Tag Archives: Restitution fine

Case 000957

Error and/or relief

The abstract of judgment must be amended to show that the restitution fine was vacated and the trial court security fee was stayed. We also order corrections on the minute order from the resentencing hearing.

First Holding:

At the resentencing hearing under section 1172.75, the court suspended or stayed any unpaid amounts of the previously imposed court fees and the restitution fine. In contrast, the abstract of judgment filed after the resentencing hearing erroneously showed the trial court imposed the restitution fine of $10,000 and the court security fee of $20.

The abstract of judgment must be corrected to reflect the oral pronouncement. Further, the minute order reflects that the defendant was convicted of murder in the second degree, whereas he was actually convicted of murder in the first degree.

The minute order also must be amended.

Authority:

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

Second Holding:

Further, although the trial court intended to stay or suspend any unpaid balance of the restitution fine, that fine must be vacated because it was imposed more than 10 years earlier and the abstract of judgment must be amended to reflect that it has been vacated.

Authority:

PEN 1465.9(d)

Case 000955

Error and/or relief

On resentencing the defendant under section 1172.75, the court should have stricken the restitution fine, as it was more than 10 years old.

Holding:

Effective January 1, 2025, AB 1186 amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 not paid within 10 years must be vacated. 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)

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

Case 000931

Error and/or relief

The abstract of judgment fails to list the imposition of the restitution fine that was ordered for the misdemeanor conviction. It must be corrected.

(Gary note: Yep, not a win, but another example of errant abstracts.)

First Holding:

Where a defendant has been convicted of both a misdemeanor and a felony, it is proper for the court to impose separate restitution fines. The parole revocation restitution fine under section 1202.45 should match the portion of the restitution fine associated with the felony conviction to which a period of parole applied.

Authority:

People v. Holmes (2007) 153 Cal.App.4th 539, 546-548

Second Holding:

The abstract of judgment is missing the $150 restitution fine imposed on the misdemeanor count. We will direct the trial court to prepare an amended abstract of judgment including this additional restitution fine. Because the trial court’s minute order following sentencing already includes this amount, no amendment to that document is required.

(Gary note: The court did not cite authority for its order to correct the abstract of judgment, so I have listed some cases that the court could have drawn from.)

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

Case 000917

Error and/or relief

We are not convinced that section 1202.4 is facially unconstitutional, but we will remand this matter to the trial court to give the defendant an opportunity to bring an as-applied challenge to the restitution fine under the excessive fines clauses of the Eighth Amendment and California Constitution.

First Holding:

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, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For a felony, the minimum fine is $300 and the maximum is $10,000. Fines for a misdemeanor range from $150 to $1000.

The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b).

Authority:

PEN 1202.4(b)

Second Holding:

Due process did not require an ability to pay hearing before imposing every punitive fine. Kopp instructed instead that the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. The excessive fines analysis arises under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.

Authority:

U.S. Const. Eighth Amendment

Cal. Const., art. I, sec. 17

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

Third Holding:

Following Bajakajian, our Supreme Court in Lockyer stated that four factors are relevant to determining whether a fine is unconstitutionally excessive:

(1) the defendant’s culpability;

(2) the relationship between the harm and the penalty;

(3) the penalties imposed in similar statutes; and

(4) the defendant’s ability to pay.

Kopp observed that a fine is excessive only if it is grossly disproportional to the gravity of the offense that it punishes, a deferential standard that recognizes that the Legislature makes judgments in the first instance about the appropriate punishment for offenses and judicial determinations of the gravity of a particular criminal offense are inherently imprecise.

Kopp remanded to give the defendant the opportunity to raise such a challenge.

Authority:

United States v. Bajakajian (1998) 524 U.S. 321, 327–328

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

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

Fourth Holding:

A statute will be interpreted to avoid serious constitutional questions if such an interpretation is fairly possible. It would be remarkable and plainly unconstitutional for the Legislature to prohibit a trial court from considering a defendant’s invocation of a constitutional right.

We will therefore not construe section 1202.4 as preventing defendants from raising an excessive fines challenge to the minimum fine. Instead, we read the statute as simply establishing that as a statutory matter in the absence of an excessive fines challenge, a trial court cannot refrain from imposing the minimum $300 restitution fine based on a defendant’s inability to pay alone.

This is congruent with Kopp and excessive fines analysis jurisprudence, which considers a defendant’s ability to pay as one of four relevant factors, not as dispositive on its own.

Authority:

People v. Buza (2018) 4 Cal.5th 658, 682

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

People v. Aviles (2019) 39 Cal.App.5th 1055, 1070 [While ability to pay may be part of the proportionality analysis, it is not the only factor.]

People v. Kopp (2025) 19 Cal.5th 1, 23 [citing Aviles with approval]

Fifth Holding:

Neither the defendant nor the trial court had the benefit of Kopp when the defendant was sentenced, so she did not present her challenge to the restitution fine through the proper excessive fines analysis that Kopp makes clear is appropriate.

Accordingly, as Kopp itself did, we will remand this matter to the trial court to give the defendant the the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

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

Case 000891

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.6, the court should have stricken the restitution fine, as it was more than 10 years old.

Holding:

Effective January 1, 2025, section 1465.9 was amended to state that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. Here, the trial court imposed the $200 restitution fine more than 10 years before denying the defendant’s resentencing petition. As the People concede, that fine must therefore be vacated

Authority:

PEN 1465.9(d)