Category Archives: Eighth Amendment

Eighth Amendment, Fines and fees, Sentencing, Statutory interpretation

Case 000917

Posted on by Gary McCurdy

Error and/or relief

We are not convinced that section 1202.4 is facially unconstitutional, but we will remand this matter to the trial court to give the defendant an opportunity to bring an as-applied challenge to the restitution fine under the excessive fines clauses of the Eighth Amendment and California Constitution.

First Holding:

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, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For a felony, the minimum fine is $300 and the maximum is $10,000. Fines for a misdemeanor range from $150 to $1000.

The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b).

Authority:

PEN 1202.4(b)

Second Holding:

Due process did not require an ability to pay hearing before imposing every punitive fine. Kopp instructed instead that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The excessive fines analysis arises under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.

Authority:

U.S. Const. Eighth Amendment

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 23

Third Holding:

Following Bajakajian, our Supreme Court in Lockyer stated that four factors are relevant to determining whether a fine is unconstitutionally excessive:

(1) the defendant’s culpability;

(2) the relationship between the harm and the penalty;

(3) the penalties imposed in similar statutes; and

(4) the defendant’s ability to pay.

Kopp observed that a fine is excessive only if it is grossly disproportional to the gravity of the offense that it punishes, a deferential standard that recognizes that the Legislature makes judgments in the first instance about the appropriate punishment for offenses and judicial determinations of the gravity of a particular criminal offense are inherently imprecise.

Kopp remanded to give the defendant the opportunity to raise such a challenge.

Authority:

United States v. Bajakajian (1998) 524 U.S. 321, 327–328

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fourth Holding:

A statute will be interpreted to avoid serious constitutional questions if such an interpretation is fairly possible. It would be remarkable and plainly unconstitutional for the Legislature to prohibit a trial court from considering a defendant’s invocation of a constitutional right.

We will therefore not construe section 1202.4 as preventing defendants from raising an excessive fines challenge to the minimum fine. Instead, we read the statute as simply establishing that as a statutory matter in the absence of an excessive fines challenge, a trial court cannot refrain from imposing the minimum $300 restitution fine based on a defendant’s inability to pay alone.

This is congruent with Kopp and excessive fines analysis jurisprudence, which considers a defendant’s ability to pay as one of four relevant factors, not as dispositive on its own.

Authority:

People v. Buza (2018) 4 Cal.5th 658, 682

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

People v. Aviles (2019) 39 Cal.App.5th 1055, 1070 [While ability to pay may be part of the proportionality analysis, it is not the only factor.]

People v. Kopp (2025) 19 Cal.5th 1, 23 [citing Aviles with approval]

Fifth Holding:

Neither the defendant nor the trial court had the benefit of Kopp when the defendant was sentenced, so she did not present her challenge to the restitution fine through the proper excessive fines analysis that Kopp makes clear is appropriate.

Accordingly, as Kopp itself did, we will remand this matter to the trial court to give the defendant the the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23

Eighth Amendment, Equal protection, Sentencing

Case 000895

Posted on by Gary McCurdy

Error and/or relief

We remand solely as to the fines and ancillary costs ordered in this case on appeal.

First Holding:

Kopp allows challenges based on the excessive fines and equal protection clauses of the federal or state Constitutions.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Second Holding:

Kopp addresses the proper means by which a criminal defendant may challenge the various court ordered payments imposed at criminal sentencings. Those payments fall into three broad categories: fines, ancillary costs, and victim restitution. As to fines, such as restitution and parole revocation payments under Penal Code sections 1202.4 and 1202.45, there is no due process requirement to hold an ability to pay hearing before imposing every punitive fine. Instead, excessive fines analysis, which includes consideration of ability to pay, is the proper vehicle to challenge punitive fines under either the federal or state Constitutions.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 17, 23

Third Holding:

As to ancillary costs, under Penal Code section 1465.8 and Government Code section 70373, Kopp explains an equal protection analysis is appropriate and holds that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment.

(Gary note: This stems from the recognition that in civil cases, the same fees are due, but the superior court may waive them for civil litigants. Kopp concludes that criminal defendants must be given the same consideration, as there is no legitimate reason to discriminate between civil cases and criminal cases for administrative assessments that go toward support of the court system and are not punitive in nature.)

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30

Eighth Amendment, Fines and fees, Sentencing

Case 000857

Posted on by Gary McCurdy

Error and/or relief

The court imposed an incorrect term for one of the counts of conviction. It appears that the court may not have considered whether section 654 applies to some counts. And the court’s medical costs order requires clarification.

First Holding:

The court imposed one year in the county jail for violation of Health and Safety Code section 11364 (possession of narcotics paraphernalia), a misdemeanor. Because there is no specific sentence defined for that offense, the general provisions of section 11374 apply.

Every person who violates or fails to comply with any provision of the division that includes section 11364, except one for which a penalty is otherwise in that division specifically provided, is guilty of a misdemeanor punishable by a fine in a sum not less than thirty dollars ($30) nor more than five hundred dollars ($500), or by imprisonment for not less than 15 nor more than 180 days.

It was error to impose a jail term greater than 180 days, and the sentence imposed was an unauthorized sentence.

Authority:

HSC 11364

HSC 11374

People v. Anderson (2010) 50 Cal.4th 19, 26 [a sentence is generally unauthorized when it cannot be lawfully imposed under any circumstance in a particular case]

Second Holding:

On remand, the trial court may reconsider all components of defendant’s sentence, including whether section 654 applies to counts 3 and 4.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 994

Third Holding:

The trial court ordered defendant to pay for his own medical costs or medical fees while incarcerated. The trial court was not authorized to require him to pay his medical costs or fees while in prison. The probation report cited section 4011 as the authority for the medical costs order, but that section applies only to medical care of prisoners while in a city or county jail and not costs incurred during state level incarceration.

Further, section 5007.5 prohibits the Secretary from imposing a fee for inmate-initiated medical visits in prison. The statute does not prohibit requiring a prisoner to pay any other medical fees or bills that may be charged to him while incarcerated.

On remand, the trial court is instructed to clarify its order requiring defendant to pay his medical costs and fees in accordance with Penal Code section 5007.5.

Authority:

PEN 5007.5 [prohibiting the Secretary of the Department of Corrections and Rehabilitation from charging a fee for an inmate-initiated medical visit of an inmate confined in the state prison.]

PEN 4011 [concerning incarceration in a city or county jail]

Eighth Amendment, Fines and fees, Sentencing

Case 000820

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering defendant to pay ancillary costs and to reimburse the police department for the SART [Sexual Assault Response Team] examination costs without considering his ability to pay and while the amount of victim reimbursement had yet to be determined. Accordingly, we reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

Because defendant did not obtain a certificate of probable cause, our review is limited to issues occurring after entry of the plea that do not affect its validity.

Authority:

PEN 1237.5

Cal. Rules of Court, rule 8.304(b)(3)

People v. Mendez (1999) 19 Cal.4th 1084, 1096

Second Holding:

While this appeal was pending, our Supreme Court decided Kopp, which held that (1) a defendant may challenge the imposition of a punitive fine (e.g., restitution fines under Penal Code section 1202.4) under the excessive fines provisions of the United States and California Constitutions; and (2) equal protection principles require a court, upon request, to consider a defendant’s ability to pay before imposing ancillary costs (e.g., court facilities fees under Government Code section 70373 and court operations fees under section 1465.8).

Because defendant did not have the benefit of Kopp’s specific reasoning at the time of his sentencing, we conclude he must be afforded the opportunity to assert an excessive fine objection and develop a factual record on the considerations relevant to that claim.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Third Holding:

The touchstone of the excessive fines inquiry is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.

Four considerations inform that inquiry: (1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

Fourth Holding:

As for the $30 court operations fee and the $40 court facilities fee, Kopp held that, in light of the Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing ancillary costs in criminal cases.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 31

Fifth Holding:

Here, the trial court erroneously denied defense counsel’s request for an ability to pay hearing. Although some courts have found such error harmless where the record otherwise reflects the defendant’s earning capacity, we decline to do so here, as the People do not contend the record is sufficient to make such a determination in this case.

Furthermore, an ability to pay hearing is also required under section 1203.1h [regarding the cost of medical examinations incurred by law enforcement for the collection and preservation of evidence in sexual assault cases].

Authority:

PEN 1203.1h(b)

People v. Aviles (2019) 39 Cal.App.5th 1055, 1075–1077

People v. Johnson (2019) 35 Cal.App.5th 134, 139–140

Eighth Amendment, Sentencing

Case 000800

Posted on by Gary McCurdy

Error and/or relief

It is not clear if the court understood the scope of its sentencing authority. The record is ambiguous as to whether the court found the sentence constitutionally permissible or believed it was obligated to impose the sentence regardless of any constitutional concerns. We accordingly reverse the judgment and remand for further proceedings consistent with this opinion.

First Holding:

The One Strike law mandates a sentence of 15 or 25 years to life for certain designated sexual offenses committed under specified aggravating circumstances. A lewd or lascivious act under section 288(a) is a qualifying sexual offense. The default sentence is 15 years to life if the jury has found the crime was committed under one of the circumstances listed in subdivision (e) of the One Strike law, among which is the multiple victim circumstance. But if multiple victims are under the age of 14 years old, the sentence is 25 years to life. A court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (e) for any person who is subject to punishment under the One Strike law.

Authority:

PEN 667.61

In re Vaquera (2024) 15 Cal.5th 706, 713

Second Holding:

Where, as here, a defendant contends a sentence constitutes cruel and unusual punishment, the judicial inquiry commences with great deference to the Legislature. Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment. As pertinent here, article I, section 17, of the California Constitution proscribes cruel or unusual punishment. A prison sentence violates this proscription if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.

Authority:

Cal. Const., art. I, sec. 17

People v. Martinez (1999) 76 Cal.App.4th 489, 494

In re Lynch (1972) 8 Cal.3d 410, 414, superseded by statute on another ground as stated in In re Palmer (2021) 10 Cal.5th 959.

People v. Christensen (2014) 229 Cal.App.4th 781, 806

Third Holding:

Courts use a three-part test to determine if a particular sentence is disproportionate to the offense for which it is imposed. First, courts consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. Second, courts compare the challenged punishment with punishments imposed for more serious crimes in the same jurisdiction. Finally, courts compare the challenged punishment with punishments imposed for the same offense in other jurisdictions.

Authority:

People v. Christensen (2014) 229 Cal.App.4th 781, 806

In re Lynch (1972) 8 Cal.3d 410, 425-427

Fourth Holding:

A mandatory punishment provided by law may contravene constitutional principles and a court has the authority to intervene under such circumstances to prevent an unconstitutional punishment from being imposed. Here, it is not clear if the trial court was aware of its authority to not impose a life sentence under the One Strike law assuming it found the sentence amounted to cruel or unusual punishment. The court specifically stated it would not have imposed the mandated sentence if it had discretion. The court noted the prosecutor previously offered a non-life sentence, and the court lamented that defendant’s counsel did not represent him during settlement discussions because the court believed a life sentence could have been avoided.

But the court concluded that it didn’t find that that statute is cruel and unusual, and so that it had no choice but to give the sentence. The court later stated that it didn’t believe it is a cruel and unusual statute because there were multiple victims under the age of 14. Given the court’s indication that it viewed a different sentence as more appropriate, it is not clear if the court merely found the statute was not cruel and unusual on its face or if it found the administration of the sentence as applied to defendant was not cruel and unusual punishment. Under these circumstances, remand is appropriate.

We accordingly remand the matter for the trial court to clarify whether the mandated statutory sentence as applied to defendant constitutes cruel or unusual punishment. If the court finds the mandated statutory sentence is constitutional, it may impose the sentence. If the court finds the mandated statutory sentence is unconstitutional, it may exercise its authority to impose a different sentence. In doing so, we express no opinion as to whether the mandated statutory sentence is cruel or unusual punishment as applied to defendant. The trial court is free to clarify its holding on remand.

Authority:

People v. Felix (2003) 108 Cal.App.4th 994, 999

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 000763

Posted on by Gary McCurdy

Error and/or relief

The court erred in declining to determine the defendant’s ability to pay fines and fees. Its stated basis was the probation office’s strong stance on rejecting the plea, based on the victim. After sentencing, the Supreme Court issued its decision in Kopp.

First Holding:

A defendant may challenge the imposition of a punitive fine under the United States and California Constitutions’ excessive fines provisions. The California Supreme Court The court used the “fine” term to refer to penalties provided by the Legislature to punish a criminal offense and included restitution fines and parole revocation restitution fines within that category. Because its decision was issued after the defendant was sentenced, the defendant should be given the opportunity to develop an excessive fines argument in the first instance on remand.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23, 30-31

Eighth Amendment to the United States Constitution [Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted]

Article I, section 17 of the California Constitution [Cruel or unusual punishment may not be inflicted or excessive fines imposed.]

Second Holding:

Because the trial court failed to consider the defendant’s ability to pay the the court operations and court facilities assessments despite his request, we must remand for such consideration. Because there is no rational basis for distinguishing criminal defendants from indigent civil litigants—who are afforded waivers for similar assessments—equal protection principles require the trial court to consider a defendant’s inability to pay before imposing these ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 14-15, 24-31

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 000733

Posted on by Gary McCurdy

Error and/or relief

We strike the protective order, because none of the offenses involved domestic violence. We also remand to give the defendant the opportunity to present evidence on his ability to pay the restitution fine and assessments.

First Holding:

Although initially charged with crimes involving domestic violence, his guilty plea was to a crime that did not involved domestic violence as defined in section 13700 or in Family Code section 6211. His crime is not specifically listed in section 136.2(i)(1), and it does not require registration as a sex offender. Hence, the trial court was without authority at sentencing to issue the criminal protective order for the victim’s benefit under section 136.2(i)(1). As the court did not have statutory authority to issue the criminal protective order, it must be stricken.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

The court imposed a $2,400 restitution fine, as well as a $2,400 parole revocation fine pursuant to section 1202.45. The court also imposed a $40 court operations assessment (sec. 1465.8(a)(1)) and a $30 court facilities assessment (Gov. Code, sec. 70373(a)(1)).

After sentencing, while this matter was still on appeal, the Supreme Court issued its opinion in Kopp. As to punitive fines, including restitution fines, the court found that due process does not require a trial court to hold an ability to pay hearing before imposing every punitive fine.

However, the court also noted that both the federal and state Constitutions prohibit excessive fines, and held that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines.

As to court operations assessments and court facilities assessments, which are ancillary costs, the court held that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing either assessment.

Because neither defendant nor the trial court had the benefit of Kopp’s reasoning and holding at the time of the sentencing hearing, we will direct the court to give defendant an opportunity to challenge the restitution fine and the assessments under Kopp.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13, 23, 30

Amelioration, Discretion, Eighth Amendment, Juveniles, Sentencing, Standard of review, Statutory interpretation

Case 000574

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition under section 1170(d) for recall of his sentence. The trial court did not appoint counsel and summarily denied appellant’s petition to recall because it found he had not been incarcerated in the Department of Corrections and Rehabilitation for at least 15 years as required by section 1170(d)(1)(A). We find the trial court’s ruling on the calculation of appellant’s period of incarceration was erroneous as a matter of law, and appellant’s preconviction custody must be included to calculate he had been incarcerated for 15 years when he filed his section 1170(d) petition.

The matter is remanded for the superior court to appoint counsel and conduct the hearing as provided in section 1170(d).

First Holding:

When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing, if the defendant meets additional statutory requirements.

Authority:

PEN 1170(d)

Second Holding:

When a trial court is not aware of the full scope of its sentencing discretion, a defendant is entitled to a remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 425

People v. Lynch (2024) 16 Cal.5th 730, 771-772

Third Holding:

The empanelment of separate juries at the defendant’s original trial in 2010 was likely based on Aranda and Bruton. Broadly stated, the Aranda/Bruton rule declares that a defendant is deprived of his or her Sixth Amendment right to confront witnesses when a facially incriminating statement of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the statement only against the declarant. The problem addressed in Bruton and Aranda may be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence.

Authority:

People v. Aranda (1965) 63 Cal.2d 518

Bruton v. United States (1968) 391 U.S. 123

People v. Gallardo (2017) 18 Cal.App.5th 51, 68

People v. Jackson (1996) 13 Cal.4th 1164, 1208

People v. Washington (2017) 15 Cal.App.5th 19, 27

Fourth Holding:

Appellant filed his petition based on the recall and resentencing provisions of section 1170(d), effective January 1, 2013. Under Graham, the Eighth Amendment prohibits LWOP sentences for juvenile offenders who committed non-homicide offenses. In response to Graham, the Legislature enacted section 1170(d), creating a recall and resentencing procedure for certain juvenile offenders sentenced to LWOP terms.

Authority:

In re Kirchner (2017) 2 Cal.5th 1040, 1049

People v. Gibson (2016) 2 Cal.App.5th 315, 322–323

Graham v. Florida (2010) 560 U.S. 48

People v. Sorto (2024) 104 Cal.App.5th 435, 442

Fifth Holding:

On appeal, we review statutory interpretations de novo. We review the trial court’s factual findings to determine whether they are supported by substantial evidence, and do not reweigh or reinterpret the evidence.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1032

People v. Millard (2009) 175 Cal.App.4th 7, 26

Sixth Holding:

Absent a specific statutory definition of “has been incarcerated for at least 15 years” we may look to its plain meaning as understood by the ordinary person, which would typically be a dictionary definition. The Legislature did not use the word sentenced in section 1170(d)(1)(A). Instead, it used the word “incarcerated.”

Based on the plain meaning of “incarcerated,” the defendant’s period of incarceration for purposes of a section 1170,(d)(1)(A) began to run on the date the defendant was placed in jail, i.e., incarcerated, for the relevant charges.

Authority:

People v. Ruiz (2024) 104 Cal.App.5th 1027, 1031, 1032

Seventh Holding:

Section 1171 expressly addresses the trial court’s procedures in postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute. It defines a postconviction proceeding to mean a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75. Section 1171(c)(1) states that upon receiving a request to begin a postconviction proceeding that is authorized in law, the court shall consider whether to appoint counsel to represent the defendant. This section does not prevent the court from assigning counsel at a later time.

Authority:

PEN 1171

Eighth Amendment, Sentencing

Case: 000386

Posted on by Gary McCurdy

Error and/or relief

A court must consider a defendant’s inability to pay before imposing a court operations assessment and a court facilities assessment. We therefore remand to the trial court to conduct an inability to pay hearing as to those assessments.

First Holding:

Under Kopp, a court must consider a defendant’s inability to pay before imposing a court operations assessment and a court facilities assessment.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Second Holding:

Restitution fines and parole revocation fines under sections 1202.4 and 1202.45a), respectively, are punitive fines. Court operations assessments and court facilities assessments, under section 1465.8(a)(1) and Government Code section 70373(a)(1), respectively, are ancillary costs and not punishment. As to punitive fines, subject to the Eighth Amendment, a court may impose a nonexcessive fine as punishment. therwise, an excessive fines analysis applies to punitive fines imposed in excess of the minimum. Because the trial court here imposed punitive fines in the minimum amounts of $300 and stayed the parole revocation fine, they are not subject to an inability to pay hearing, as the defendant concedes.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-15

Third Holding:

However, ancillary costs do implicate equal protection principles. The court operations and facilities assessments are ancillary costs intended to raise funds for the courts. A criminal defendant cannot avoid the imposition of these costs regardless of indigency. By contrast, an indigent civil litigant may have similar fees waived entirely. Where the Legislature has already determined that both criminal defendants and civil litigants should be charged similar amounts for the same reasons, there appears no rational basis to deny only indigent criminal defendants the ability to avoid those costs. Accordingly, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Therefore, the trial court here should have considered the defendants’s inability to pay before imposing the $40 court operations assessment under section 1465.8(a)(1) and the $30 criminal conviction assessment fee under Government Code section 70373(a)(1).

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 18, 28-29, 30

Discretion, Eighth Amendment, Equal protection, Fines and fees, Sentencing, Standard of review

Case: 000346

Posted on by Gary McCurdy

Error and/or relief

The court imposed a minimum $300 restitution fine and an assessment of $70 in ancillary costs. The trial court held a hearing and determined that the defendant had the ability to pay. We affirm the order on ancillary costs but remand to give the defendant the opportunity to further challenge the restitution fine under Kopp.

First Holding:

A person convicted of a crime can, and in some cases must, be ordered to pay a variety of punitive fines along with other nonpunitive ancillary costs. Some statutes require the imposition of fines and ancillary costs regardless of a defendant’s ability to pay. Other statutes require a finding of the ability to pay or allow for its consideration. Restitution fines under section 1202.4 are considered punitive fines, whereas assessments to fund court facilities and operations are considered ancillary costs. The distinction between punitive fines and other imposed payments is important because it impacts whether a given form of required payment is initially challenged under, and then reviewed under, the constitutional excessive fines clauses, or under the constitutional provision for equal protection.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 12, 14-15, 18 [we analyze fines and ancillary costs separately because different justifications support each, and different constitutional protections apply]

Second Holding:

If requested by a defendant, the court must consider the defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1), or a court facilities assessment under Government Code section 70373(a)(1).

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 25-26, 30 [in light of the Legislature’s provision of fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing either assessment]

Third Holding:

In reaching its conclusion that the defendant did not meet his burden to show his inability to pay the ancillary costs, the court considered his potential to earn wages while in prison and his general ability to work, which was within its discretion to do. The trial court did not state that it was relying solely on the defendant’s ability to earn wages while in prison. The court found simply that he is capable of working. The trial court’s conclusion that he had the ability to pay $70 in court assessments was not arbitrary or irrational.

Authority:

People v. Fish (2024) 102 Cal.App.5th 730, 739 [collecting cases]

People v. Santos (2019) 38 Cal.App.5th 923, 934 [factors to consider in determining ability to pay may include, among others, the defendant’s realistic ability to earn prison wages or obtain employment]

People v. Castellano (2019) 33 Cal.App.5th 485, 490, disapproved in part as stated in Kopp, at p. 23, fn. 17. 490 [trial court may consider potential prison pay during the period of incarceration” in determining inability to pay]

People v. Cervantes (2020) 46 Cal.App.5th 213, 229 [ability to pay includes the ability both to obtain prison wages and to earn money after release from custody]

People v. Carmony (2004) 33 Cal.4th 367, 377 [a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it]

Fourth Holding:

Punitive fines are subject to a different approach. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine. Sentencing judges may, and often do, consider the defendant’s ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 23

San Antonio Indep. Sch. Dist. v. Rodriguez (1973) 411 U.S. 1, 22

Fifth Holding:

A court has discretion to impose a nonexcessive fine as punishment, even on indigent defendants. Thus, the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The touchstone of the constitutional inquiry for excessive fines is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. While ability to pay may be part of the proportionality analysis, it is not the only factor.

Authority:

U.S. Const., 8th Amend.

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 21, 23

United States v. Bajakajian (1998) 524 U.S. 321, 334

Sixth Holding:

Under section 1202.4(b), the restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine.

Authority:

PEN 1202.4

Seventh Holding:

A court’s ruling on ability to pay is reviewed for abuse of discretion. The defendant bears the burden of demonstrating his or her inability to pay the imposed amounts.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 21, 24

People v. Wilson (2023) 14 Cal.5th 839, 868

People v. Lowery (2020) 43 Cal.App.5th 1046, 1057, 1053

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case: 000338

Posted on by Gary McCurdy

Error and/or relief

When it initially granted the defendant probation, the court waived various fines and assessments based on indigence. On revocation of probation, the court imposed a restitution fine and other assessments. Remanded for the court to consider the defendant’s challenges to the fees and assessments in light of a recent Supreme Court decision.

First Holding:

Under the Supreme Court’s holding in Kopp a defendant may challenge the imposition of any fine as constitutionally excessive. Because Kopp was decided after entry of the juidgment on appeal here, the defendant should have the opportunity to make such a challenge. Though the court could determine that the issue was forfeited for lack of objection, forfeiture may be excused where to require defense counsel to raise an objection would place an unreasonable burden on defendants to anticipate unforeseen changes in the law.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

People v. Perez (2020) 9 Cal.5th 1, 8

People v. Brown (2024) 101 Cal.App.5th 113, 127 [Courts generally decline to apply the forfeiture rule to a right derived from recent, unanticipated changes to the law.]

Second Holding:

A restitution fine under section 1202.4(b)(1) is required in every case where a person is convicted of a crime unless the court finds compelling and extraordinary reasons for not doing so and states those reasons on the record. ) Section 1202.4, subdivision (b)(1), states that the minimum restitution fine is $300 for each felony conviction and that the maximum fine is $10,000. Section 1202.4, subdivision (c), allows the court not to impose the restitution fine for compelling and extraordinary reasons, but states the defendant’s inability to pay is not a compelling and extraordinary reason not to impose the minimum fine. Thus, the defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine.

Authority:

PEN 1202.4
People v. Kopp (2025) 19 Cal.5th 1, 13, 30

People v. El (2021) 65 Cal.App.5th 963, 967

People v. Preston (2015) 239 Cal.App.4th 415, 423

People v. Miracle (2018) 6 Cal.5th 318, 356

People v. Montelongo (2020) 55 Cal.App.5th 1016, 1033 [Under section 1202.4(c), the trial court may not consider a defendant’s ability to pay when imposing the minimum restitution fine of $300, but the court may consider the defendant’s ability to pay if the court imposes a restitution fine above the minimum.]

Third Holding:

Although fines may properly be imposed as punishment for crime, the “excessive fines analysis” under the United States and California Constitutions, which considers ability to pay, is the proper vehicle to challenge punitive fines. But there is no due process requirement to hold an ability to pay hearing before imposing every punitive fine.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23 and fn. 17

Fourth Holding:

Section 1465.8(a)(1) requires, to assist in funding court operations, an assessment of $40 to be imposed on every conviction for a criminal offense. Government Code section 70373(a)(1) requires, to ensure and maintain adequate funding for court facilities, that $30 assessment be imposed on every conviction for a criminal offense. Both costs are mandatory. But equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1).

Authority:

PEN 1465.8

GOV 70373(a)(1)

People v. Kopp (2025) 19 Cal.5th 1, 9, 15

People v. Robinson (2012) 209 Cal.App.4th 401, 405

Eighth Amendment, Juveniles, Sentencing

Case 000313

Posted on by Gary McCurdy

Error and/or relief

Tried as an adult for murder in 2008, the defendant was sentenced to 47 years to life in prison. The trial court denied his recently filed (2024) motion for resentencing under section 1170(d), believing the defendant was categorically ineligible for resentencing because he did not receive an actual LWOP sentence and the 47 years to life sentence he did receive was not long enough to qualify as the functional equivalent of LWOP. We hold, having given defendant’s circumstances individualized consideration, that defendant is eligible for resentencing because he is serving a sentence that constitutes the functional equivalent of LWOP.

First Holding:

When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.

Authority:

PEN 1170(d)

Second Holding:

We conclude that defendants who are serving the functional equivalent of LWOP, not just those serving an actual LWOP sentence, are eligible for section 1170(d) relief.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608 [GARY NOTE: 23 years plus 80 years to life]

People v. Sorto (2024) 104 Cal.App.5th 435 [GARY NOTE: 10 years plus 130 years to life]

People v. Contreras (2018) 4 Cal.5th 349, 356, 369 [holding sentences of 50 and 58 years to life imposed on two defendants who were 16 years old at the time of their kidnapping and sex offenses were functionally equivalent to LWOP and violated the Eighth Amendment]

Third Holding:

While the trial court rightly identified the line drawing problems this question raises given the current state of the law, lines must still be drawn. They need not be drawn entirely in the abstract, however. Instead, guided by our consideration of defendant’s history and prospects—and by our Supreme Court’s observation that a sentence must give a juvenile “a realistic hope of release and a genuine opportunity to reintegrate into society” to be constitutional (Contreras, supra, 4 Cal.5th at 373)—we hold defendant is serving a sentence that is the functional equivalent of LWOP and among those who are not categorically ineligible for relief under section 1170(d).

Authority:

People v. Contreras (2018) 4 Cal.5th 349, 373

Fourth Holding:

This question is pending in the Supreme Court. Acknowledging our Supreme Court will have the final word, we hold, having given defendant’s circumstances individualized consideration, that defendant is eligible for resentencing because he is serving a sentence that constitutes the functional equivalent of LWOP.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, review granted June 25, 2025, S290828