Category Archives: Fines and fees

Equal protection, Fines and fees, Sentencing

Case 000708

Posted on by Gary McCurdy

Error and/or relief

Once the court found that the defendant had the inability to pay the court operations assessment fee or the court facilities assessment, it was error for the court to impose the fees but stay them until the defendant had the ability to pay.

First Holding:

If a defendant requests, a trial court must 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). Because 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.

Authority:

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

Second Holding:

Here, the trial court found that the defendant was unable to pay the court operations and court facilities assessments, but instead of waiving these fees as a court would do for an indigent civil litigant, the court imposed and stayed the ancillary costs. Because the court in this case should have waived these fees upon its finding of an inability to pay, rather than stay their execution, we will strike the fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30 [noting lack of justification for denying criminal defendants the right to seek a waiver of certain ancillary costs when civil litigants facing the same costs may receive such a waiver]

Amelioration, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000706

Posted on by Gary McCurdy

Error and/or relief

At a resentencing hearing under Penal Code section 1172.1(a)(1) for the defendant, the trial court reduced defendant’s prison term by striking certain enhancements and re-imposing a restitution fine under section 1202.4(b). In considering the gang enhancements that were imposed in 2006, the court should have examined them to determine whether the elements met the current requirements under the amendments by AB 333 to section 186.22. Also, the restitution fine is more than 10 years old and must be vacated.

First Holding:

When defendant admitted to the enhancement in 2006, former section 186.22(b)(1) provided a sentencing enhancement for a person who committed a felony for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. As the defendant was convicted of attempted murder, carrying a sentence of a life term, the enhancement imposed a minimum of 15 years before release on parole. Without the enhancement, the defendant’s minimum eligibility would have been after seven years.

Authority:

FORMER PEN 186.22

Second Holding:

In 2021, the Legislature passed AB 333, effective January 1, 2022, which added new elements to gang enhancements in section 186.22. It narrowed the definition of criminal street gang and pattern of criminal activity, as well as what it means for an offense to have commonly benefited a street gang.

Under the new legislation, imposition of a gang enhancement requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

These changes benefit defendants by raising the threshold for a true finding on a gang enhancement.

Authority:

CURRENT PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1207

People v. Perez (2022) 78 Cal.App.5th 192, 206

Third Holding:

The defendant and the People agree that defendant’s 2006 admission to the gang enhancement on count 1 does not satisfy all the elements for a gang enhancement under the new legislation. Under our independent standard of review, we find no reason to disagree.

Authority:

People v. Rosbury (1997) 15 Cal.4th 206, 209 [de novo review applies when legality of sentence is purely a legal question]

Fourth Holding:

Because the defendant’s admission in 2006 would not satisfy the elements for a gang enhancement under current law, his past admission cannot now support beyond a reasonable doubt the additional punishment allowed by the enhancement.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082 [elements of an alleged sentence enhancement must be proven beyond a reasonable doubt]

People v. Rodriguez (2024) 103 Cal.App.5th 451, 458 [guilty plea admits of guilt beyond a reasonable doubt to every element of crime charged]

Fifth Holding:

AB 333’s substantive changes apply retroactively to all cases not yet final. When a sentence is recalled for resentencing, the matter is non-final and subject to application of ameliorative amendments, like AB 333. The record plainly supports that the defendant’s case was not final because his sentence was recalled under section 1172.1. He was therefore entitled to the benefits of AB 333. Accordingly, we reverse the true findings on the gang enhancement.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

People v. Lopez (2025) 17 Cal.5th 388, 396, 398–399 [recognizing a judgment becomes nonfinal when sentence is vacated and new sentence is imposed]

People v. Lopez (2020) 56 Cal.App.5th 835, 845–846 [recalled sentence not final]

Sixth Holding:

The restitution fine imposed in 2006 must be vacated, as it was imposed more than 10 years ago.

Authority:

PEN 1465.9(d)

Appellate Principles, Effective assistance of counsel, Equal protection, Fines and fees, Sentencing

Case 000703

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing two $30 criminal conviction assessment fees and two $40 court operations assessment fees without first determining whether the defendant had the ability to pay those fees.

First Holding:

The imposition of ancillary payments raises equal protection issues. Upon request, a court must consider a defendant’s inability to pay before imposing a court operations assessment (Pen. Code, sec. 1465.8(a)(1)) or a court facilities assessment (Gov. Code, sec. 70373(a)(1)).

In making this determination, a court must allow the parties to present any relevant evidence or argument on the matter. For these reasons, we vacate the $80 court operations assessment fees and $60 criminal conviction assessment fees and remand the matter to afford the trial court an opportunity to determine in the first instance whether the defendant has the ability to pay those costs.

Authority:

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

Second Holding:

To avoid passing upon whether the defendant’s trial attorney failed to provide constitutionally adequate assistance, we exercise our discretion to excuse the defendant’s forfeiture of his challenge to the imposition of the ancillary costs.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [noting that a reviewing court may reach the merits of a forfeited claim t forestall a defendant’s claim of ineffective assistance of counsel]

Fines and fees, Sentencing

Case 000690

Posted on by Gary McCurdy

Error and/or relief

The defendant cannot be convicted of both the robbery and the petty theft it resulted in, and the conviction and sentence for petty theft, along with associated fines and fees, must be reversed.

First Holding:

A defendant cannot be convicted of both robbery and petty theft based on the same conduct because theft is a lesser necessarily included offense of robbery.

Authority:

People v. Ortega (1998) 19 Cal.4th 686, 699

Second Holding:

While section 654 prohibits multiple punishment, it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct.

However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.

Authority:

PEN 654

PEN 954

People v. Ortega (1998) 19 Cal.4th 686, 692

People v. Montoya (2004) 33 Cal.4th 1031, 1034

People v. Sanders (2012) 55 Cal.4th 731, 736

Third Holding:

This is true even though the defendant first took items from the store and then took the same items from the loss prevention officer by force. The taking of the items from the loss prevention officer was the same as taking items from the store since the loss prevention officer was acting as an agent of the store.

Authority:

People v. Villa (2007) 157 Cal.App.4th 1429, 1434–1435

People v. Estes (1983) 147 Cal.App.3d 23, 29

Fourth Holding:

The People contend the defendant forfeited his right to raise this issue on appeal because he did not object to his separate convictions before the trial court. We consider the merits of the argument because a defendant may challenge an unauthorized sentence even if he or she failed to object below.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 295

Fifth Holding:

Section 1465.8(a)(1) requires a court to impose a $40 court operations assessment for every conviction of a criminal offense. Similarly, Government Code section 70373(a)(1), requires a $30 conviction assessment for each misdemeanor or felony conviction. The court also imposed a fine of $41 under section 1202.5 along with a restitution fine of $600 and a $600 parole revocation restitution fine, which was suspended unless parole is revoked.

Because we reverse the conviction for petty theft, we remand the matter for the superior court to vacate any portion of the fines and fees imposed for petty theft.

Authority:

PEN 1202.5

PEN 1202.4

PEN 1465.8(a)(1)

GOV 70373

Abstracts and Minutes, Fines and fees

Case 000689

Posted on by Gary McCurdy

Error and/or relief

The restitution fine is more than 10 years old and must be vacated. The abstract of judgment does not correctly reflect the trial court’s oral pronouncement of judgment and must be corrected.

First Holding:

The abstract of judgment does not correctly reflect the trial court’s oral pronouncement of judgment. At resentencing, the trial court found defendant indigent and waived any non-mandatory fines and fees. Once the trial court found defendant indigent, the court operations and conviction assessments were no longer mandatory. They were, therefore, waived by the court.

The abstract of judgment nevertheless includes a court operations assessment (sec. 1465.8) totaling $560 and a conviction assessment (Gov. Code, sec. 70373) totaling $420. Because the abstract of judgment does not accurately reflect the court’s oral pronouncement of judgment, we will order it corrected.

Authority:

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

People v. Mitchell (2001) 26 Cal.4th 181, 185

Second Holding:

The restitution fine was imposed more than 10 years ago and must be vacated.

Authority:

PEN 1465.9