Tag Archives: Restitution fine

Discretion, Duty of the court, Fines and fees, Sentencing

Case 000849

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing held under section 1172.75, the resentencing court erred by (1) imposing consecutive sentences on the defendant’s attempted murder and felon in possession of a firearm counts because the court was unaware of its discretion to impose concurrent terms, (2) not recalculating custody credits, and (3) reimposing a restitution fine under section 1202.4.

First Holding:

When the Three Strikes law applies, sentences for current qualifying offenses must be ordered to run consecutively to each other if the current offenses occur on separate occasions and do not arise from the same set of operative facts.

Conversely, where a sentencing court determines that two or more current felony convictions were either committed on the same occasion or arise from the same set of operative facts, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.

Authority:

PEN 667(c)(6)

People v. Henderson (2022) 14 Cal.5th 34, 45

People v. Lawrence (2000) 24 Cal.4th 219, 233

Second Holding:

When the record shows the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

Authority:

People v. Brown (2007) 147 Cal.App.4th 1213, 1228

Third Holding:

The attempted murder and felon in possession of a firearm counts were based on the defendant’s possession and use of the same firearm. There is no suggestion that the defendant possessed more than one gun when he committed the offenses.

Because the attempted murder and felon in possession of a firearm counts arose from the same set of operative facts, the resentencing court had discretion to impose concurrent sentences. Remand for resentencing is appropriate as the court was unaware of its discretion, and there is no indication that had it been aware of its discretion, it would nevertheless have imposed consecutive terms.

Authority:

People v. Garcia (2008) 167 Cal.App.4th 1550, 1567

People v. Deloza (1998) 18 Cal.4th 585, 600

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

When a felony sentence is modified during the term of imprisonment, the trial court must recalculate and credit the actual time defendant had served on his sentence prior to the modification. Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts. On remand, the resentencing court must recalculate the defendant’s custody credits for actual time served.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Fifth Holding:

The restitution fine imposed under section 1202.4 must be vacated under section 1465.9. Effective January 1, 2025, section 1465.9 was amended to add subdivision (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.

Because the defendant’s restitution fine was imposed more than 10 years ago, any balance is unenforceable and uncollectable by operation of law. The fine must be vacated

Authority:

PEN 1465.9

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000847

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court failed to award credit for the time the defendant served in custody. The court imposed a restitution fine that should have been vacated. The court imposed repealed fees. Remanded for the trial court to correct these errors, along with errors in the abstract of judgment.

First Holding:

Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.

A court resentencing a defendant must credit the defendant with all actual days he had spent in custody, whether in jail or prison, up to that time. The updated total of credit must then be added to the abstract of judgment.

Here, the most recently amended abstract reflects no credit for time served. On remand, the trial court will need to recalculate the number of days the defendant spent in custody from the initial sentencing through the date of the resentencing and prepare an updated abstract of judgment.

The abstract of judgment must be corrected to reflect the correct date that the new sentence was pronounced at the resentencing hearing, not the date of the original sentencing.

Authority:

PEN 2900.1

PEN 2900.5

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

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125, 1129-1130

Second Holding:

The restitution fine imposed under section 1202.4 at the original sentencing in 2011 must be vacated. 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.

Authority:

PEN 1465.9(d)

Third Holding:

The trial court was not authorized to impose fees under former Government Code section 29550.2. The Legislature repealed that statute effective July 1, 2021. (Stats. 2020, ch. 92, sec. 25.) Even if Government Code section 29550.2 were still in effect, the Legislature has declared such fees unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. Accordingly, we vacate the main jail booking fee and the main jail classification fee imposed by the trial court.

Authority:

GOV 6111(a)

Fourth Holding:

We note a clerical error in the most recently amended abstract of judgment. The abstract includes a solitary numeral “1” in section 3 of the enhancements section. The numeral is listed without an identifying label and is not included in the aggregate sentence. Presumably, this numeral is left over from the prior prison term enhancement that was stricken by the trial court at resentencing and should be deleted. We will direct the trial court to correct the amended abstract of judgment by deleting this errant numeral.

(Gary note: The court did not cite any authority for its order directing correction of the abstract of judgment, but the law is clear that it has that authority. I have listed below some cases the court could have cited as authority.)

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

Duty of the court, Fines and fees, Sentencing

Case 000835

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.75, the court erroneously imposed an enhancement that had been vacated as a result of an earlier appeal. The court also erred by not recalculating the credit for time served through the date of the resentencing. Further, the restitution fine must be vacated, as it was imposed at least 10 years ago.

First Holding:

When a prison term already in progress is modified 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. The California Department of Corrections and Rehabilitation is responsible for calculating any postsentence custody credits.

Authority:

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

People v. Dean (2024) 99 Cal.App.5th 391, 397

Second Holding:

After 10 years have elapsed from the imposition of a restitution fine imposed under section 1202.4, any remaining balance is unenforceable and uncollectible. Any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

Third Holding:

The trial court struck the six one-year prior prison terms but declined to otherwise modify the sentence. However, although this court had previously vacated the three-year term imposed on count 1 pursuant to section 12022.7,(a), in resentencing the defendant, the trial court again imposed the enhancement and three-year term. The parties agree this was error, as do we. The great bodily injury enhancement imposed as to count 1 must be stricken and the three-year term vacated.

(Gary note: The court cited no authority for its order striking the enhancement that had been stricken in the earlier appeal. The relief seems obvious enough. Under section 1260, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

(If that doesn’t precisely address the issue, one could also look at Dutra, although it, too, is not exactly on point. It dealt with the trial court’s act of not complying with the instructions in the remittitur because of a change in the law, but the change did not permit it to act outside the direction of the remittitur. Again, not exactly what happened here.

(Or one could argue that imposing the enhancement resulted in an unauthorized sentence (again), which can be corrected whenever the matter is before the court. See, for example, Sanders.

(It just seems so intuitive that the trial court, on resentencing, could not reimpose an enhancement that was stricken as unlawful in the earlier appeal. I’m not surprised the appellate court did not see a need to cite authority, particularly where the parties both agreed on the error and remedy. The authorities I have listed below were not cited by the court, and the two cases are fairly distinguishable from this situation, but might prove interesting reading nonetheless.)

Authority:

PEN 1260

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13

Abstracts and Minutes, Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000831

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court should have recalculated the defendant’s custody credits. Further, the abstract of judgment erroneously indicates that the court reimposed the restitution fine and suspended it. In fact, the court did not reimpose the fine, and thus this is clerical error that must be corrected.

First Holding:

The abstract of judgment erroneously includes a restitution fine. 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.

In fact, the trial court did not reimpose the restitution fine, so this appears to have been a clerical error. Therefore, we remand so the court may correct the abstract of judgment.

(Gary note: The court did not cite any authority for its order directing correction, but there are many cases the court could have relied on. I have set forth several below the Penal Code section in the Authority section below.)

Authority:

PEN 1465.9(d)

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

Second Holding:

There was an error in calculating the defendant’s days of custody credit. Remanded for the court to calculate the correct number of days.

(Gary note: Again, the court cited no authority for this obvious solution, so I have set forth a few below.)

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 33–34

People v. Dean (2024) 99 Cal.App.5th 391, 396–397

Abstracts and Minutes, Fines and fees, Sentencing

Case 000797

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment mistakenly reflects that the trial court imposed financial obligations for court operations and conviction assessments and the abstract erroneously indicates the restitution fines were not stayed. It must be corrected.

First Holding:

The trial court stated a compelling reason for staying an otherwise mandatory restitution fine: any income the defendant earned would be better directed toward paying the direct restitution to the victim that the court did order.

Authority:

People v. Mercer (1999) 70 Cal.App.4th 463, 467 [we draw all inferences in favor of the judgment]

Second Holding:

The abstract of judgment shall be corrected to reflect that the trial court stayed the section 1202.4, subdivision (b), restitution fines, and the financial obligations from the court operations and conviction assessments shall be struck. (Gary note: the court cited no authority for ordering the correction of the abstract of judgment, but there are many cases it could have relied on. I have set forth a few below for your convenience.)

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