Tag Archives: Restitution fine

Fines and fees, Retroactivity

Case: 000180

Posted on by Gary McCurdy

Error and/or relief

The restitution fine imposed more than 10 years ago must be stricken from the judgment.

First Holding:

Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which 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

Second Holding:

The statute is retroactive, because On January 1, 2025, when the amendment became effective, his restitution fine was rendered uncollectible and unenforceable. There is no authority for the People’s assertion that a hearing on a petition for resentencing under section 1172.75 starts a new period of 10 years.

Authority:

In re Mattison (2025) 115 Cal.App.5th 1062, 1069 [applying the amendment to a restitution fine imposed in 2008]

Abstracts and Minutes, Eighth Amendment, Fines and fees, Probation Parole PRCS, Sentencing

Case: 000176

Posted on by Gary McCurdy

Error and/or relief

The $150 restitution fine and the parole revocation fine imposed on count three are unauthorized and must be vacated or stayed. The fine had been imposed on a count that was stayed under Penal Code section 654. Aside from that problem, a separate parole revocation fine cannot be imposed on a misdemeanor offense. Also, the abstract of judgment must be corrected because it incorrectly states that he has a prior strike and was sentenced under Penal Code section 667(b) through (i), or section 1170.12.

First Holding:

When a court imposes multiple punishments in violation of section 654, it acts in excess of its jurisdiction and imposes an unauthorized sentence that can be challenged for the first time on appeal.

Authority:

People v. Soto (2016) 245 Cal.App.4th 1219, 1234

Second Holding:

Defendant is not subject to parole separately for the misdemeanor and is thus not subject to a parole revocation restitution fine on it.

Authority:

People v. Holmes (2007) 153 Cal.App.4th 539, 547

Third Holding:

The abstract of judgment must be corrected because it erroneously states that he has a prior strike and that he was sentenced under section 667(b) through (i), or section 1170.12. There is no indication in the record defendant has sustained a prior strike conviction. We will order the abstract of judgment corrected to reflect that he does not have a strike prior, and he was not sentenced pursuant to section 667(b) through (i), or section 1170.12.

[Gary note: The court cited no authority for the obvious proposition that the abstract of judgment needs to be corrected. I have listed below some of many cases that the court could have relied on.]

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

Abstracts and Minutes, Amelioration, Duty of the court, Fines and fees, Sentencing

Case: 000165

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s resentencing under section 1172.75, the court erred in reimposing an unenforceable restitution order and in failing to update the defendant’s custody credits. Though the court did not orally reimpose the fine or recalculate credit for time served, the amended abstract of judgment reflects the fine and the credits he received at the defendant’s original sentencing.

First Holding:

The restitution fine imposed under section 1202.4(b) Must be vacated because it is over 10 years old.

Authority:

PEN 1465.9(d)

Second Holding:

Where a defendant has served any portion of his sentence under a commitment based upon a judgment which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts. The defendant is entitled to an updated abstract that accurately reflects the amount of custody credits earned.

Authority:

PEN 2900.1

Appellate Principles, Fines and fees

Case: 000151

Posted on by Gary McCurdy

Error and/or relief

Though the court affirmed the other orders of the trial court regarding the resentencing conducted under Penal Code section 1172.75, the restitution fine, ordered more than 10 years earlier, must be stricken.

First Holding:

As a result of amendments effective January 1, 2025, the restitution fine must be stricken, because it has been more than 10 years since it was originally imposed. Penal Code section 1465.9 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. Not only is the unpaid portion now uncollectible, the court must vacate the portion of the judgment imposing it.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 626-627

People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953

Second Holding:

Though the People argue that the 10 years has not passed, because he was resentenced only a few years ago, the People do not identify any legal authority or develop any substantive reasoning supporting the proposition that a component of a defendant’s punishment starts over at resentencing. We therefore need not consider that argument.

However, the plain language of the statute does not support their interpretation and the result they advocate for is in tension with clearly expressed legislative intent to eliminate fees and fines that deepen the poverty cycle for offenders without meeting the financial needs of crime survivors. We find the People’s position untethered from the plain language of the statute and the underlying legislative intent, and in advancing the proposition that the restitution fine was “reimposed” at the resentencing hearing such that the clock affording defendant ameliorative relief from a component of his punishment restarted, they fail to elucidate the point or acknowledge any of the issues such an interpretation necessarily implicates. Therefore, we give effect to the plain language of section 1465.9(d) providing that any portion of a judgment imposing a restitution fine under section 1202.4 shall be vacated 10 years after imposition.

Authority:

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [If a party’s briefs do not provide legal argument and citation to authority on each point raised, the court may treat it as waived, and pass it without consideration.]

Fines and fees, Sentencing

Case: 000149

Posted on by Gary McCurdy

Error and/or relief

Where the sentence is life without the possibility of parole, it was improper to impose a parole revocation fine, and it must be stricken.

Holding:

A parole revocation fine may not be imposed for a term of LWOP, as the statute is expressly inapplicable where there is no period of parole. Moreover, our Supreme Court recently recognized that the parole revocation fine statute does not apply where a defendant is given both an LWOP sentence and an indeterminate term.

Authority:

PEN 1202.45

People v. Jenkins (2006) 140 Cal.App.4th 805, 819

People v. Alvarez (2025) 18 Cal.5th 387, 485–486

Appellate Principles, Fines and fees, Sentencing

Case: 000148

Posted on by Gary McCurdy

Error and/or relief

Where the trial court intended to impose the minimum restitution fine, but mistakenly believed the minimum was $600 rather than $300, the appellate court modified the restitution fine to $300 and directed the trial court to prepare an amended minute order following sentencing and an amended abstract of judgment reflecting these amounts. Here, the record makes clear that the trial court intended to impose the statutory minimum fine. We therefore modify the judgments to impose a $300 restitution fine with a matching, suspended parole revocation restitution fine in each case.

First Holding:

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. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000).

Authority:

PEN 1202.4(b)(1)

Second Holding:

[GARY NOTE: The court did not cite any authority for its jurisdiction to modify the mistaken order of the court below, but it does have that authority under PC 1260.]

Authority:

PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

Abstracts and Minutes, Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case: 000129

Posted on by Gary McCurdy

Error and/or relief

The trial court must correct the abstract of judgment to reflect that the court never imposed fines or fees other than restitution to the Victim’s Compensation Board, and must recalculate his actual custody credits.

First Holding:

The abstract of judgment must be corrected to reflect that the court waived the imposition of a restitution fine and the parole revocation fine and other fines and fees.  [GARY NOTE: The court did not cite authority for correction of the abstract of judgment, but the law is clear that it has the authority to do so, and I have listed some authorities below.]

Authority:

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

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

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

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

Second Holding:

As the People did not object in the court below, the People have forfeited the issue of the propriety of the trial court order waiving the restitution and other fines and fees.

Authority:

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

Third Holding:

When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing. [GARY NOTE: the court did not cite authority for remanding for the court to determine custody credits, but the law is clear, per the authorities I have set forth below.]

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Abstracts and Minutes, Fines and fees

Case 000087

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded to allow the trial court to amend the abstract of judgment to reflect that the $30 criminal conviction assessment (Gov. Code, sec. 70373), the $40 court operations assessment (Pen. Code, sec. 1465.8), the $300 restitution fine (Pen. Code, sec. 1202.4), and the $300 parole revocation restitution fine (Pen. Code, sec. 1202.45), were vacated.

Holding:

The court has inherent power to correct clerical errors in abstract of judgment.

Authority:

People v. Baker (2021) 10 Cal.5th 1044, 1109

Abstracts and Minutes, Fines and fees, Sentencing

Case 000083

Posted on by Gary McCurdy

Error and/or relief

The amount of the victim restitution order must be amended, the restitution collection fee must be stricken. And an error in the minute order must be corrected to reflect that two misdemeanors were dismissed.

First Holding:

Victims are entitled to an amount of restitution so as to make them whole but not more than their actual losses arising out of the defendant’s criminal conduct. Restitution is not intended to provide the victim with a windfall. Although the court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole, here the court awarded the victim what amounts to a windfall.

Authority:

People v. Nichols (2017) 8 Cal.App.5th 330, 342

People v. Baker (2005) 126 Cal.App.4th 463, 470

Second Holding:

The 10 percent restitution collection fee is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 625 [On September 18, 2020, the Governor signed AB 1869, which eliminated the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and eliminated all outstanding debt incurred as a result of the imposition of specified administrative fees.]

Third Holding:

The minute order fails to reflect that two misdemeanor counts were dismissed, and it must be corrected.

[Gary note: The court did not cite any authority for its order for correction, but there is plenty out there. I have set forth a few cases the court could have cited, for your convenience.]

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324
People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Zackery (2007) 147 Cal.App.4th 380, 387–388
People v. Gobert (2023) 89 Cal.App.5th 676, 689
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes, Sentencing

Case 000062

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed but stayed the enhancement for a prior serious felony (sec. 667(a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (sec. 451.1(a)(1)). We can modify the judgment without a remand. We also strike fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.

First Holding:

A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (sec. 667(a)) that was not alleged. A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.

Authority:

PEN 1170.1(e)

People v. Anderson (2020) 9 Cal.5th 946, 953

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

It is improper to stay the punishment for an enhancement, as opposed to striking it.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Third Holding:

Because the court clearly indicated it would not impose these enhancements, remand is not required.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Fourth Holding:

The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay. The abstract of judgment must be amended to conform to the oral judgment.

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938