Error and/or relief
The court improperly imposed a fine and penalty assessments of $3200 without specifying how that sum was reached. Remanded for the court to determine the fine under section 290.3. The court also failed to award sufficient credit for time served. And the court improperly issued a protective order pertaining to someone who was neither a victim of nor a witness to the crime.
First Holding:
The reporter’s transcript of the sentencing hearing shows that the trial court imposed a restitution fine of $1,000 and the $3,200 penalty assessment. The court did not explain how this penalty assessment had been calculated. A restitution fine is not subject to penalty assessments.
The probation report recommended that, under section 290.3, the defendnat be ordered to pay a fine of $3,200 including penalty assessment. The probation report did not explain how the figure of $3,200 had been reached.
The court’s minutes show a restitution fine of $1,000 and a fine of $3,200 pursuant to Section 290.3. The abstract of judgment states that appellant shall pay a $3200 fine pursuant to PC 290.3.
Under section 290.3(a) the maximum fine was $300 because this was appellant’s first conviction of an offense specified in section 290(c).
Authority:
PEN 1202.4(e)
PEN 290.3(a)
PEN 290(c)
Second Holding:
On a $300 fine imposed under section 290.3, the maximum penalty assessments total $930. The penalty assessments are:
(1) a 100 percent state penalty assessment under 1464(a)(1) equal to $300;
(2) a 70 percent additional penalty under Government Code section 76000(a)(1)) equal to $210;
(3) a 20 percent state surcharge under section 1465.7) equal to $60;
(4) a 50 percent state court construction penalty under Government Code section 70372 equal to $150;
(5) a 20 percent additional penalty for emergency medical services under Government Code section 76000.5 equal to $60;
(6) a 10 percent additional DNA penalty under Government Code section 76104.6(a)(1)) equal to $30; and
(7) a 40 percent additional state-only DNA penalty under Government Code section 76104.7(a) equal to $120.
Authority:
People v. Johnson (2015) 234 Cal.App.4th 1432, 1457-1458 [the penalty assessments on a $300 fine imposed pursuant to section 290.3(a) should have totaled $930]
People v. Hamed (2013) 221 Cal.App.4th 928 [though in Hamed, the GOV 76104.7(a) assessment was at 30 percent, before the section was amended to increase it to 40%]
Third Holding:
The abstract of judgment should detail the amounts of and statutory basis for the base fine and each of the penalty assessments imposed. Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. If the abstract does not specify the amount of each fine, the Department of Corrections and Rehabilitation cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.
Accordingly, the matter must be remanded to the trial court for recalculation of the section 290.3(a) fine and penalty assessments.
(Gary note: The court also concluded that the defendant was entitled to be present at the hearing on the recalculation, to allow the defendant to present a challenge on his ability to pay. The court did not cite any specific authority for that directive, but I’m guessing it probably had a case like People v. Kopp (2025) 19 Cal.5th 1 in mind.)
Authority:
People v. Johnson (2015) 234 Cal.App.4th 1432, 1459
People v. High (2004) 119 Cal.App.4th 1192, 1200
Fourth Holding:
A sentencing court must award credits for all days in custody up to and including the day of sentencing. In addition to actual credit, which accumulates from time spent in custody, detainees in local institutions are usually able to earn credit against their eventual sentence for good behavior and work performed. The parties agree that the credits awarded by the court were short by 3 days. On remand, the court should recalculate the presentence custody credits.
Authority:
People v. Crenshaw (2025) 116 Cal.App.5th 1169, 1181
Fifth Holding:
At the time of sentencing, the trial court issued a protective order directing appellant to not contact Person A.
Section 136.2 covers protective orders. Section 136.2(i)(1) provides that, if a defendant has been convicted of [the court describes the crime committed here], the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. Person A was not a victim of the [specified crime].
Section 136.2(i)(2) authorizes the issuance of an order restraining the defendant from any contact with a percipient witness to the crime if it can be established by clear and convincing evidence that the witness has been harassed by the defendant. Person A was not a percipient witness to the crime.
Thus, we direct the trial court to strike the protective order as to Person A.
Authority:
PEN 136.2
Sixth Holding:
The defendant did not object to the no-contact order. As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a protective order during sentencing, we will consider the defendant’s claim on the merits.
Authority:
People v. Ponce (2009) 173 Cal.App.4th 378, 381-382