Tag Archives: Restitution fine

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

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 000538

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected because it contains several errors, including a representation that the court imposed a $300 restitution, contrary to the actual order.

First Holding:

The abstract of judgment reflects a $300 restitution fine under section 1202.4(b) and a $300 parole revocation fine under section 1202.45 that were not orally imposed during the sentencing hearing. Under section 1202.4(b), 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.

Under section 1202.45, if a defendant’s sentence includes a period of parole or the defendant is subject to post-release community supervision or mandatory supervision, the court shall impose an additional fine in the same amount as the section 1202.4 fine.

The People did not object to the court’s failure to orally impose these fines. Because such fines are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we direct those fines to be stricken.

Authority:

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

Second Holding:

The abstract of judgment reflects that the restitution fine was imposed, but it was not. The oral pronouncement controls, so we amend the abstract of judgment accordingly.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185, 188

Appellate Principles, Effective assistance of counsel, Fifth Amendment, Fines and fees, Sentencing

Case 000524

Posted on by Gary McCurdy

Error and/or relief

On resentencing, it was error to increase the originally-imposed $300 restitution fine to $10,000.00. It was also error to fail to recalculate the defendant’s credit for time served.

First Holding:

Although defendant arguably has forfeited the claim of error because he did not object to the sentence below, we will reach the issue because he also contends his attorney was ineffective.

Authority:

People v. Daniels (2012) 208 Cal.App.4th 29, 31

Second Holding:

When a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing. Statutorily mandated restitution fines constitute punishment and there is no principled basis for excluding them from the rationale of Henderson. The restitution fine imposed pursuant to section 1202.4(b) cannot exceed the $300 originally imposed. Therefore, we remand the matter and direct the trial court to reduce the restitution fine to $300, as originally assessed.

Authority:

 

People v. Henderson (1963) 60 Cal.2d 482

People v. Jones (1994) 24 Cal.App.4th 1780, 1783, 1785

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Daniels (2012) 208 Cal.App.4th 29, 31-32

People v. Thompson (1998) 61 Cal.App.4th 1269, 1276 [court directed trial court to reduce increased section 1202.4 fine to amount originally assessed]

Third Holding:

A restitution fine under section 1202.4 constitutes punishment. It is required in every case where a person is convicted of a crime unless the court finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For felony convictions, the required fine is not less than $300 and not more than $10,000.

Authority:

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

Fourth 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. As the trial court failed to recalculate the credit for time served, the matter must be remanded for the custody credits to be recalculated.

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]

Fines and fees, Sentencing, Standard of review, Statutory interpretation

Case: 000495

Posted on by Gary McCurdy

Error and/or relief

On recalling the sentence under section 1172.75, the court should have stricken the balance due on the restitution fine ordered more than 10 years previously.

First Holding:

Effective January 1, 2025, Assembly Bill No. 1186 amended section 1465.9 to add subdivision (d), which provides: “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 imposed a restitution fine of $10,000 when it sentenced defendant in 2001. Because more than 10 years have elapsed since the date of imposition, we order the restitution fine vacated.

Authority:

PEN 1465.9

Second Holding:

Section 1465.9 does not contemplate vacating parole revocation fines under section 1202.45. Section 1465.9(d) does not mention section 1202.45. When a statute is silent on a point, the courts resort to statutory interpretation. The proper interpretation of a statute is a question of law we review de novo. When interpreting a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. To determine the Legislature’s intent, we must look to the statute’s words and give them their usual and ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.

There is no support in the plain language of the statute for the premise that the Legislature intended section 1465.9 to provide relief from parole revocation fines. If the Legislature intended such a result, it could have so specified. It did not. As such, we conclude that a section 1202.45 parole revocation fine cannot be vacated under section 1465.9.

Authority:

Waterman Convalescent Hospital Inc. v. State Dept. of Health Services (2002) 101 Cal.App.4th 1433, 1439

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Snook (1997) 16 Cal.4th 1210, 1215

People v. Gonzalez (2008) 43 Cal.4th 1118, 1126

People v. Guzman (2005) 35 Cal.4th 577, 587 [inserting additional language into a statute violates the cardinal rule of statutory construction that courts must not add provisions to statutes]

Abstracts and Minutes, Elements of crime, Pleading, Sentencing

Case 000484

Posted on by Gary McCurdy

Error and/or relief

The court failed to award presentence conduct credits, and the abstract of judgment must be corrected (a) to show the correct section and description of the crime the jury convicted the defendant of in count 7, and (b) to delete the $10,000 restitution fine and the $10,000 parole revocation restitution fine that were waived by the court.

First Holding:

When the defendant is sentenced under section 667.61, the one strike law, the court need not grant such presentence conduct credit. But here it was error to deny the defendant credit for his presentence conduct under PC 667.61, because the People never invoked section 667.61 by alleging the strikable circumstances in the accusatory pleading. The lack of such notice precluded the trial court from sentencing the defendant subject to section 667.61. Further, such a sentencing scheme would have required the court to impose an indeterminate term, and it did not. The defendant was therefore entitled to an award of conduct credits at the rate of 15%, based on his conviction of violent felony.

Authority:

PEN 667.61

PEN 2933.1

People v. Govan (2023) 91 Cal.App.5th 1015, 1036–1037

People v. Jimenez (2019) 35 Cal.App.5th 373, 393–397

Second Holding:

Though the information charged the defendant in count 7 with section 245 as assault with a deadly weapon (defendant’s hands and feet), the jury was instructed only as to section 245 as assault by means of force likely to cause great bodily injury. The verdict form showed simply as charged under count 7 of the information. The jury could not have convicted the defendant of anything other than assault with force likely to produce great bodily injury because it was never instructed on any other crime for the purposes of count 7.

Thus, the verdict form’s reference to the erroneous charge is a clerical error rather than a reflection of the true verdict. We may correct a clerical error on a verdict form when the error does not reflect the jury’s actual verdict. The abstract lists the offense as section 245 assault with a deadly weapon. In light of the jury instruction and the verdict form, it must be corrected to reflect that the conviction was for section 245 as assault by means of force likely to cause great bodily injury.

Authority:

People v. Perez (2018) 4 Cal.5th 1055, 1065 [Hands and feet are not deadly weapons as a matter of law]

People v. Frederickson (2020) 8 Cal.5th 963, 1026 [we presume the jury understood and followed instructions]

People v. Trotter (1992) 7 Cal.App.4th 363, 370-371 [clerical correction to verdict forms after jury is discharged is not modification of verdict itself]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court has the authority to correct clerical errors at any time]

Third Holding:

The trial court ordered direct restitution to the victim but waived the separate mandatory fines and fees. The abstract of judgment erroneously lists two fines: a $10,000 restitution fine and a $10,000 parole revocation restitution fine per section 1202.45. When the oral pronouncement of judgment and the abstract of judgment are inconsistent with one another, the oral pronouncement controls over the abstract of judgment. The abstract of judgment may be corrected at any time for accuracy.

On appeal, the Attorney General argues the abstract of judgment need not be amended because the fines have a mandatory minimum that can only be waived by a finding of compelling and extraordinary reasons, and the court’s reasoning here was insufficient. We need not reach this question. Any such argument was waived when the prosecutor did not object in the trial court.

Authority:

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

People v. Zachery (2007) 147 Cal.App.4th 380, 385

People v. Mitchell (2001) 26 Cal.4th 181, 185–188

Appellate Principles, Fines and fees, Sentencing

Case 000467

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed a restitution fine of $400, believing that $400 was the minimum. The appellate court revised the judgment to impose the intended minimum restitution fine of $300.

First Holding:

The minimum restitution fine for a defendant convicted of a felony is $300.

Authority:

PEN 1202.4(b)(1)

Second Holding:

We may review an asserted legal error in sentencing for the first time on appeal even if the defendant did not object in the trial court. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 594

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441

Fines and fees, Sentencing

Case 000456

Posted on by Gary McCurdy

Error and/or relief

After ten years, the unpaid balance of any restitution fines are no longer collectible and the restitution order must be vacated.

First Holding:

Section 1202.4(b) mandates 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. Section 1465.9 was amended effective January 1, 2025, to add subdivision (d) which requires that, on 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 1202.4(b)

PEN 1465.9

Second Holding:

The trial court’s reimposition of the fine at resentencing in 2025 did not restart the 10-year clock.

Authority:

People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted Mar. 11, 2026, S295038 on a different issue

Juveniles, Sentencing

Case 000449

Posted on by Gary McCurdy

Error and/or relief

The juvenile court lacked authority to commit the minor to the Secure Youth Treatment Facility, improperly imposed a restitution fine, and miscalculated the maximum confinement term. We reverse the order imposing the restitution fine, and remand for a new disposition hearing. Although the oral pronouncement did not address restitution, the minute order reflects a $240 restitution fine.

First Holding:

A minor can be committed to a Secure Youth Treatment Facility (SYTF) only if (1) The juvenile is adjudicated and found to be a ward of the court based on an offense listed in Welfare and Institutions Code section 707(b) and (2) The adjudication described in criteria (1) is the most recent offense for which the juvenile has been adjudicated. The phrase “most recent” describes when the minor committed the offense, not when the petition is adjudicated.

Appellant’s most recent offenses, criminal threats and burglary, are not among the offenses described in section 707(b). Accordingly, because these offenses were committed after appellant committed an assault with a firearm, an offense that is included in section 707(b), the juvenile court was not authorized to commit appellant to a SYTF. Remand is, therefore, necessary to allow the court to conduct a new disposition hearing

Authority:

WIC 875

In re B.J. (2020) 49 Cal.App.5th 646, 648

Second Holding:

The juvenile court imposed a $240 restitution fine under former section 730.6. While this appeal was pending, the Legislature amended section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now provides that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in Section 602.

Authority:

WIC 730.6

In re Estrada (1965) 63 Cal.2d 740, 745-746 [ameliorative legislation changes applicable to cases pending on appeal]

Third Holding:

A court shall not commit a juvenile to any juvenile facility for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense. The aggregate term for an adult convicted of two or more felonies and receiving consecutive terms is the principal (i.e., the greatest term imposed) term plus the subordinate (i.e., other felony conviction with a consecutive term) term. Here, the middle term for both counts is three years. The subordinate term is one-third of the middle term. Therefore, the maximum that term of confinement is four years, or 1,460 days, not the 2,540 days set by the court.

Authority:

WIC 730(a)(2)

PEN 1170.1(a)

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000437

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly indicates a restitution fine of $3,400 to be paid, rather than the $2,400 imposed by the trial court. It must be corrected.

Holding:

[GARY NOTE: The court cited no authority for its order directing the trial court to correct the abstract of judgment–likely because the legal principle is well-established and seems obvious–but there is plenty of authority, which I cite below.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

People v. Jones (2012) 54 Cal.4th 1, 89

People v. Baker (2021) 10 Cal.5th 1044, 1109 [court has inherent power to correct clerical errors in abstract of judgment]

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000436

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment is incorrect in that it indicates that the trial court imposed a restitution fund fine of $330 pursuant to section 1202.4 but at sentencing the trial court stated that the amount of that fine was $300. It must be corrected.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385