Category Archives: Equal protection

Equal protection, Fines and fees, Sentencing

Case 001015

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to stay the court facilities assessment and a court operations assessment based on defendant’s inability to pay. We vacate those orders.

Holding:

If a defendant requests such consideration, a trial 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).

Here, however, the trial court at resentencing purported to impose but stay the assessments based on inability to pay, rather than waive them.

Because there appears to be no basis to justify denying criminal defendants a waiver of certain ancillary costs when civil litigants may receive such a waiver, we will modify the judgment to strike the imposed but stayed court facilities assessment and court operations assessment.

Authority:

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

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

Abstracts and Minutes, Equal protection, Fines and fees, Sentencing

Case 000883

Posted on by Gary McCurdy

Error and/or relief

We remand for the limited purpose of allowing the trial court to conduct a hearing on whether to impose the ancillary costs in light of Kopp. The minute order and abstracts of judgment do not reflect the order of the court and must be corrected following that hearing.

First Holding:

At the sentencing hearing, the court did not mention, much less impose, fees under either section 1465.8 or Government Code section 70373. As for restitution fines, defense counsel requested the court consider staying any fines, and the court stated that it was striking the restitution fine and the parole revocation restitution fine, indicating that if that was found to be error on appeal, the court’s intent would be to impose the minimum $300 for both fines.

The minute order, however, reflects that the court ordered the fines in thh amount of $10,000. It then stated that the amounts were suspended. The minute order also included a court operations fee of $80 and a criminal conviction fee of $60. The abstract of judgment did not reflect the restitution fines, but did reflect the other two fees.

The judgment is controlled by the court’s oral pronouncements.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.]

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388 [The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.]

Second Holding:

Section 1465.8(a)(1) provides, in part: “To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense.” Government Code section 70373(a)(1) provides, in part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony.”

The trial court was required to impose these ancillary costs unless it granted defendant fee waivers. The court took neither action at the sentencing hearing. This was error.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 25-26, 29-30

Third Holding:

Although the omission of mandatory assessments may be corrected for the first time on appeal, if we were to do that, the fees would be imposed without defendant having had the opportunity to request they be waived.

Instead, we will remand the matter for the trial court to correct the minutes from the sentencing hearing and to determine whether to impose the court operations fee and the criminal conviction fee consistent with Kopp.

Authority:

People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530

Fourth Holding:

The People did not object when the trial court struck the restitution fine and the parole revocation restitution fine.

When a party fails to object, at the time of sentencing, to a trial court’s decision regarding the imposition of restitution fines, the waiver doctrine precludes appellate relief.

The court struck the restitution fine at the sentencing hearing. Thus, to the extent the court’s minutes reflect otherwise, the minutes should be modified to strike the restitution fines.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 302–303

People v. Frederickson (2020) 8 Cal.5th 963, 1027

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