Category Archives: Fines and fees

Case 000606

Error and/or relief

The jury found the defendant guilty of two felonies (maintaining a place for the purpose of using, selling, or giving away a controlled substance and felon in position of ammunition) and several misdemeanors (possession of cocaine, cultivating more than six marijuana plants, and possession of marijuana).

We conclude that two felony convictions must be reversed, the fee and assessment imposed for the possession of more than 28.5 grams of marijuana conviction must be reversed, either the possession of marijuana misdemeanor or the cultivating more than six marijuana plants misdemeanor must be stayed pursuant to section 654, and the four clerical errors in the judgment must be corrected.

First Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Appellate courts presume in support of the judgment every fact that the trier of fact could reasonably deduce from the evidence. Appellate courts also properly consider erroneously admitted evidence, notwithstanding the erroneous admission. Appellate courts do not resolve credibility issues or evidentiary conflicts. A judgment will not be reversed for insufficiency of the evidence merely because the circumstances may also be reasonably reconciled with a conclusion contrary to the judgment.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

People v. Brooks (2017) 3 Cal.5th 1, 57

People v. Oyler (2025) 17 Cal.5th 756, 820

People v. Jackson (2014) 58 Cal.4th 724, 749

Second Holding:

Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance as identified in particular sections of the Health and Safety Code shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. Because of the disjunctive “or,” section 11366 does not require that the place be maintained for the purpose of selling; it can be violated without selling, merely by providing a place for drug abusers to gather and share their experience.

Section 11366 proscribes continuously selling, giving away, or using a controlled substance; a single or isolated instance of this forbidden conduct is insufficient. Further, section 11366 is violated by selling or giving away to others, or allowing others to use, a controlled substance in a place maintained or opened for that purpose; it is not violated by an individual’s repeated personal use of a controlled substance at his home.

Authority:

HSC 11366

People v. Franco (2009) 180 Cal.App.4th 713, 716, 718

People v. Vera (1999) 69 Cal.App.4th 1100, 1102-1103 and fn. 2

People v. Green (1988) 200 Cal.App.3d 538, 544

People v. Shoals (1992) 8 Cal.App.4th 475, 490, 492

Third Holding:

In determining whether a place is opened or maintained for the purpose of selling, giving away, or using a controlled substance, the trier of fact should consider the surrounding circumstances, including: the quantity of any controlled substance discovered; the character of the place opened or maintained; how the place is fitted up; whether other individuals visited the place in unusual numbers or at unusual times; whether other individuals who were under the influence of a controlled substance were found at the place; whether lookouts were posted near or at the place; whether a password or passcode was needed for entry into the place; any pertinent statements by the defendant or those found at the premises; and whether any drug paraphernalia or drug residue was found in the place.

However, the quantity of controlled substance discovered at a place is alone insufficient to show that the place was maintained or opened for the purpose of continuously selling, giving away, or using a controlled substance.

Authority:

People v. Franco (2009) 180 Cal.App.4th 713, 726

People v. Hawkins (2004) 124 Cal.App.4th 675, 683

People v. Shoals (1992) 8 Cal.App.4th 475, 491-492

People v. Cannon (1957) 148 Cal.App.2d 163, 168

Fourth Holding:

Health and Safety Code section 11366 prohibits opening or maintaining a place for the purpose of selling, using, or giving away a controlled substance; it does not prohibit opening or maintaining a place for the purpose of growing or cultivating a controlled substance/marijuana. (Cf. sec. 11366 with 11358 [prohibiting the cultivation of marijuana]; 11366.5 [prohibiting individuals from making available a premises for the manufacture of a controlled substance]; cf. also Dowl [describing separate criminal provisions that are exempt from prosecution pursuant to the Medical Marijuana Program of sec. 11362.7 et seq.]

Authority:

People v. Dowl (2013) 57 Cal.4th 1079, 1086

Fifth Holding:

Section 11366 requires that a controlled substance be sold, used, or given away at the place maintained for such a purpose. Section 11366 simply does not address controlled substances that are sold, used, or given away at a location other than the place, even if the controlled substance is produced at the place. Accordingly, Shoals and related considerations do not support the conclusion that the instant property was used for the purpose of continuously selling, using, or giving away marijuana to others.

Authority:

HSC 11366

People v. Shoals (1992) 8 Cal.App.4th 475, 491 [The prosecution must prove that appellant opened or maintained the hotel room for the purpose of selling the cocaine base.]

People v. Holland (1958) 158 Cal.App.2d 583, 588 [There is no evidence that this barbecue stand was opened for the prohibited purpose.]

Sixth Holding:

A conviction cannot be constitutionally sustained on the basis of a theory that was not actually presented to the jury. Here, the instructions informed the jury that the controlled substance at issue was cannabis; cocaine was not mentioned. Therefore, the defendant’s conviction cannot be sustained based on the cocaine discovered at the property. In sum, the evidence shows the property was used to grow, cultivate, and process marijuana, but that is all. Substantial evidence does not support the section 11366 conviction because there is insufficient evidence that the defendant maintained the property for the purpose of continuously selling, using, or giving away marijuana at the property.

Authority:

Jackson v. Virginia (1979) 443 U.S. 307, 314

Cole v. Arkansas (1948) 333 U.S. 196, 202

People v. Kunkin (1973) 9 Cal.3d 245, 251

People v. Zemek (2023) 93 Cal.App.5th 313, 340

People v. Garcia (2014) 224 Cal.App.4th 519, 525

Seventh Holding:

Substantial evidence does not support the defendant’s conviction for felon in possession of ammunition. His prior felony under section 11359 was reduced to a misdemeanor and sealed. As a result of the resentencing and sealing, the prior felony is no longer a felony and cannot be used to support the defendant’s conviction. Because he has no other prior felony convictions, conviction on that count is unsupported and must be reversed.

In 2016, voters approved Proposition 64, which, among other things, generally reduced marijuana-related crimes from felonies to misdemeanors, including the offense of possession under section 11359. Proposition 64 also added section 11361.8, which provides a mechanism to obtain relief for those currently serving a sentence, or for those who had completed a sentence, for a marijuana offense affected by Proposition 64. For those qualifying defendants who have completed a sentence, the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid.

Further, the Legislature has provided that a conviction that has been ordered sealed pursuant to section 11361.8 is deemed never to have occurred, and the person may reply accordingly to any inquiry about the events. The parties agree that, because the defendant had his prior felony conviction reduced to a misdemeanor under Proposition 64 and sealed, he was no longer a felon in possession of ammunition, and the count must be reversed.

Authority:

HSC 11361.8

HSC 11361.9

People v. Smit (2018) 24 Cal.App.5th 596, 599, 600

People v. Jessup (2020) 50 Cal.App.5th 83, 88

People v. Saelee (2018) 28 Cal.App.5th 744, 751

People v. Taylor (2021) 60 Cal.App.5th 115, 120, fn. 3.

Eighth Holding:

Penal Code section 654 provides in part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

Section 654 may apply to an indivisible course of criminal conduct involving violations of different statutes, where the defendant commits the violations with a single intent and objective. It has been held that section 654 applies to prevent a defendant from being punished for both possession of marijuana and cultivation of marijuana where the possession was merely incidental to the cultivation.

A court’s implicit or express finding that a defendant harbored different intents and objectives for purposes of section 654 is reviewed for substantial evidence. The parties agree, and we concur, that substantial evidence does not support the trial court’s implicit finding that the defendant harbored different intents and objectives with respect to counts 6 and 7, cultivation of marijuana and possession of marijuana. The court must stay the sentence on one of the two counts.

Authority:

PEN 654

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Rodriguez (2009) 47 Cal.4th 501, 507

People v. Vasquez (2020) 44 Cal.App.5th 732, 736–737

People v. McDaniel (1957) 154 Cal.App.2d 475, 485–486

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

Ninth Holding:

Health and Safety Code section 11372.7–which imposes a drug program fee for violation of its chapter–expressly excludes section 11357(b), possession of more than an ounce of marijuna, from its application. Thus, the trial court erred in imposing the fee under that that section, and it must be stricken, along with other fees that came into play based on that improperly imposed assessment.

Authority:

HSC 11372.7(e)

Tenth Holding:

The minute order contains several errors that must be corrected: (1) with respect to count 2 at page 3, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (2) with respect to count 2 at page 4, the minute order identifies the amount of penalty assessments as $3,210 instead of $310; (3) with respect to count 1 at page 5, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (4) with respect to count 5 at pages 5 and 6, all fees and penalties are improper because they were not imposed as part of the oral pronouncement of sentence.

A trial court’s oral pronouncement of sentence constitutes the judgment in a criminal case, and to the extent there is a discrepancy between the oral pronouncement and a minute order or abstract of judgment, the oral pronouncement will control. Reviewing courts on appeal may correct any discrepancy that exists between a trial court’s oral pronouncement of sentence and a minute order or abstract of judgment.

Authority:

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

Case 000596

Error and/or relief

On resentencing under section 1172.75, the court ordered that the original fines and fees imposed nearly 30 years earlier would remain the same. They are ordered stricken.

First Holding:

Effective January 1, 2025, section 1465.9 was amended to provide 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. Accordingly, the portion of the judgment imposing the restitution fine is vacated.

Authority:

PEN 1465.9

Second Holding:

The $70 fee imposed for AIDS education must be vacated. The original sentencing court imposed this fee pursuant to section 264(b), which states in relevant part: The judge may assess a fine not to exceed $70 against a person who violates Section 261 or former Section 262 with the proceeds of this fine to be used in accordance with section 1463.23. Section 1463.23, however, was repealed effective January 1, 2018. The provision authorizing the AIDS education fee (sec. 264, subd. (b)) was impliedly repealed in 2018, when the referenced statute (sec. 1463.23) was actually repealed, since it is no longer possible for the proceeds of this fine to be used in accordance with section 1463.23. Accordingly, the AIDS education fee is vacated.

Authority:

Repeal of PEN 1463.23

Third Holding:

The abstract of judgment filed in 2024 does not reflect the restitution fine or the AIDS education fee. We further note that the sentencing minute order similarly does not refer to any fines and fees imposed. Nevertheless, it is well established that where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Accordingly, the clerk of the superior court is ordered to prepare an amended abstract of judgment and an amended sentencing minute order reflecting that the previously imposed restitution fine and AIDS education fee are vacated.

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 260–261

Case 000587

Error and/or relief

On appeal from a hearing under section 1172.75, the appellate court struck the balance of the restitution fine as it was ordered more than 10 years prior to the resentencing.

First Holding:

Effective January 1, 2025, section 1465.9 was amended and now 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.

Authority:

PEN 1465.9(d)

Second Holding:

Respondent asserts the trial court did not impose the restitution fine nor parole revocation fine at the time of resentencing and therefore it must be stricken for that reason. Generally, respondent is correct.

Authority:

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

People v. Frederickson (2020) 8 Cal.5th 963, 1027 [striking a restitution fine from the record and the abstract of judgment where the court failed to orally impose the fine during the sentencing hearing]

People v. Nilsson (2015) 242 Cal.App.4th 1, 34 [resentencing necessarily requires a court to impose a new sentence, including any fines, fees, and assessments]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [the oral pronouncement of judgment controls]

Third Holding:

In this instance, however, the trial court merely reaffirmed the original judgment with the exception of striking the now-invalid prior prison term enhancement. The judgment following the resentencing is not yet final, we conclude appellant is entitled to have the restitution fine stricken. As appellant’s restitution fine was first imposed more than 10 years ago, it is now unenforceable and uncollectible under section 1465.9(d).

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted on another issue Mar. 11, 2026, S295038

In re Estrada (1965) 63 Cal.2d 740, 744–745 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

Fourth Holding:

Section 1465.9(d) does not apply to the parole revocation restitution fine under section 1202.45. In Kopp, the court vacated any unpaid portion of the defendant’s restitution fine under section 1465.9(d), but nonetheless remanded the matter because a parole revocation fine is still required and was to be set in the same amount as the restitution fine would have been had the court properly considered the defendant’s ability to pay and stayed.

Further, section 1465.9 makes no mention of the parole revocation restitution fine under section 1202.45. We are not to insert a term that was not included in a statute or omit a term that has been included. Although a parole revocation fine is closely related to a restitution fine in that they must be imposed at the same time and in the same amounts, a parole revocation fine serves a different purpose, i.e., to deter a prisoner from violating parole, to incentivize a prisoner’s rehabilitation while on parole, and to recoup costs if parole is violated. That purpose is still relevant where, as here, an inmate might one day be paroled. No principle or authority supports vacating the parole revocation fine.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 12, 24, 30

People v. Massicot (2002) 97 Cal.App.4th 920, 925

People v. Preston (2015) 239 Cal.App.4th 415, 427, 429

Fifth Holding:

It was unnecessary for the trial court to recalculate the defendant’s credit for time served. The sentence from which this appeal was taken has not yet begun to be served, because it was ordered to run consecutive to the one he is currently serving from another county. Under other circumstances, a court may be required to calculate custody credits on a sentence imposed by another county. The present case presents does not present such a circumstance.

Authority:

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1126 [in a determinate sentence case, sentencing court’s imposition of a consecutive sentence replaced another county’s sentence; the second county became the sentencing court]

Case 000584

Error and/or relief

On resentencing under section 1172.75, the restitution fine should not have been reimposed. The abstract of judgment reflects a parole revocation restitution fine that was not imposed. We will modify the judgment to vacate the restitution fine and direct that the trial court prepare an amended abstract of judgment removing the restitution fine and parole revocation restitution fine.

First Holding:

On resentencing, the court reimposed the original $5000 restitution fine, over the defendant’s objection that he had already paid it. Effective January 1, 2025, section 1465.9(d) 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. Here, the trial court reimposed defendant’s original fines, including a $5,000 restitution fine, 30 years after they were originally imposed. Therefore, any unpaid portion remaining on the $5,000 restitution fine must be vacated. The defendant advised the trial court that he had paid it in full, but regardless, any order regarding any remaining unpaid balance shall be vacated.

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted Mar. 11, 2026, S295038 on another point

Second Holding:

The abstract of judgment lists a parole revocation fine of $5,000, but it was not ordered by the court. The abstract must be corrected accordingly.

[GARY note: The court cited no authority for its directive that the abstract of judgment be corrected. Likely because the error and cure seem so obvious. But there is plenty of authority for the court’s order, and I have set out some below.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Case 000582

Error and/or relief

The matter is reversed and remanded for the limited purpose of allowing the trial court, in accordance with this opinion and Kopp, to determine whether the defendant has the ability to pay the various fines, fees, and assessments it previously imposed.

Holding:

While this case was on appeal, the Kopp court concluded that a trial court must conduct an ability-to-pay hearing before imposing a (1) restitution fine above the statutory minimum of $300; or ancillary fees. The Supreme Court also found that, if requested by the defendant, the court must consider the defendant’s inability to pay before imposing a court operations assessment (sec. 1465(a)(1)) or a court facilities assessment (Gov. Code, sec. 70373(a)(1)), allowing the parties on remand to present any relevant evidence or argument on the matter. On remand the defendant shall be afforded the opportunity to assert legal analyses applicable to such a challenge under the excessive fines clauses and argue how the particular facts of this case inform such an inquiry.

Authority:

U.S. Const., 8th Amend.

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

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

Second Holding:

Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to section 1202.4(c).

Authority:

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