Tag Archives: Restitution fine

Fines and fees, Juveniles, Retroactivity, Sentencing

Case 000755

Posted on by Gary McCurdy

Error and/or relief

Because of a change in the law while the minor’s case has been pending, the restitution fine ordered by the court must be stricken.

First Holding:

Here, the juvenile court imposed a restitution fine as a condition of probation. At the time of the minor’s disposition, the restitution fine was mandatory. Effective January 1, 2025, however, the Legislature passed AB 1186 which amended Welfare and Instituitons Code section 730.6 to prohibit a court from imposing a separate and additional restitution fine against a minor found to be a person described in Section 602.

Authority:

WIC 730.6(a)(2)

Second Holding:

An adult or juvenile offender is generally entitled to benefit from amendments that become effective while their case is on appeal and not yet final.

Authority:

People v. Vieira (2005) 35 Cal.4th 264, 305 [applying a revised version of the statute in setting a restitution fine]

In re N.D. (2008) 167 Cal.App.4th 885, 891 [rule of retroactivity applies to juvenile delinquency judgments]

In re Estrada (1965) 63 Cal.2d 740, 748 [Where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.

Third Holding:

Because imposing a restitution fine constitutes “punishment” and the minor’s case was not yet final when section 730.6 became effective, we conclude section 730.6 operates retroactively and precludes imposition of a restitution fine. Therefore, the restitution fine should be stricken.

Authority:

People v. Allen (2019) 41 Cal.App.5th 312, 321

Abstracts and Minutes, Fines and fees

Case 000751

Posted on by Gary McCurdy

Error and/or relief

The trial court having resentenced the defendant under section 1172.75, the matter is remanded for the trial court to determine the credit for time served and for correction of the abstract of judgment.

First Holding:

When a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody up to that time, including his time in custody after the original sentencing. Thus, the matter should be remanded for defendant’s custody credits to be recalculated, and the abstract of judgment should be amended accordingly.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]

Second Holding:

The section 1202.4(b) restitution fine in the amount of $800 listed on the abstract of judgment filed after the resentencing hearing should be stricken, since the court granted his request to strike all fees and fines, except for direct victim restitution.

(Gary note: The court cited no authority for its order to correct the abstract of judgment. I have listed some of the cases the court could have cited.)

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 000737

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the $200 restitution fine imposed by the trial court on resentencing must be vacated, as section 1465.9(d) requires such a fine that is more than 10 years old to be vacated.

First Holding:

Section 1202.4 states a 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.

Authority:

PEN 1202.4

Second Holding:

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. This section not only authorizes, but mandates, vacation of a portion of a judgment for the purpose of striking the now-unauthorized assessments.

Authority:

PEN 1465.9

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

Fines and fees, Sentencing

Case 000728

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court should have vacated the restitution fine that was imposed more than 10 years earlier. We remand the case for the court to determine the defendant’s ability to pay the parole revocation restitution fine, which is not vacated by section 1465.9(d).

First Holding:

Effective January 1, 2025, AB 1186 added subdivision (d) to section 1465.9, 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. It does not, however, apply to the parole revocation restitution fine.

Authority:

PEN 1465.9(d)

Second Holding:

In Kopp, our Supreme Court clarified that, although fines may properly be imposed as punishment for crime, the excessive fines analysis under the state and federal Constitutions is the proper vehicle to challenge punitive fines, such as parole revocation fines. In addition, a trial court must conduct an ability to pay hearing before imposing a restitution fine (or corresponding parole revocation fine) that exceeds the statutory minimum of $300.

Authority:

People v. Kopp (2025) 19 Cal.5th 1 23, 17, 30

Abstracts and Minutes, Fines and fees, Sentencing

Case 000719

Posted on by Gary McCurdy

Error and/or relief

Although the trial court did not orally impose any fines or fees at sentencing, the minute order and abstract of judgment include a $300 restitution fine, a $300 parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment. The abstract of judgment and the minute order must be corrected to reflect the oral pronouncement of judgment.

First Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes and abstract of judgment cannot add anything substantive to the oral pronouncement. The oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. If the clerk includes fines or fees in the minute order or abstract of judgment that were not orally imposed, those fines and/or fees must be stricken from the minute order and abstract.

Authority:

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

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389, 385-390

People v. Rowland (1988) 206 Cal.App.3d 119, 124

Second Holding:

A restitution fine under section 1202.4 need not be imposed if the trial court finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. Thus, a restitution fine under section 1202.4 is a discretionary sentencing choice. A corresponding parole revocation fine is mandatory only if a restitution fine is imposed. Although the People argue the judgment should be modified to include the omitted fines, they did not object to the omission at sentencing.

Authority:

PEN 1202.4(b)

People v. Tillman (2000) 22 Cal.4th 300, 302, 303

People v. Smith (2001) 24 Cal.4th 849, 853

Third Holding:

The court operations assessment and criminal conviction assessment are both mandatory, and we may address such an omission because the failure to impose them results in an unlawful sentence. The judgment is modified to impose a $40 court operations assessment and a $30 criminal conviction assessment. The trial court is directed to correct the sentencing minute order and abstract of judgment to omit the $300 restitution fine and the $300 parole revocation fine, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

Authority:

PEN 1465.8

GOV 70373

People v. Smith (2001) 24 Cal.4th 849, 853

Fines and fees, Sentencing

Case 000718

Posted on by Gary McCurdy

Error and/or relief

Where the defendant has been sentenced to life without the possibility of parole (LWOP), the court cannot impose a parole revocation restitution fine.

Holding:

In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount. Where a defendant has been sentenced to LWOP or death, the section does not apply. We order the trial court to modify the judgment by striking the parole revocation fine.

Authority:

PEN 1202.45

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 [When there is no parole eligibility, the fine is clearly not applicable.]

People v. Carr (2010) 190 Cal.App.4th 475, 482, fn. 6

Fines and fees, Sentencing

Case 000716

Posted on by Gary McCurdy

Error and/or relief

Where the defendant has been sentenced to life without the possibility of parole (LWOP), the court cannot impose a parole revocation restitution fine.

Holding:

In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount. Where a defendant has been sentenced to LWOP or death, the section does not apply.

Authority:

PEN 1202.45

People v. Alvarez (2025) 18 Cal.5th 387, 484–486 [striking parole revocation fine where defendant was sentenced to death and indeterminate term]

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182 [parole revocation fine unwarranted where defendant was sentenced to LWOP and indeterminate term]

Amelioration, Fines and fees, Retroactivity, Sentencing, Standard of review

Case 000706

Posted on by Gary McCurdy

Error and/or relief

At a resentencing hearing under Penal Code section 1172.1(a)(1) for the defendant, the trial court reduced defendant’s prison term by striking certain enhancements and re-imposing a restitution fine under section 1202.4(b). In considering the gang enhancements that were imposed in 2006, the court should have examined them to determine whether the elements met the current requirements under the amendments by AB 333 to section 186.22. Also, the restitution fine is more than 10 years old and must be vacated.

First Holding:

When defendant admitted to the enhancement in 2006, former section 186.22(b)(1) provided a sentencing enhancement for a person who committed a felony for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. As the defendant was convicted of attempted murder, carrying a sentence of a life term, the enhancement imposed a minimum of 15 years before release on parole. Without the enhancement, the defendant’s minimum eligibility would have been after seven years.

Authority:

FORMER PEN 186.22

Second Holding:

In 2021, the Legislature passed AB 333, effective January 1, 2022, which added new elements to gang enhancements in section 186.22. It narrowed the definition of criminal street gang and pattern of criminal activity, as well as what it means for an offense to have commonly benefited a street gang.

Under the new legislation, imposition of a gang enhancement requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

These changes benefit defendants by raising the threshold for a true finding on a gang enhancement.

Authority:

CURRENT PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1207

People v. Perez (2022) 78 Cal.App.5th 192, 206

Third Holding:

The defendant and the People agree that defendant’s 2006 admission to the gang enhancement on count 1 does not satisfy all the elements for a gang enhancement under the new legislation. Under our independent standard of review, we find no reason to disagree.

Authority:

People v. Rosbury (1997) 15 Cal.4th 206, 209 [de novo review applies when legality of sentence is purely a legal question]

Fourth Holding:

Because the defendant’s admission in 2006 would not satisfy the elements for a gang enhancement under current law, his past admission cannot now support beyond a reasonable doubt the additional punishment allowed by the enhancement.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082 [elements of an alleged sentence enhancement must be proven beyond a reasonable doubt]

People v. Rodriguez (2024) 103 Cal.App.5th 451, 458 [guilty plea admits of guilt beyond a reasonable doubt to every element of crime charged]

Fifth Holding:

AB 333’s substantive changes apply retroactively to all cases not yet final. When a sentence is recalled for resentencing, the matter is non-final and subject to application of ameliorative amendments, like AB 333. The record plainly supports that the defendant’s case was not final because his sentence was recalled under section 1172.1. He was therefore entitled to the benefits of AB 333. Accordingly, we reverse the true findings on the gang enhancement.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

People v. Lopez (2025) 17 Cal.5th 388, 396, 398–399 [recognizing a judgment becomes nonfinal when sentence is vacated and new sentence is imposed]

People v. Lopez (2020) 56 Cal.App.5th 835, 845–846 [recalled sentence not final]

Sixth Holding:

The restitution fine imposed in 2006 must be vacated, as it was imposed more than 10 years ago.

Authority:

PEN 1465.9(d)

Fines and fees, Sentencing

Case 000685

Posted on by Gary McCurdy

Error and/or relief

When resentencing defendant under section 1172.75, the court reimposed the $400 restitution fine and a $400 suspended parole revocation fine originally imposed in 1999. The restitution fine must be vacated.

Holding:

Since the court originally imposed the restitution fine more than 10 years ago, section 1465.9(d) makes it now uncollectible and legally unenforceable.

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart 10-year clock], review granted Mar. 11, 2026, S29503 on a different issue

Appellate Principles, Fines and fees, Sentencing

Case 000678

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to life without the possibility of parole (LWOP). It was therefore improper to impose a parole revocation fine, which applies only to non-LWOP sentences.

First Holding:

The trial court erred in imposing and staying a parole revocation fine under section 1202.45(a), because the defendant’s sentence did not include a period of parole.

Authority:

People v. Battle (2011) 198 Cal.App.4th 50, 63 [parole revocation fine improperly imposed upon defendant sentenced to indeterminate term on one count and LWOP on another]

Second Holding:

The defendant also contends for the first time on appeal that the court violated his constitutional rights, by ordering him to pay a $10,000 restitution fine under Penal Code section 1202.4(b), a court operations surcharge under Government Code section 69926(a), and court facilities and court operations assessments under Government Code section 70373 and Penal Code 1465.8(a)(1)), without first determining his ability to pay. Because these contentions were not raised below, they are forfeited.

Authority:

People v. Trujillo (2015) 60 Cal.4th 850, 856–859

People v. McCullough (2013) 56 Cal.4th 589, 597–598

People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155

People v. Dueñas (2019) 30 Cal.App.5th 1157, overruled in part by People v. Kopp (2025) 19 Cal.5th 1, 23

Fines and fees, Sentencing

Case 000667

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, it was error to reimpose the restitution fine (as it was more than 10 years old) and to impose various fees that were not enacted until after the defendant was originally sentenced.

First Holding:

A restitution fine cannot be re-imposed more than 10 years after initially imposed.

Authority:

PEN 1465.9(d) [setting a 10-year limit as to the date of imposition of a restitution fine pursuant to section 1202.4]

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038, on another issue

Second Holding:

The assessment and fee did not become law until after defendant’s 1996 sentencing, and thus cannot be imposed.

Authority:

People v. Alford (2007) 42 Cal.4th 749, 754 [applying section 1465.8 only to convictions imposed after its operative date of August 17, 2003]

People v. Davis (2010) 185 Cal.App.4th 998, 1000-1001 [applying Government Code section 70373 only to convictions after its effective date of January 1, 2009]

Amelioration, Fines and fees, Sentencing

Case 000656

Posted on by Gary McCurdy

Error and/or relief

In this appeal following resentencing under section 1172.75, the restitution fine, now older than 10 years, must be vacated.

Holding:

Under section 1465.9(d), the restitution fine must be vacated, as it was imposed more than 10 years ago.

Authority:

PEN 1465.9(d)