Fun With Restitution Fines

By Bill Robinson

1. Son of Walker After Dickerson: Keeping the Balls in the Air.

First, there was Walker. In People v. Walker (1991) 54 Cal.3d 1013, the Supreme Court held that the court cannot impose a punishment which departs significantly from the plea bargain. When the court failed to advise the defendant that he could withdraw his plea if the court departed from the plea bargain (Pen. Code, § 1192.5), the issue could be raised for the first time on appeal.

In Walker, the defendant pled guilty pursuant to a plea bargain and was not advised of a restitution fine. The Supreme Court held it violated the plea bargain to impose a substantial restitution fine. Since the trial court had no discretion but to impose the statutory minimum restitution fine (in other words, the court lacked the power to agree to no restitution fine), the remedy was to reduce Walker's restitution fine to the statutory minimum. And Walker was good because it led to a small but meaningful benefit to the client.

Then there was Son-of-Walker. In this situation, the defendant enters a plea bargain. He is advised that a restitution fine is a possible penal consequence, but a restitution fine is not an agreed upon term of the plea bargain. In numerous unpublished decisions, the Sixth District Court of Appeal has held that in this situation the restitution fine must be reduced to the statutory minimum because it was not part of the plea bargain. A Son-of-Walker claim requires: (1) a plea bargain, (2) no section 1192.5 advisement by the court, (3) an advisement that the potential consequences of pleading guilty is a restitution fine, but (4) the fine was not part of the plea bargain, and (5) a substantial restitution fine was imposed. Son of Walker cases led us to revise our Walker briefing, arguing that the advisement alone was inadequate to avoid Walker error, since that case had cautioned courts that restitution fines “should generally be considered in plea negotiations . . .” (Walker, at p. 1024), and contended that fines in this situation violated the plea bargain and should be reduced to the statutory minimum. In a series of unpublished opinions, we won these Son-of-Walker cases. This went on for a happy couple of years. And Son-of-Walker was also good because of the substantial benefit to the client from a finding of Walker error.

What was next? Granddaughter of Walker? This did come up, actually – an 1192.5 advisement is given, but it refers only to the prison term agreed to, and not the rest of the sentence; does this preclude raising un-objected-to Walker error on appeal? (Sample briefing on this point is available)

Before we could learn the answer to this question, things took a different turn. People v. Dickerson (2004) 122 Cal.App.4th 1374, a published Sixth District opinion authored by pro tem Justice Ryan Walsh, rejected Son-of-Walker. The court held that where an advisement was given as to a restitution fine, it should be implied that the plea bargain allows the trial judge to impose a discretionary restitution fine, with the court rejecting the notion that the absence of a substantial restitution fine was an implied term of the plea bargain. The reasoning in Dickerson relies very little on the advisement as to the fine, which is the only distinction between the facts of Dickerson and the facts of Walker. In our view, the Dickerson court goes over the same factors cited by the court in Walker to support its conclusion but reaches a contrary result. (Sample briefing is available/linked pointing out the problems in the Dickerson opinion.) Dickerson was not good, because it seemed to signal the demise of Son-of-Walker. In a separate case, Justice Mijara dissented, stating that relief was compelled under Walker.

But, to paraphrase Mark Twain, the rumors of the death of Son-of-Walker were premature. In People v. Crandell (S134883), the Supreme Court granted review on August 24, 2005 on the question whether the imposition of a restitution fine under Penal Code section 1202., subdivision (b), violate a defendant's plea agreement if the fine was not an express term of the agreement.

It is important to continue to argue the Son-of-Walker issue because the holding in Dickerson is now subject to review.

2. Other Restitution Fine Issues

In addition to Walker and its progeny, there are several other arguable issues involving restitution fines which can be raised in guilty plea and probation violation cases. Here is an outline of some of the claims that can be raised in the appropriate situation:

a. Chambers-Downey error. The easiest issue comes up when probation is revoked and a prison sentence imposed. When a defendant is put on probation, the trial court typically imposes a $200 restitution fine as part of the probation order. When probation is revoked, the court will sometimes impose a new restitution fine, commensurate with the formula of section 1202.4, subdivision (b)(2) – e.g., $800 for a four year sentence. This is clear error because the original fines “remained in force despite the revocation of probation. . . .” (People v. Chambers (1998) 65 Cal.App.4th 819, 820-821; see also People v. Downey (2000) 82 Cal.App.4th 899, 921.) Thus, the fines imposed when the prison sentence was pronounced must be stricken. (Ibid.)

b. Probation Report Switcheroo IAC. Probation reports typically recommend a particular restitution fine, using the probation officer’s recommended sentence and the statutory formula. Sometimes, when a judge decides to impose a lesser sentence than the one recommended by the trial judge, he or she will nonetheless impose the restitution fine recommended by the probation officer, occasionally stating (incorrectly) that the fine is imposed pursuant to the formula. Since the fine is greater than what the formula would provide, trial counsel should object and request that the court recalculate the fine using the formula. Of course, a failure to object waives the error in setting the discretionary amount of the fine. (People v. Scott (1994) 9 Cal.4th 331.) However, we have had some luck in unpublished opinions attacking the fine by arguing that counsel was ineffective in not objecting to a restitution fine which exceeded the guideline amount because of a sentence reduction by the trial judge. The issue appears to succeed best when the judge (and not just the probation officer), states the fine is imposed under the statutory formula. Sample briefing is available on this issue.

c. Double Restitution Fines in Joined Cases. Courts will frequently impose separate restitution fines in separate superior court cases which are jointly sentenced. There is case law indicating that this is improper, and that only a single restitution fine is proper when cases are joined for sentencing. (See People v. McNeely (1994) 28 Cal.App.4th 739; People v. Ferris (2000) 82 Cal.App.4th 1272.) This argument will always win when the fines imposed total more than the statutory maximum of $10,000, as was the case in McNeely and Ferris. However, the argument can be made even if the fines are less than $10,000, and has met with mixed results in this situation. Again, sample briefing is available.

d. Ex Post Facto Fines. In cases involving crimes committed some time ago – typically, murders, or sex crime cases involving limitations extensions – courts will frequently impose fines which were not authorized by statute when the crime was committed. This occurs most commonly with the parole revocation fine imposed pursuant to section 1202.45 – which requires that a fine in the same amount as the restitution fine be imposed and then stayed. If the crime in question was committed before August 3, 1995, the fine must be stricken as violative of the Ex Post Facto Clause, since it imposes punishment greater than what could have been imposed when the act was committed. (People v. Callejas (2000) 85 Cal. App. 4th 667.)

N.B.: This principle can be applied to other penal provisions, most notably laws such as Penal Code section 2933.1 which significantly reduce entitlement to jail and prison credits. (See Weaver v. Graham (1981) 450 U.S. 24, Lynce v. Mathis (1997) 519 U.S. 433, and In re Lomax (1998) 66 Cal.App.4th 639.) Thus, if your client’s “current crime” violent felony was committed before September 21, 1994, the effective date of section 2933.1, a sentence which imposes credit limits under section 2933.1 violates the ex post facto prohibition.

Also, check to see if your client’s current crime was a violent felony when it was committed. For example, robbery was a “serious,” but not “violent” felony until Proposition 21 was passed on March 6, 2000. Thus if your client’s current robbery occurred prior to that date, the limits of section 2933.1 can’t be applied to him without running afoul of the Ex Post Facto clause.

Sample brief in

November 2, 2004, updated September 2, 2005.