In this appeal following resentencing under section 1172.75, the restitution fine, now older than 10 years, must be vacated.
Under section 1465.9(d), the restitution fine must be vacated, as it was imposed more than 10 years ago.
PEN 1465.9(d)
In 2025, the trial court resentenced defendant pursuant to section 1172.75—striking the two prior prison term enhancements—and otherwise reimposed the prior judgment from 1996, including a $10,000 restitution fine. The trial court erred by reimposing the restitution fine and it must be vacated.
Section 1465.9(d) provides: “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.” Resentencing does not reset the 10-year expiration of a section 1202.4 restitution fine.
PEN 1465.9(d)
People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted on other grounds Mar. 11, 2026, S295038
The court should have granted the defendant’s motion to vacate the restitution fine, which was more than 10 years old.
Effective January 1, 2025, AB 1186 (Stats. 2024, ch. 805, sec. 1) amended section 1465.9 to add subdivision (d). The statute now provides: “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.”
PEN 1465.9(d)
Defendant’s restitution fine was effectively vacated when section 1465.9(d) went into effect. The defendant’s motion, however, was filed a few months before the law took effect. For the statute to apply, it is not clear that a motion is even required, as the law declares the fine uncollectible and that any portion of a judgment imposing those fines is to be vacated. In the interests of judicial economy, we will direct the trial court to correct the abstract of judgment to reflect that the restitution fine has been vacated.
In re Mattison (2025) 115 Cal.App.5th 1062, 1069
On resentencing under section 1172.75, the court should have vacated the restitution fine, as it was more than 10 years old.
Effective January 1, 2025, AB 1186 (Stats. 2024, ch. 805, sec. 1) amended section 1465.9 to add subdivision (d). The statute now provides: “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.” The resentencing pursuant to section 1172.75 did not restart section 1465.9’s 10-year clock anew.
PEN 1465.9(d)
People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted and briefing deferred on a different issue, March 11, 2026, S295038
The defendant was resentenced under section 1172.75. The restitution fine must be vacated, as it is more than 10 years old. The abstract of judgment must be corrected to reflect the oral pronouncement of judgment accurately.
Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which states: “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.” The fine in this case appears to have been imposed at the original sentencing in 1994, and must be vacated.
PEN 1469.5
Though the abstract of judgment from 1994 does not reflect whether the trial court imposed the mandatory minimum restitution fine under section 1202.4(b), we presume, as the People argue, the court did. Thus, the superior court’s order imposing the restitution fine at the defendant’s resentencing in 2024 essentially reimposed the fine imposed in 1994, which section 1465.9 has now made unenforceable and uncollectible. We construe the superior court’s order as simply reimposing the original restitution fine, and the 10-year clock did not start anew.
EVID 664 [It is presumed that official duty has been regularly performed]
People v. Ramirez (2021) 10 Cal.5th 983, 1042 [we presume that the trial court knew the law and followed it in imposing a restitution fine under section 1202.4]
People v. Stowell (2003) 31 Cal.4th 1107, 1114 [a trial court is presumed to have been aware of and followed the applicable law]
People v. Salstrom (2025) 117 Cal.App.5th 596, review granted on another point, March 11, 2026, S295038
After imposing the $300 restitution fine, the superior court stated: “$300 parole revocation fine, that is stayed pending successful—Well, I am going to strike that. There is no parole that’s going to be granted in this case.” As noted, the minute order and abstract of judgment indicate the court (1) imposed and stayed execution of a parole revocation fine under section 1202.45 and (2) imposed and struck “all financial obligations, excluding any actual victim restitution.” The reporter’s transcript of the resentencing hearing does not state the court made these rulings. The superior court must correct the minute order and abstract of judgment to reflect the oral pronouncement of judgment.
People v. Burke (2023) 89 Cal.App.5th 237, 244 [Ordinarily, where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls]
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [The record of the oral pronouncement of the court controls over the clerk’s minute order]
People v. Portillo (2023) 91 Cal.App.5th 577, 603 [the oral pronouncement of sentence controls over a subsequently entered minute order]
Courts may correct clerical errors at any time, and appellate courts . . . have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.
People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Jones (2012) 54 Cal.4th 1, 89
People v. Garcia (2024) 101 Cal.App.5th 848, 859
People v. Gobert (2023) 89 Cal.App.5th 676, 689 [we must correct the discrepancy by ordering the trial court to modify the minute order]
On resentencing under section 1172.75, the trial court erred by awarding fewer presentence conduct credits than ordered at the original sentencing, and the restitution fine must be vacated as it is now more than 10 years old.
Erroneous computation of presentence credits are subject to correction by the trial court or the appellate court when presented.
People v. Guillen (1994) 25 Cal.App.4th 756, 764
The restitution fine was imposed at the time of the original sentencing in 1995. Section 1465.9(d) 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,
PEN 1465.9(d)
It was error for the court to impose a no contact order under section 1202.05, because the victim was an adult. The trial court was required, however, to consider whether to issue a protective order under section 136.2(i)(1). We accordingly remand the matter for the trial court to do so. In addition, the abstract of judgment must be corrected to reflect that the restitution fine was stayed, and to reflect the actual date of sentencing. Also, the minute order fails to reflect the true finding of aggravating circumstances on one of the counts.
Section 1202.05 provides that if a defendant receives a prison sentence for certain sexual offenses against a victim who is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim. The restrictions on visitation imposed by the provision apply only to victims who are under the age of 18 at the time of the contemplated visitation. Section 136.2(i)(1) does provide authority for the court to impose a protective order.
Although the trial court acknowledged the victim’s status as an adult when it issued the order, there is nothing in the record to show that the trial court contemplated issuing the no-contact order under section 136.2(i)(1). Moreover, the no-contact order issued by the court did not conform to the requirements of section 136.2(i)(1). Section 136.2(i)(1) provides in part that, when a criminal defendant has been convicted of a crime that requires the defendant to register pursuant to section 290(c), the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime.
PEN 1202.05
PEN 136.2(i)(1)
People v. Scott (2012) 203 Cal.App.4th 1303, 1323
The abstract of judgment contains clerical errors that should be corrected. At sentencing, the court imposed but stayed a $10,000 restitution fine under section 1202.4(b). The abstract of judgment reflects that the fine was imposed but not that it was stayed. I
n addition, the abstract incorrectly indicates that the defendant was sentenced more than a month after the date he was actually sentenced. We accordingly direct the trial court to amend the abstract to make these corrections. In addition, the sentencing minute order should be corrected to accurately reflect the sentence orally pronounced.
The corrected minute order from the bifurcated proceeding at which the trial court found the aggravating circumstances true does not reflect that the court found those circumstances true as to one of the counts.
People v. Mitchell (2001) 26 Cal.4th 181, 185-188
People v. Wynn (2010) 184 Cal.App.4th 1210, 1221
At the resentencing hearing under section 1172.75, the superior court imposed a $10,000 restitution fine under section 1202.4(b), that is no longer enforceable or collectible, and it imposed additional fines and fees that were not originally imposed and which came into effect after the defendant’s original sentencing. We modify the judgment by vacating the challenged fines and fees.
In 2021, the Legislature enacted SB (Stats. 2021 (2021-2022 Reg. Sess.), retroactively invalidating prison prior enhancements imposed pursuant to section 667.5(b), except those that were based on a conviction for a sexually violent offense. Once the court verifies that the current judgment includes such a sentencing enhancement, the court shall recall the sentence and resentence the defendant. Resentencing under section 1172.75 is not limited to striking the section 667.5(b), enhancement. Rather, the court must conduct a full resentencing.
PEN 1172.75
People v. Green (2024) 104 Cal.App.5th 365, 368, 373
People v. Rogers (2025) 108 Cal.App.5th 340, 348, fn. 5
People v. Gray (2024) 101 Cal.App.5th 148, 163
People v. Burgess (2022) 86 Cal.App.5th 375, 381
People v. Garcia (2024) 101 Cal.App.5th 848, 855
Our review of the imposition of fines and fees is de novo.
People v. Arroyo (2016) 62 Cal.4th 589, 593 [de novo review in cases of statutory interpretation]
People v. Guillen (2013) 218 Cal.App.4th 975, 983 [authority of trial court to impose fine or fees turns on relevant statutory provisions and presents essentially an issue of law]
Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides that, on 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. The defendant was resentenced in November 2024, weeks before the effective date of the amendment. But the amendment applies retroactively to his sentence. The section 1202.4 restitution fine, which was imposed over 10 years ago in 2003, must therefore be vacated.
PC 1465.9
In re Estrada (1965) 63 Cal.2d 740, 748 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]
The statute authorizing the remaining fines and fees did not become effective until after the defendant’s conviction. Accordingly, the superior court was not authorized to impose these fines and fees on resentencing.
People v. Alford (2007) 42 Cal.4th 749, 754
People v. Castillo (2010) 182 Cal.App.4th 1410, 1414
People v. Hayes (1989) 49 Cal.3d 1260, 1274 [A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise]
At a full resentencing conducted while vacating the defendant’s one-year prior prison sentence enhancements pursuant to Penal Code section 1172.75, the trial court declined to consider whether two of defendant’s prior “strike” convictions were still valid under the Three Strikes Reform Act of 2012, denied his request to dismiss those strikes under section 1385, imposed a new 10-year criminal protective order, and re-imposed a $5,000 restitution fine.
The matter is reversed for the court to hold a full resentencing hearing and exercise its discretion on whether or not to strike the prior convictions. Further, the court had no jurisdiction to reimpose a restitution fine because it had been ordered more than 10 years earlier and was rendered expired.
Under section 1172.75, a defendant who is eligible to have a prior prison sentence enhancement stricken is entitled to a full resentencing, at which time the trial court is to apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
PEN 1172.75
People v. Espino (2024) 104 Cal.App.5th 188, 193, 195, review granted* Oct. 23, 2024, S286987
[*Gary note: The Supreme Court issued its opinion in Espino on July 2, 2026, and affirmed the result in the Court of Appeal Espino decision–that a person is entitled to relief under section 1172.75 even if the punishment for the now-invalid prior prison term enhancement was stricken–resolving a question that was left unanswered in People v. Rhodius (2025) 17 Cal.5th 1050)]People v. Green (2024) 104 Cal.App.5th 365, 373
In Guevara, our Supreme Court held that a trial court engaged in a full resentencing under section 1172.75 of a person serving a life sentence under the Three Strikes Law must apply the Three Strikes Reform Act of 2012, including its provision according trial courts a discretionary override—as to defendants who would otherwise be eligible for relief—not to grant relief if the court determines that resentencing the defendant would pose an unreasonable risk of danger to public safety.
People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 849-850
Reversal and remand are necessary so that the trial court may consider whether the Reform Act would apply to the third-strike sentences imposed in this case and, if so, whether exercise of the court’s discretionary override is warranted. On remand, the court may also entertain any further requests to dismiss the prior strike convictions under section 1385(a)—but not under section 1385(c).
People v. Burke (2023) 89 Cal.App.5th 237, 243-244
However, the court may not impose a restitution fine pursuant to section 1202.4(b) because the 2025 amendment to section 1465.9 provides that a restitution fine expires 10 years after the date of imposition. Because the restitution fine in this case was imposed over 25 years ago, it expired and may not be reimposed.
PEN 1465.9
People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038, on another point)
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.
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.
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
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.
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
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.
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
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.]
People v. Dowl (2013) 57 Cal.4th 1079, 1086
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.
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.]
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.
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
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.
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.
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.
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
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.
HSC 11372.7(e)
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.
People v. Gobert (2023) 89 Cal.App.5th 676, 689
People v. Scott (2012) 203 Cal.App.4th 1303, 1324
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.
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.
PEN 1465.9
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.
Repeal of PEN 1463.23
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.
People v. Clark (2021) 67 Cal.App.5th 248, 260–261
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.
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.
PEN 1465.9(d)
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.
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]
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).
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]
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.
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
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.
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]