned under section 4019 prior to the original sentencing. Buckhalter was concerned only with the time between the original sentencing and the resentencing.
(If you are looking for authority regarding recitation of the conduct credits earned prior to the initial sentencing, you may wish to review Sek, which the Court of Appeal did not cite in this case. I do think, however, that it would be valuable to examine the authority Sek relied on for its conclusion that the court must calculate the defendant’s conduct credit earned prior to his original sentencing.)
People v. Sek (2022) 74 Cal.App.5th 657, 673
The defendant was convicted under both section 4500 (assault by a life prisoner) and section 4501 (assault by means of force likely to produce great bodily injury by a prisoner) for the same act. Where section 4500 applies, the defendant cannot also be convicted of section 4501 for the same act.
The court misunderstood its discretion on imposing the minimum restitution fine. Also, the court failed to consider the defendant’s ability to pay before deteremining the amount of the restitution fine, and it did not recognize that it had discretion regarding the imposition of the assessments that it thought wer mandatory.
Defendant’s conviction for assault by a prisoner under section 4501(b) is reversed. We vacate the restitution fine, the court operations assessment, and the court facilities assessment and remand for the court to properly exercise its discretion regarding the amount of the restitution fine and immposition of assessments.
Penal Code section 4501(b) specifically states that, except as provided in section 4500, every person confined in the state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony.
Sections 4500 and 4501 describe two mutually exclusive crimes. Section 4501’s “except as provided in section 4500” clause prevents the two statutes from covering the same conduct. It clarifies that when both statutes would otherwise apply, section 4500 governs and section 4501 is inapplicable. So when a defendant is convicted as provided in section 4500, the defendant cannot also be convicted as provided in section 4501 for the same conduct.
People v. Nava (2024) 107 Cal.App.5th 624, 628-629
The court erred in concluding that the amount of the restitution fine it imposed was the minimum required by statute. It imposed a $300 restitution fine for each of the seven counts of conviction, stating that $2100 was the minimum mandatory amount. The court misunderstood its discretion.
Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine of not less than $300 nor more than $10,000. This statute provides for a restitution fine in every case. A “case” is a formal criminal proceeding, filed by the prosecution and handled by the court as a separate action with its own number. The provision does not contemplate a separate restitution fine for each individual count.
The court misunderstood its discretion because the minimum restitution fine would be $300 for the entire case, not $300 per conviction. The matter must be remanded for reconsideration of the appropriate restitution fine.
People v. McAllister (2026) 122 Cal.App.5th 92, 96
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court]
A defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state Constitutions. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine, but the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines, such as the restitution fine under section 1202.4 and the parole revocation restitution fine under section 1202.45.
People v. Kopp (2025) 19 Cal.5th 1, 13-14
A defendant may seek to contest the defendant’s inability to pay the amount exceeding the statutory minimum. Under section 1202.4(c), inability to pay may be considered in increasing the amount of the restitution fine in excess of the minimum fine. Under 1202.4(d), in setting the amount of the fine in excess of the minimum fine the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay.
PEN 1202.4(c), (d)
People v. Kopp (2025) 19 Cal.5th 1, 23-24
If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment.
People v. Kopp (2025) 19 Cal.5th 1, 30