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
