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Name: People v. Rosas
Case #: G043158
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/21/2010

When an appellate court orders a sentencing remand, the trial court may reduce fines as part of that resentencing even though the defendant did not challenge those fines on appeal. After an appeal resulted in a sentencing remand, trial counsel asked the trial court to lower the restitution fine. The court did so, even though the appellate opinion provided no directions as to the fine since there had been no appellate issues involving the amount of the fine. In this appeal, appellant argued the abstract of judgment did not reflect the change to the restitution fine. The Court of Appeal considered whether the trial court had the legal authority to decrease the restitution fine where it had not been a subject of the appeal, and where it had not been objected to at the original sentencing. [A restitution fine cannot be increased after a successful appeal because that would penalize the defendant for appealing. (See People v. Burbine (2003) 106 Cal.App.4th 1250).] The appellate court held a trial court may lower a restitution fine at resentencing because ordering the fine is a statutorily-interrelated part of the sentencing, and not a severable part of the judgment. In fact, the language of the statute authorizing the restitution fine (Pen. Code, sec. 1202.4) shows the length of the sentence has bearing on its amount. And the sentence term was in flux at the time of resentencing. Thus, the trial court had jurisdiction to lower the restitution fine at resentencing. Although each party argued the other had forfeited the right to complain about the amount of the fine, the court noted that the waiver (forfeiture) doctrine did not apply because the issue before the court involved a jurisdictional question, not one about a discretionary sentencing choice. Moreover, the common law waiver doctrine discussed in People v. Senior (1995) 33 Cal.App.4th 531, in which an appellate court will not consider a claim of error that could have been raised in the defendant’s initial appeal, does not apply because “all of the factual predicates” necessary to raise the error were not present in the first appeal.