Tag Archives: Restitution fine

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

Case 001111

Posted on by Gary McCurdy

Error and/or relief

We vacate defendant’s restitution fine, and remand this matter for the trial court to recalculate defendant’s custody credits and issue an amended abstract of judgment. The argument regarding imposition of the upper term is forfeited for lack of objection in the trial court.

First Holding:

Under California’s determinate sentencing law as it currently stands, excluding properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term and a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapmanstandard of review, the defendant is entitled to a remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 757

Chapman v. California (1967) 386 U.S. 18

Second Holding:

A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Scott (2015) 61 Cal.4th 363, 406

Third Holding:

Strong policy reasons support this forfeiture rule. It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Salazar (2016) 63 Cal.4th 214, 239–240

People v. French (2008) 43 Cal.4th 36, 46

Fourth Holding:

Even constitutional claims may be forfeited if the issue is not raised below, and discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.

Absent a substantive change in the law that applies retroactively or an extenuating circumstance such as the futility of objecting under the then-governing substantive law, neither of which is at issue here, the policy reasons underlying the forfeiture doctrine fully support its application where a defendant remains silent in the trial court during resentencing and then seeks to obtain appellate relief based on an asserted sentencing error that could have been raised at the time of sentencing.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 880–881, 887-888, fn. 7

People v. Salazar (2023) 15 Cal.5th 416, 431–432

People v. Stamps (2020) 9 Cal.5th 685, 698–699

People v. Perez (2020) 9 Cal.5th 1, 7–8

People v. Brooks (2017) 3 Cal.5th 1, 92

People v. Scott (1994) 9 Cal.4th 331, 356 [complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal]

Fifth Holding:

The restitution fine imposed in 2002 must be vacated under section 1465.9(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(d)

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

Sixth Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.

We remand for the court to determine the appropriate credit for time served.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Salazar (1994) 29 Cal.App.4th 1550, 1557 [trial court best positioned to ensure custody credits correctly calculated]

(Gary note: The court quoted Buckhalter language that did not involve determination of credit for time served up to the original date of sentence. Thus, it is not uncommon to see language citing Buckhalter to mention the actual days in custody, with no mention of conduct time earned under section 4019 prior to the original sentencing. Buckhalter was concerned only with the time between the original sentencing and the resentencing.

(If you are looking for authority regarding recitation of the conduct credits earned prior to the initial sentencing, you may wish to review Sek, which the Court of Appeal did not cite in this case. I do think, however, that it would be valuable to examine the authority Sek relied on for its conclusion that the court must calculate the defendant’s conduct credit earned prior to his original sentencing.)

People v. Sek (2022) 74 Cal.App.5th 657, 673

Discretion, Due process, Duty of the court, Eighth Amendment, Elements of crime, Equal protection, Fines and fees, Sentencing

Case 001110

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted under both section 4500 (assault by a life prisoner) and section 4501 (assault by means of force likely to produce great bodily injury by a prisoner) for the same act. Where section 4500 applies, the defendant cannot also be convicted of section 4501 for the same act.

The court misunderstood its discretion on imposing the minimum restitution fine. Also, the court failed to consider the defendant’s ability to pay before deteremining the amount of the restitution fine, and it did not recognize that it had discretion regarding the imposition of the assessments that it thought wer mandatory.

Defendant’s conviction for assault by a prisoner under section 4501(b) is reversed. We vacate the restitution fine, the court operations assessment, and the court facilities assessment and remand for the court to properly exercise its discretion regarding the amount of the restitution fine and immposition of assessments.

First Holding:

Penal Code section 4501(b) specifically states that, except as provided in section 4500, every person confined in the state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony.

Sections 4500 and 4501 describe two mutually exclusive crimes. Section 4501’s “except as provided in section 4500” clause prevents the two statutes from covering the same conduct. It clarifies that when both statutes would otherwise apply, section 4500 governs and section 4501 is inapplicable. So when a defendant is convicted as provided in section 4500, the defendant cannot also be convicted as provided in section 4501 for the same conduct.

Authority:

People v. Nava (2024) 107 Cal.App.5th 624, 628-629

Second Holding:

The court erred in concluding that the amount of the restitution fine it imposed was the minimum required by statute. It imposed a $300 restitution fine for each of the seven counts of conviction, stating that $2100 was the minimum mandatory amount. The court misunderstood its discretion.

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 of not less than $300 nor more than $10,000. This statute provides for a restitution fine in every case. A “case” is a formal criminal proceeding, filed by the prosecution and handled by the court as a separate action with its own number. The provision does not contemplate a separate restitution fine for each individual count.

The court misunderstood its discretion because the minimum restitution fine would be $300 for the entire case, not $300 per conviction. The matter must be remanded for reconsideration of the appropriate restitution fine.

Authority:

People v. McAllister (2026) 122 Cal.App.5th 92, 96

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court]

Third Holding:

 A defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state Constitutions. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine, but the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines, such as the restitution fine under section 1202.4 and the parole revocation restitution fine under section 1202.45.

Authority:

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

Fourth Holding:

A defendant may seek to contest the defendant’s inability to pay the amount exceeding the statutory minimum. Under section 1202.4(c), inability to pay may be considered in increasing the amount of the restitution fine in excess of the minimum fine. Under 1202.4(d), in setting the amount of the fine in excess of the minimum fine the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay.

Authority:

PEN 1202.4(c), (d)

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fifth Holding:

If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment.

Authority:

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

Amelioration, Fines and fees, Sentencing

Case 001107

Posted on by Gary McCurdy

Error and/or relief

At defendant’s resentencing hearing under section 1172.75, the court should have recalculated his credit for time served. The reimposed restitution fine should have been stricken, as it was imposed more than 10 years earlier.

First Holding:

The court failed to update the defendant’s credit for time served as of his resentencing. We remand for that purpose.

Authority:

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

People v. Montalvo (1982) 128 Cal.App.3d 57, 62

Second Holding:

The restitution fine imposed in 2013 should be stricken as it is more than 10 years old. Section 1465.9(d), effective January 1, 2025, states 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. On remand, the court must vacate that order.

Authority:

PEN 1465.9(d)

Appellate Principles, Due process, Fines and fees, Pleading, Sentencing, Standard of review

Case 001092

Posted on by Gary McCurdy

Error and/or relief

It was error to sentence the defendant under the Three Strikes Law, because the prior serious felony was alleged in the information only as a five-year enhancement under section 667(a), not as a strike. In light of Kopp, the matter is remanded to permit the defendant to raise a challenge to the restitution fine of $10,000.

First Holding:

The three strikes law imposes an alternative sentencing scheme if the defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions. The three strikes law thus requires that prior felony convictions be pleaded and proved.

In addition to the statutory requirement, the defendant has a due process right to fair notice of the specific sentence enhancements or alternative sentencing schemes that will be invoked to increase punishment. The touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against the defendant.

Authority:

PEN 667(c), (e)

PEN 1170.12(a), (c)

People v. Sawyers (2017) 15 Cal.App.5th 713, 720

Second Holding:

As a preliminary matter, the People contend that the defendant forfeited any argument concerning his three strikes sentence by failing to object at the sentencing hearing. We exercise our discretion to reach the merits of defendant’s argument to forestall any claim of ineffective assistance of counsel.

We also exercise our discretion to reach the merits because the claimed error affected substantial rights by depriving the defendant of timely notice of the potential sentence he faced.

The operative information pled that he had a prior serious felony conviction under section 667(a), which subjected him to a sentence enhancement of five years. But it did not plead that the conviction qualified as a prior strike subjecting him to the alternative sentencing scheme of the three strikes law. The court therefore erred by imposing a three strikes sentence.

It was the People’s burden to properly plead the allegations under the three strikes law, not the defendant’s responsibility to ferret them out.

Authority:

People v. Crittenden (1994) 9 Cal.4th 83, 146

People v. Anderson (2020) 9 Cal.5th 946, 963

People v. Sawyers (2017) 15 Cal.App.5th 713, 727, 726 [court erred by imposing a three strikes sentence when the information alleged a prior serious or violent felony under sec. 1170(h)(3), and a prior prison term enhancement under sec. 667.5(b), but did not refer to the three strikes law]

Third Holding:

The pleading requirement is meant to give sufficient notice to permit the defense to make informed decisions about the case.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 964 [failure to plead a particular firearm enhancement was not harmless when the defendant received notice midway through the sentencing hearing, which was too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy]

Fourth Holding:

A competent motion by the defense to urge the court to dismiss the strike would have required preparation and could not have been raised orally at the sentencing hearing, when the court announced its intention to impose a three strikes sentence.The violation of the statutory pleading requirement therefore was prejudicial.

And for the same reasons, to the extent that the pleading defect violated the defendant’s due process right to fair notice, the People have not shown that the error was harmless beyond a reasonable doubt.

The violation of the pleading and proof requirement prejudiced the defendant. We therefore vacate his sentence on count 2 and direct the court to resentence him on that count without applying the three strikes law.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Chapman v. California (1967) 386 U.S. 18, 24

In re Vaquera (2024) 15 Cal.5th 706, 726 [the People’s failure to give the defendant notice of his potential sentence under the one strike law violated his right to due process and was not harmless]

Fifth Holding:

In light of Kopp, decided after the sentencing in this case, we remand the matter for the trial court to consider challenges to the imposition of the $10,000 restitution fine under the federal and state constitutional excessive fines analysis, which considers ability to pay.

Authority:

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

Abstracts and Minutes, Fines and fees, Sentencing

Case 001090

Posted on by Gary McCurdy

Error and/or relief

It was improper for the court to impose an enhancement for great bodily injury under section 12022.7 in addition to the enhancement for use of firearm under section 12022.53(d). Further, the abstract of judgment reflects a $10,000 restitution fine that was not included in the oral pronouncement, and it must be corrected.

First Holding:

On count 1, the trial court imposed both a 3-year determinate term for great bodily injury under section 12022.7(a) and a 25-years-to-life indeterminate term for personally and intentionally discharging a firearm and proximately causing great bodily injury under section 12022.53(d). Because section 12022.53(d) requires a finding of great bodily injury, we see this as analogous to Gonzales, and order the enhancement under section 12022.7 stayed.

In Gonzales, the Supreme Court held that section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.

Authority:

PEN 12022.7

PEN 12022.53(d)

People v. Gonzalez (2008) 43 Cal.4th 1118, 1130

Second Holding:

The sentencing court imposed a restitution fine of $10,000 but suspended it pending a hearing on the defendant’s ability to pay. The abstract of judgment, however, indicates that the $10,000 restitution fine was imposed, and there is no indication that an ability to pay hearing occurred. We therefore exercise our authority to modify the abstract of judgment to reflect the oral pronouncement by striking the $10,000 restitution fine pursuant to section 1202.4(b).

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1466, 1473 [exercising authority to modify judgment, impose sentence, and stay execution of sentence]

People v. Felix (2009) 172 Cal.App.4th 1618, 1631 [correcting abstract to match oral pronouncement]