Tag Archives: Restitution fine

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000584

Posted on by Gary McCurdy

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

Fines and fees, Sentencing

Case 000582

Posted on by Gary McCurdy

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

Due process, Equal protection, Fines and fees, Sentencing

Case 000580

Posted on by Gary McCurdy

Error and/or relief

Judgment is reversed and remanded for the court to consider the fines and fees imposed with regard to ability to pay and under the excessive fines doctrine.

First Holding:

In Kopp, the Supreme Court addressed how court-ordered payments should be analyzed when a defendant claims inability to pay. There are three categories: fines, ancillary costs, and victim restitution. “Fines” refers to penalties inflicted by the sovereign for commission of offenses. I.e., “fine” refers to a legislatively provided punishment following a criminal conviction.

By contrast, “ancillary costs” refers to payments that are generally not intended to punish for the commission of a crime but instead are funding mechanisms, created by the Legislature to reimburse a government agencies for expenditures or to otherwise fund a broad assortment of services. “Restitution” refers to payments made to compensate crime victims for economic loss caused by an offense.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 9, 11-12

Second Holding:

Restitution fines under section 1202.4 constitute punishment and therefore fines rather than true restitution and that parole revocation restitution fines under section 1202.45—which are in the same amount as restitution fines—are likewise punitive and therefore fines. Such fines do not need to be structured to reflect each person’s ability and avoid disproportionate burdens. Accordingly, due process does not require courts to consider the ability of defendants to pay fines before imposing them. Instead, excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-14, 22-23

Bearden v. Georgia (1983) 461 U.S. 660, 666, fn. 8

San Antonio Independent School Dist. v. Rodriguez (1973) 411 U.S. 1, 22

Third Holding:

Ancillary costs or assessments should be imposed on criminal defendants only if they have the ability to pay the costs, on equal protection grounds. Kopp noted that the Legislature has enacted a robust fee waiver system in civil cases. In addition, because both the civil operations and facilities assessments imposed on the defendant in Kopp were enacted to raise money for the courts and were ultimately deposited into the same fund, the Supreme Court concluded that there appears no rational basis to deny only indigent criminal defendants the ability to avoid those costs.

Accordingly, the court in Kopp directed the trial court on remand to consider the defendant’s ability to pay before imposing a court operations assessment under section 1465.8 or a court facilities assessment under Government Code section 70373.

Authority:

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

Appellate Principles, Jurisdiction, Sentencing

Case 000560

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This appeal was dismissed as from a nonappealable order, but it is summarized for providing numerous principles regarding appealability. It purported to be an appeal from a postconviction motion to strike restitution fines that were imposed more than 10 years earlier. The authority relied on by the appellant was section 1465.9, 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 complication in this case is that the fines were imposed in 1989 under Government Code section 13967. The trial court pointed out that the section was repealed in 2003, and concluded that the change reflected in Penal Code section 1465.9 did not apply because no restitution fines were imposed under section 1202.04.)

First Holding:

Before we may consider the merits of the defendant’s appeal, we must first determine whether the trial court’s order denying his postjudgment motion to vacate his restitution fines is appealable. The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. An order made after judgment is appealable if it affects a defendant’s substantial rights.

A trial court order denying relief that the court has no jurisdiction to grant does not affect a defendant’s substantial rights and is therefore not appealable under section 1237(b). Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.

In this case, the defendant was sentenced in 1989 and began serving his sentence that same year. This court affirmed the judgment on appeal, and the remittitur issued by April 1991. Thus, absent an exception to the general common law rule, the trial court lacked jurisdiction in 2025 to grant the defendant’s petition and resentence him by vacating his restitution fines. 

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 254 [Because an appealable judgment or order is essential to appellate jurisdiction, the appellate court must consider the question of appealability sua sponte, and dismiss the appeal if the judgment or order is found to be nonappealable]

People v. Loper (2015) 60 Cal.4th 1155, 1159

People v. E.M. (2022) 85 Cal.App.5th 1075, 1085

People v. Roy (2025) 110 Cal.App.5th 991, 997

Second Holding:

Where a defendant whose conviction is final files a statutorily unauthorized freestanding petition, both the court below and this court lack jurisdiction to consider the arguments raised therein. In that circumstance, the appeal must be dismissed.
.

Authority:

People v. Garcia (2025) 114 Cal.App.5th 139, 144

Fines and fees, Sentencing

Case 000547

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the balance of the restitution fine must be struck, as it was imposed more than 10 years ago.

Holding:

Effective January 1, 2025, AB 1186 (Stats. 2024, ch. 805, sec. 1) amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 that is not paid within 10 years cannot be collected upon. The restitution fine here more than 10 years ago. We therefore vacate the fine.

Authority:

PEN 1465.9(d)

In re Mattison (2025) 115 Cal.App.5th 1062, 1066