[1] A defendant who fails to object that the evidence is insufficient to support a finding of his ability to pay a booking fee when the court imposes it forfeits the right to challenge the fee on appeal. (People v. McCullough (2013) 56 Cal.4th 589.)
[2] Prior to January 1, 2012, this penalty was subject to a reduction differing by county. (See People v. McCoy (2007) 156 Cal.App.4th 1246.) Imposition of the fee for offenses committed before the effective date violates ex post facto provisions of the state and federal constitutions. (People v. High (2004) 119 Cal.App.4th 1192.)
[3] This assessment is in addition to the assessment under Penal Code section 1464, and may not be included in the base fine to calculate the assessment under that statute. Imposition of the assessment for crimes committed before the statute’s enactment does not violate ex post facto principles. (People v. Castillo (2010) 182 Cal.App.4th 1410.) But the assessment applies only to cases cases in which the conviction, either by plea or jury verdict, occurred on or after its effective date. (People v. Davis (2010) 185 Cal.App.4th 998.)
[4] By statute, Government Code section 76000 does not apply to Penal Code sections 1202.4, 1202.45, 1464, 1465.7, or to Government Code section 70373. Applies to Health and Safety Code section 11372.7 (People v Sierra (1995, 5th Dist.) 37 Cal.App.4th 1690), laboratory analysis fee under Health and Safety Code section 11372.5, subdivision (b), drug program fee under Health and Safety Code section 11372.7 (People v. Martinez (1998, 2nd Dist.) 65 Cal.App.4th 1511), but not to direct victim restitution (People v. Dorsey (1999, 2nd Dist.) 75 Cal.App.4th 729, and where applicable, the penalty is not waived when the prosecution fails to object to its omission (People v. Smith (2001) 24 Cal.4th 849).
[5] Imposition of the DNA penalty assessment per Government Code section 76104.6 on offenses that occurred prior to the statute’s effective date is a violation of the constitutional prohibition against ex post facto laws. (People v. Batman (2008) 159 Cal.App.4th 587.)
[6] Sexual touching is shorthand for “for the purpose of sexual arousal, sexual gratification or sexual abuse.”
[7] According to case law, prior determination of defendant’s ability to pay is not a predicate to levy of the fine upon conviction under section 290.3. The burden is on the defendant to raise the issue of ability to pay. (People v. McMahan (1992) 3 Cal.App.4th 740.)
[8] Payment cannot be made a condition of probation. (People v. Bradus (2007) 149 Cal.App.4th 636, 640-643; People v. Hart (1998) 65 Cal.App.4th 902, 906-907.)
[9] The court may calculate the fine by multiplying $200 x years in prison x number of felony counts.
Multiple amendments have affected this fee. The relevant dates are:
- Jan. 1, 1984 to Sept. 11, 1992: $100-$10,000 (felony offenses)
- Sept. 12, 1992 to Sept. 27, 1994: $200-$10,000 (felony offenses)
- Sept. 28, 1994 to Dec. 31, 2011:
- $200-$10,000 (felony offenses)
- $100-$1,000 (misdemeanor offenses)
- Jan. 1, 2012 to Dec. 31, 2012:
- $240-$10,000 (felony offenses)
- $120-$1,000 (misdemeanor offenses)
- Jan. 1, 2013 to Dec. 31, 2013:
- $280-$10,000 (felony offenses)
- $140-$1,000 (misdemeanor offenses)
- After Jan. 1, 2014:
- $300-$10,000 (felony offenses)
- $150-$1,000 (misdemeanor offenses)
For a discussion of ex post facto considerations related to the recent increase in the minimum amount of the Penal Code section 1202.4, subdivision (b), restitution fine, see ADI’s article “Increase in Minimum Restitution Fines: Watch for Ex Post Facto Violations.”
The California Supreme Court recently held that a restitution order violated the ex post facto clause of the U.S. Constitution. The trial court had applied the law of restitution in effect at the time of the defendant’s sentencing, rather than the law in effect at the time of the defendant’s crimes. The restitution order violated the statutory maximum as defined by the statutes applicable at the time of the defendant’s crimes. (People v. Souza (2012) 54 Cal.4th 90.)
[10] People v. Robertson (2009) 174 Cal.App.4th 206, 210-211. Remember to check the county where the defendant was sentenced to see if the board of supervisors has opted to impose a fee to cover the administrative costs of collecting the restitution fine. For example, the Shasta County Board of Supervisors passed a resolution in 2001 imposing a 10 percent fee. (Shasta County Bd. of Supervisors Res. No. 2001-175.)
[11] Where the trial court fails to impose the fine and the prosecution does not object, the prosecution cannot raise the issue on appeal. (People v. Tillman (2000) 22 Cal.4th 300.) Query: Does this mean the appellate court cannot impose the fine on appeal on its own motion in, for example, a Wende review? (See People v. Williams (1997) 17 Cal.4th 148, 161, fn.6, suggesting that the waiver rule binds only the parties.)
Additionally, the trial court has the authority to suspend, dismiss, or otherwise eliminate the unpaid portion of a Penal Code section 1202.4, subdivision (b) restitution fine when it grants a defendant’s motion to “expunge” the conviction (Pen. Code, § 1203.4) or when relief from payment of the restitution fine was a material term of the defendant’s plea bargain. (People v. Holman (2013) 214 Cal.App.4th 1438, 1467-1476.)
[12] Where the trial court imposes a restitution fine but omits or imposes an erroneous parole revocation fine under section 1202.45, the section 1202.45 fine can be corrected even if the prosecution fails to object because if a section 1202.4 fine is imposed, a section 1202.45 fine is required and failure to impose it results in an unauthorized sentence. (People v. Smith (2001) 24 Cal.4th 849.)
If the execution of a defendant’s prison sentence is suspended and the defendant is placed on probation, the trial court should impose the section 1202.44 probation restitution fine and not the section 1202.45 parole restitution fine. (People v. Hunt (2013) 213 Cal.App.4th 13, 16-20.) The trial court should not impose both fines. (Id. at pp. 19-20.)
[13] The usual penalties should be added to the $10 fine. (People v. Knightbent (2010) 186 Cal.App.4th 1105.) But the fine itself can be imposed just once for any single case, not per count. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.)
[14] Payment cannot be made a condition of probation. (People v. Bradus (2007) 149 Cal.App.4th 636, 640-643; People v. Hart (1998) 65 Cal.App.4th 902, 906-907.)
[15] Clerk cannot impose fee at time of filing; court determines ability to pay. (Lewis v. Clarke (2003) 108 Cal.App.4th 563.)
[16] Except does not apply to any parking offense, any restitution fine (Pen. Code, §§ 1202.4, 1202.44 and 1202.45) any county penalties authorized by Ch. 12 (starting with Gov. Code, § 76000), or the state surcharge (Pen. Code, § 1465.7). (See Pen. Code, § 1464, subd. (a)(3).) Cross reference Government Code section 76000, providing for additional $7 penalty for ever $10 penalty ordered.
[17] This surcharge became operative on 9/30/02. Imposition of the surcharge for offenses committed before this date violates ex-post facto provisions of the state and federal constitutions. (People v. High (2004) 119 Cal.App.4th 1192.)
[18] The security fee does not implicate ex post facto principles because it is not punitive in nature. (People v. Alford (2007) 42 Cal.4th 749; People v. Wallace (2004) 120 Cal.App.4th 867.) But, a security fee cannot be imposed for juvenile adjudications of wardship because they are not “criminal convictions.” (Egar v. Superior Court (2004) 120 Cal.App.4th 1306, 1308-1309.) It can be imposed even if the conviction itself is stayed under Penal Code section 654. (People v. Crittle (2007) 154 Cal.App.4th 368.) The trial court has no discretion to stay this fee under Penal Code section 654, nor generally to not impose it. (People v. Woods (2010) 191 Cal.App.4th 269.)
Multiple amendments have affected this fee. The relevant dates are:
- Aug. 17, 2003 to July 27, 2009: $20
- July 28, 2009 to Oct. 18, 2010: $30
- After Oct. 19, 2010: $40
[19] In People v. Sharret (2011) 191 Cal.App.4th 859, the Second District Court of Appeal, Div. 5, held that the 11372.5 criminal lab analysis fee constituted punishment. Accordingly, if the penalty for the offense to which it attaches is stayed pursuant to Penal Code section 654, the fee must also be stayed.
[20] Where defendants plead to charges, probation report cited this section and described expenses, and defendants did not object to restitution amount at sentencing, failure to object to the prosecution’s failure to follow procedure outlined, including jury trial, is waived. (People v. Brach (2002) 95 Cal.App.4th 571.)
[21] Penal Code section 1203.1b applies to all cases, including those in which a defendant is sentenced to state prison. (People v. Orozco (2011) 199 Cal.App.4th 189, 191-193; People v. Robinson (2002) 104 Cal.App.4th 902.)
[22] This assessment can only be levied upon a fine, penalty or forfeiture that was imposed and collected by the court. (Veh. Code, § 23649.) When the court imposes a fine against the defendant, but subsumes the fine into the defendant’s presentence credit award, the fine was never collected and the Vehicle Code section 23649 assessment should not be imposed. (People v. Benner (2010) 185 Cal.App.4th 791, 797.)
[23] For an explanation of the relationship between Government Code sections 29550, 29550.1, and 29550.2, see People v. Mason (2012) 206 Cal.App.4th 1026.
[24] The fee imposed by the county “shall not exceed one-half of the actual administrative costs,” as defined in Government Code section 29550, subd. (e), including applicable overhead costs. (Gov. Code § 29550, subd. (a)(1); see also People v. Mason (2012) 206 Cal.App.4th 1026.)
[25] When determining whether the defendant has the ability to pay the $150 drug program fee, the trial court should also consider whether the defendant has the ability to pay the applicable penalties and surcharge. (See People v. Corrales (2013) 213 Cal.App.4th 696, 700-702.)
