Restitution Fine California

The restitution fine requirement was first codified in 1973 in former Government Code section 13967 as follows: "Upon a person being convicted of a crime of violence committed in the State of California resulting in the injury or death of another person, if the court finds that the defendant has the present ability to pay a fine and finds that the economic impact of the fine upon the defendant's dependents will not cause such dependents to be dependent on public welfare the court shall, in addition to any other penalty, order the defendant to pay a fine commensurate with the offense committed, and with the probable economic impact upon the victim, but not to exceed ten thousand dollars ($ 10,000)." (Stats. 1973, ch. 1144, 2, p. 2351.) In other words, as originally adopted in 1973, the restitution fine was mandatory in a case involving a crime of violence unless the defendant did not have the present ability to pay it or the economic effect of the fine would cause the accused's dependents to be dependent on public welfare. Government Code section 13967 was amended on a number of occasions, each time including the foregoing limited exception to the mandatory restitution fine; the restitution fine could not be imposed if the accused did not have the present ability to pay it or its economic effect was to cause the defendant's dependents to become reliant on welfare. (Stats. 1977, ch. 1122, 2, p. 3598; Stats. 1979, ch. 713, 1, p. 2201; Stats. 1980, ch. 530, 3, p. 1474; Stats. 1981, ch. 166, 3, p. 967.) In 1983, the Legislature substantially rewrote the restitution fine statutes. Government Code section 13967, subdivision (a) was redrafted to delete the exception to liability for the restitution fine based on an inability to presently pay and forcing dependents onto welfare. In 1983, Government Code section 13967, subdivision (a) was rewritten to provide in pertinent part: "Upon a person being convicted of any crime in the State of California, the court shall, in addition to any other penalty provided or imposed under the law, order the defendant to pay a restitution fine . . . . If the person is convicted of one or more felony offenses, the court shall impose a separate an additional restitution fine of not less than one hundred dollars ($ 100) and not more than ten thousand dollars ($ 10,000). . . . Except as provided in Section 1202.4 of the Penal Code, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section." (Stats. 1983, ch. 1092, 135.2, p. 3998.) At the same time, in 1983, section 1202.4, subdivision (a) was adopted and it provided: "In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of section 13967 of the Government Code. Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant's present ability to pay. However, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of that portion of the restitution fine which exceeds the prescribed minimum amount. When such a waiver is granted, the court shall state on the record all reasons supporting the waiver." (Stats. 1983, ch. 1092, 320.1, p. 4058.) In 1983, for the first time, the restitution fine statutes utilized language similar to that now appearing in section 1202.4, subdivision (b)(1) which allowed for waiving the payment of the fine over the minimum amount specified in Government Code section 13967, subdivision (a) when there were compelling and extraordinary reasons for such a determination and those justifications were stated on the record. In 1984, the minimum fine was deleted from Government Code section 13967, subdivision (a). Payment of the restitution fine was made mandatory except as provided by section 1202.4. (Stats. 1984, ch. 1340, 1, p. 4722.) Section 1202.4, subdivision (a) provided much as it does now: "In any case in which a defendant is convicted of a felony, the court shall order the defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code. Such restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant's present ability to pay. However, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fine. When such a waiver is granted, the court shall state on the record all reasons supporting the waiver." (Stats. 1984, ch. 1340, 2, p. 4722.) Since then, section 1202.4, subdivision (b) in all of its amended formats has, as it does now, required the imposition of the restitution fine except when compelling and extraordinary reasons were present and they were stated on the record. It was not until 1995, 12 years after the "compelling and extraordinary reasons" language was first adopted in 1983 that section 1202.45 was enacted. No committee reports were prepared in connection with the adoption of section 1202.45. ( People v. Oganesyan (1999) 70 Cal. App. 4th 1178, 1185, 83 Cal. Rptr. 2d 157.) Unlike section 1202.4, subdivision (b)(1), section 1202.45 does not indicate the additional restitution fine may not be imposed if there are compelling and extraordinary reasons for not doing so. Rather, the express language of section 1202.45 requires the imposition of the additional restitution fine to be in "the same amount is that imposed pursuant to subdivision (b) of Section 1202.4." Quite obviously, if no restitution fine is imposed pursuant to section 1202.4, subdivision (b)(1), either because of judicial error or the existence of compelling and extraordinary circumstances which are set forth upon the record, then no section 1202.45 additional restitution fine may be imposed. The statutory language does not support the suggestion that even if a section 1202.4, subdivision (b)(1) fine is imposed, if compelling and extraordinary reasons are present, no section 1202.45 additional restitution fine may be assessed and stayed pending a violation of parole, if such ever occurs. Moreover, none of the committee reports prepared in connection with the post-1995 amendments to section 1202.4 indicate a legislative intention that the section 1202.4, subdivision (b)(1) fine may be imposed but if compelling and extraordinary reasons are present and are set forth upon the record, the obligation to assess the section 1202.45 parole restitution fine is excused. The sole criterion for not imposing a section 1202.45 additional restitution fine is if the section 1202.4, subdivision (b)(1) restitution fine was not imposed as a result of judicial error or by reason of the trial court setting forth on the record the compelling and extraordinary reasons for not doing so.