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Name: People v. Evers (2023) 97 Cal.App.5th 551
Case #: A164989
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 11/28/2023

The forfeiture of defendant’s ability to pay challenge to his restitution fine (Pen. Code, § 1202.4(b)) was not negated by the section 1237.2 motions 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, arguing the restitution fines were unconstitutional under People v. Dueñas (2019) 30 Cal.App.5th 1157. Prior to filing the opening brief, appellate counsel sent two informal letter motions to the trial court asking the court to reduce the restitution fines to the statutory minimum of $300 and stay enforcement until there is a showing of ability to pay. Held: Reversed on other grounds. A sentencing court may not impose restitution fines without giving the defendant, on request, an opportunity to present evidence and argument regarding ability to pay. A defendant who does not object or ask for a hearing forfeits the claim of error. Here, appellate counsel submitted two informal motions to the trial court pursuant to section 1237.2, but this does not negate any forfeiture. Section 1237.2 creates an alternative pathway to correct certain sentencing errors without resorting to appeal. That section’s preservation of trial court jurisdiction “to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs” does not impose an obligation on the court to hold a new hearing to address a claim of Dueñas error. Nor does it allow the defendant to avoid forfeiture of such a claim on appeal, where no objection was raised at the sentencing hearing. [Editor’s Notes: (1) The Court of Appeal also reversed the 15 percent administrative fee attached to defendant’s victim restitution orders, finding that the applicable statute (former § 1203.1(l)) was repealed as of January 1, 2022, more than two months before defendant was sentenced. (2) The initial opinion in this case was filed on October 6, 2023. This is an opinion on rehearing after defendant’s petition for rehearing was granted.]

The full opinion is available on the court’s website here: