New Penalty Assessments: When a $100 Fine Equals $410 in Real Money

The Legislature has added a host of new penalty assessments that makes it more difficult to determine if the court imposed the correct fine. It is important to calculate the correct penalty assessment in order to determine if there is an issue on appeal or a potential adverse consequence. Penalty assessments are mandatory and can be adjusted by the appellate court if the superior court failed to impose the correct amount. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Taylor (2004) 118 Cal.App.4th 454, 457.) The penalty assessments described below are added to most fines, but they are not added to victim restitution, restitution fines, court security and facility fees, or most administrative fees such as probation fees, criminal justice administrative (booking) fees, cite and release fees, collection fees, or attorney fees. (See People v. McCoy (2007) 156 Cal.App.4th 1246, 1257; People v. Allen (2001) 88 Cal.App.4th 986, 992-993; People v. Martinez (1999) 73 Cal.App.4th 265.)

Since 1995, a state penalty assessment of $10 (Pen. Code, § 1464, subd. (a)) and a county penalty assessment of up to $7 has been added to each fine of $10 or portion thereof (Gov. Code, § 76000, subd. (a)). Thus, penalty assessments of $170 would be added to a $100 fine. Each county transferred part of the county penalty assessment to constructing new courthouses. The amount each county transfers is listed in subdivision (e) of Government Code section 76000.

Effective September 30, 2002, a state surcharge of 20 percent is added as a penalty assessment. (Pen. Code, § 1465.7.) Like most penalty assessments, the surcharge is considered to be punishment, and the ex post facto clause prohibits applying the surcharge to crimes committed before September 30, 2002. (People v. High (2004) 119 Cal.App.4th 1192, 1197.)

Starting January 1, 2003, a county surcharge of up to $5 can be assessed on every $10 of a fine or portion thereof. (Gov. Code, § 70372, subd. (a).) The exact assessment used to depend on the amount set by the county board of supervisors. (Gov. Code, § 70375.) One can refer to page iv the Uniform Bail and Penalty Schedules for the correct amount of surcharge in each county. (See Uniform Bail Schedule.) Alternatively, the amount can be calculated by taking the amount not transferred to county courthouse funding under Government Code section 76000, subdivision (e) and subtracting the amount from $5. (McCoy, supra, 156 Cal.App.4th at pp. 1252-1254.) The court in McCoy used a case from Los Angeles as an example. LA transfers $5 of the $7 under section 76000. Thus, the assessment under section 70732 is: $5 - ($7 - $5) = $3. (Id. at p. 1256.) This formula does not work if the county decides to transfer a different amount under Government Code section 70372, subdivision (b)(2); Santa Cruz was one such county. The correct assessment under section 70732 for Monterey and San Benito Counties was $3 for every $10 of a fine or portion thereof; in Santa Clara County, it was $3.50; and in Santa Cruz County it had been $5 through 2007 and then became $3. An amendment, effective January 1, 2009, made this amount $5 in all cases. Since the county surcharge is similar to the state surcharge, it is subject to the same ex post facto limitations. (High, supra, 119 Cal.App.4th at p. 1199.)

On November 3, 2004, the voters approved the practice of DNA testing all people who are arrested. To pay for the tests, a penalty assessment of $1 is added to every $10 of a fine or portion thereof. (Gov. Code, § 76104.6, subd. (a).) Imposition of the DNA penalty assessment to a crime occurring before the statute became effective violates the ex post facto clause. (People v. Batman (2008) 159 Cal.App.4th 587, 590-591.)

Not to be outdone, the Legislature approved a DOJ forensic lab fee of $1 for every fine of $10 or portion thereof, effective July 12, 2006. (Gov. Code, § 76104.7.) This increased to $3 for every fine of $10 or portion thereof, effective June 10, 2010. It increased again to $4, effective June 27, 2012.

Starting in 2007, a county may impose an "Emergency Medical Services" Fund penalty assessment of $2 for every $10 or portion thereof of a fine. (Gov. Code, § 76000.5.)

Effective August 13, 2003, a court operations assessment (formerly called a court security fee) of $20 is added. (Pen. Code, § 1465.8.) The amount increased to $30 on July 28, 2009. This amount increased to $40 on October 19, 2010. The fee is assessed for each conviction. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) It applies to any case, regardless of when the crime was committed. (People v. Alford (2008) 42 Cal.4th 749, 754-755.) The amount that applies is the amount in effect when the "conviction" occurred, which is when there is a guilty or no contest plea or a guilty verdict. (See People v. Davis (2010) 185 Cal.App.4th 998, 1000-1001.) It cannot be assessed in juvenile cases. (Edgar v. Superior Court (2004) 120 Cal.App.4th 1306, 1309.)

Effective January 1, 2009, a court facilities fee of $30 is added. (Gov. Code, § 70373.) The wording of the statute suggests it applies per conviction, not per case. The fee also applies to misdemeanors. A fee of $35 is added for each infraction. Again, what matters is when the "conviction" occurred, not when the crime was committed.

Penal Code section 1463.27 was enacted which allows counties to assess an additional $250 for every fine, penalty, or forfeiture imposed for violating Penal Code section 273.5 or 243, subdivision (e)(1).

Starting in 2011, there is a $4 penalty assessment for every conviction for a violation of the Vehicle Code or a local ordinance adopted pursuant to the Vehicle Code, except for parking offenses. (Gov. Code, § 76000.10, subd. (c)(1).)

Under subdivision (b) of section 1202.4, the court must impose a restitution fine when the defendant is convicted. Starting August 3, 1995, the court must impose a parole revocation restitution fine of the same amount when the defendant is sentenced to prison; this fine is stayed unless the defendant violates parole. (Pen. Code, § 1202.45.) Effective August 16, 2004, the court must also impose a probation revocation restitution fine of the same amount when the defendant is placed on probation, and the fine is stayed unless the defendant violates probation. (Pen. Code, § 1202.44.) The ex post facto clause prohibits imposing the parole revocation and probation revocation restitution fine for a crime committed before the effective date of the statute, regardless of when the revocation occurs. (People v. Callejas (2000) 85 Cal.App.4th 667, 678.) The restitution fine must be not less than $200 and not more than $10,000 ($100-$1000 for misdemeanor convictions). The minimum restitution fine increased to $240 (or $120 for misdemeanor convictions) in 2012, $280 (or $140) in 2013, and $300 (or $150) in 2014.

Therefore, a $100 fine for a felony conviction in Santa Clara County for a felony committed on or after January 1, 2012, resulting in probation, would require additional penalty assessments amounting to $310, plus $70 in court security and court facility fees, not to mention restitution fines of at least $720 and victim restitution. Ironically, efforts by the state to balance the budget on the backs of criminal defendants have been thwarted by the tough-on-crime movement. Proposition 9, passed in November 2008, requires all money collected from defendants to go first to victim restitution. (Prop. 9, § 4.1, amending Cal. Const., art. I, § 28, subd. (b)(13)(C).) Given the meager wages paid in prison, the state treasury might never see the fines levied on defendants who are ordered to pay even modest amounts of victim restitution.

There are additional penalty assessments for convictions for driving under the influence. (See, e.g., Pen. Code, § 1463.14, subd. (b) [$50 per conviction]; Veh. Code, §§ 23645 [$50], 23649 [$100].)

December 15, 2004; updated December 5, 2013

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