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Name: People v. Evers (2023) 96 Cal.App.5th 212
Case #: A164989
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 10/06/2023

Defendant’s ability-to-pay challenge to his restitution fine (Pen. Code, § 1202.4(b)) was forfeited as it was not raised by trial counsel, and forfeiture was not negated by the Penal Code section 1237.2 motions his appellate counsel filed in the trial court. At sentencing after defendant’s felony plea, the court imposed a $10,000 restitution fine and imposed but suspended a $10,000 parole restitution fine. The court declined trial counsel’s request to reduce the restitution fines to $7,500 based on the statutory formula in section 1202.4(b)(2). Defendant appealed. Held: Affirmed. Defendant’s sentencing occurred two years after People v. Dueñas (2019) 30 Cal.App.5th 1157 was decided and trial counsel did not object based on ability to pay or request an ability to pay hearing. As such, defendant forfeited his constitutional challenges to the restitution fines. Defendant argued that the two informal motions his appellate counsel submitted directly to the trial court pursuant to section 1237.2 negated any forfeiture because they gave the trial court an opportunity to correct the alleged error. Section 1237.2 requires a “motion for correction” only when “the error is not discovered until after sentencing.” (§ 1237.2.) This was not the situation here as there was no evidence trial counsel was unaware of Duenas at sentencing. The court found “no basis to conclude that [section 1237.2] was intended to create a mechanism to avoid forfeiture in this context.” The lack of objection forfeited this claim on appeal. [Editor’s Note: The Court of Appeal also reversed the 15 percent administrative fee attached to defendant’s victim restitution orders, finding that the applicable statute (former Penal Code section 1203.1(l)) was repealed by Assembly Bill No. 177.]