Filed 7/26/22 P. v. Potts CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B314733
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA094029)
v.
TIMOTHY POTTS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Scott T. Millington, Judge. Reversed and
remanded with directions.
Jason A. Lieber, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
This appeal concerns a 10 percent administrative
assessment on a $300 restitution fine. At the time defendant and
appellant Timothy Potts was convicted and sentenced, the trial
court imposed a $300 restitution fine pursuant to Penal Code
section 1202.4, subdivision (b).1 Also at that time, section 1202.4,
subdivision (l), statutorily obligated the trial court to impose a
10 percent administrative fee on that fine.
Effective January 1, 2022, as the People agree, such
administrative fees are no longer permitted and any unpaid
amount must be vacated from the judgment. Despite this
concession, the People oppose defendant’s request on appeal to
vacate the 10 percent administrative fee, raising procedural
objections. We are not convinced by the People’s contentions.
Thus, we reverse the trial court’s order denying defendant’s
request concerning his restitution fine with directions to vacate
the 10 percent assessment imposed pursuant to former section
1202.4, subdivision (l).
PROCEDURAL BACKGROUND
In 2017, a jury convicted defendant of one count of injuring
a girlfriend (§ 273.5, subd. (f)(2)) and six counts of attempting to
dissuade a witness (§ 136.1, subd. (a)(2)). The trial court also
found true that defendant had suffered two prior “strike”
convictions (§§ 667, subds. (b)-(j), 1170.12), served five prior
prison terms (§ 667.5, subd. (d)), and suffered two serious felony
convictions (§ 667, subd. (a)(1)). (People v. Potts (May 3, 2019),
B290757 [nonpub. opn.], p. 2.) He was sentenced to a prison term
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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of 35 years to life, plus a determinate term of eight years eight
months. (Ibid.)
Defendant appealed, and on May 3, 2019, we affirmed the
judgment and remanded the matter for resentencing to allow the
trial court to exercise its discretion to strike one or both of
defendant’s serious felony enhancements pursuant to Senate Bill
No. 1393. (People v. Potts, supra, B290757 [nonpub. opn.], at
p. 3.)
On remand, the trial court declined to strike either
enhancement. Defendant again appealed, arguing that the trial
court erroneously denied his request to reconsider his motion
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497). We again affirmed the judgment. (People v. Potts (Jan. 19,
2021), B303966 [nonpub. opn.].)
Before the Court of Appeal issued its 2021 opinion, it
appears that the trial court vacated the June 1, 2018, sentence,
and on July 14, 2020, resentenced defendant based upon a letter
from the California Department of Corrections and
Rehabilitation. The trial court again sentenced defendant to 35
years to life, plus eight years eight months. The trial court also
imposed a $300 restitution fine pursuant to section 1202.4,
subdivision (b). The trial court’s order is silent regarding the
then statutorily mandated 10 percent administrative fee on the
restitution fine.
On August 3, 2021, defendant wrote a letter to the trial
court asking that it order that any deductions from his trust
account be satisfied from funds that he earned in prison, rather
than from funds deposited into his account by family members.
That same day, the trial court denied his request.
Defendant timely filed a notice of appeal. He argues that
because the Legislature changed the Penal Code effective
January 1, 2022, to eliminate the 10 percent administrative fee
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assessed on the restitution fine, we should vacate that portion of
the judgment.
DISCUSSION
I. Relevant law
At the time of defendant’s sentencing hearing, section
1202.4, subdivision (l), statutorily obligated a trial court to add a
10 percent administrative fee to the restitution fine imposed.
(See People v. Robertson (2009) 174 Cal.App.4th 206, 210.)
Effective January 1, 2022, section 1202.4, subdivision (l), was
eliminated; a trial court can no longer assess a 10 percent
administrative fee in connection with a restitution fine, and any
unpaid portion of a fee previously imposed must be vacated.
(People v. Clark (2021) 67 Cal.App.5th 248, 257; People v. Lopez-
Vinck (2021) 68 Cal.App.5th 945, 950.)
II. Analysis
Pursuant to the foregoing, the 10 percent administrative
fee assessed on the $300 restitution fine must be vacated. The
People do not seem to disagree; rather, they raise three
procedural arguments in support of their claim that the trial
court’s order should be affirmed. We address each in turn.
A. Forfeiture
First, the People argue that defendant’s contention on
appeal has been forfeited because he did not raise it in the trial
court. Although we agree that defendant did not sufficiently
raise this issue in his August 2021 letter, we exercise our
discretion to reach the merits of this issue. (In re S.B. (2004) 32
Cal.4th 1287, 1293.) At the time defendant filed his August 2021
letter, amended section 1202.4 was not effective. Moreover, the
issue presented is straight-forward statutory interpretation, and
the parties agree that the 10 percent administrative fee must be
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vacated. Were we to base our decision solely on forfeiture,
defendant presumably would file another request concerning this
assessment in the trial court, further burdening the already
overworked trial courts.
B. Assessment was imposed
Almost in passing, the People assert that the
administrative fee was never imposed; thus, the issue is moot.
We cannot agree. Admittedly the trial court’s order is silent
regarding the 10 percent administrative fee. But, as the People
point out in their respondent’s brief, that fee was mandatory.
There is no reason for us to assume that it was not imposed
and/or that it would not have been collected.
C. Mootness
Finally, the People assert that because the administrative
fee has been eliminated, the appeal is moot. Again, we disagree.
As the cases cited in the respondent’s brief make clear, any
unpaid portion of a previously imposed fee must be vacated
(People v. Clark, supra, 67 Cal.App.5th at p. 257; People v. Lopez-
Vinck, supra, 68 Cal.App.5th at p. 950); the fee is not vacated by
operation of law.
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DISPOSITION
The order is reversed. The matter is remanded to the trial
court with directions to vacate the 10 percent administrative fee
imposed pursuant to former section 1202.4, subdivision (l).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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