People v. Palmer CA1/2

Filed 5/11/23 P. v. Palmer CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and
Respondent, A159548
(San Mateo County
v. Super. Ct. No. 16-SF-004359A)
LORIE PALMER,
Defendant and
Appellant.
Lorie Palmer appealed from the denial of her motion to strike a
restitution collection fee, contending the trial court erred in imposing the fee
without consideration of her ability to pay. Due to statutory changes while
the appeal was pending, the parties now agree that the challenged fee is
unenforceable and uncollectible. Because the fee was imposed
administratively and not by court order, there is no judgment or order for us
to reverse and we will dismiss the appeal as moot.
1
BACKGROUND
Palmer pleaded guilty to appropriation of public funds (Pen. Code,
§ 424, subd. (a))1 in 2016.2 She was placed on probation and ultimately
stipulated to pay restitution of $301,343. In October 2019, Palmer filed a
motion to set aside a $41,054.40 restitution collection fee that San Mateo
County Revenue Services (Revenue Services) had imposed pursuant to former
section 1203.1, subdivision (l). The County opposed the motion, the trial
court denied it and Palmer filed this appeal.
Palmer’s opening brief, filed on January 5, 2021, argued that the trial
court erred in failing to make a finding of ability to pay the restitution
collection fee, in violation of People v. Dueñas (2019) 30 Cal.App.5th 1157.
Palmer requested, however, that we defer decision on the appeal because the
issue was pending in the California Supreme Court in People v. Kopp
(S257844, review granted November 13, 2019). After the parties’ remaining
briefs were filed, on July 8, 2021, we stayed the appeal pending the Supreme
Court’s decision in Kopp as requested in Palmer’s opening brief.
Meanwhile, the Legislature adopted Assembly Bill No. 177 (2021-2022
Reg. Sess.) (Assembly Bill No. 177), which repealed and replaced former
section 1203.1 as of January 1, 2022. (Stats. 2021, ch. 257, §§ 21, 22.) This
change eliminated the restitution collection fee, as subdivision (l) of the
section 1203.1 that became operative on January 1, 2022 addresses entirely
different subject matter and the fee is no longer mentioned in the statute.
Assembly Bill No. 177 also amended section 1465.9 to add subdivision (b),
providing that “[o]n and after January 1, 2022 the balance of any court-
1 Further statutory references will be to the Penal Code.
2The facts underlying Palmer’s conviction are irrelevant to the issue
on appeal and need not be recited.
2
imposed costs pursuant to” enumerated statutes including section 1203.1 “as
those sections read on December 31, 2021, shall be unenforceable and
uncollectible and any portion of a judgment imposing those costs shall be
vacated.” (Stats. 2021, ch. 257, § 35.)
On April 12, 2023, noting that more than two years had passed since
Palmer filed her opening brief and Kopp had not yet been set for argument,
we lifted the stay and notified the parties of our intention to decide the merits
of the appeal. We asked the parties to address the effect, if any, of the
statutory amendments that, subsequent to the briefing of the appeal, had
eliminated former section 1203.1, subdivision (l), and adopted section 1465.9,
subdivision (b).
In their letter briefs, the parties agree that Assembly Bill No. 177
rendered the restitution collection fee previously authorized by former
section 1203.1, subdivision (l), “unenforceable and uncollectible.” (§ 1465.9,
subd. (b).) Palmer asks us to vacate the order imposing the restitution
collection fee with regard to any portion remaining unpaid as of the effective
date of the amendment eliminating former section 1203.1, subdivision (l).3
The County, by contrast, asks us to dismiss the appeal as moot. The
County maintains that because Assembly Bill No. 177 rendered the
restitution collection fee “unenforceable and uncollectible” as of January 1,
2022, the portion of the judgment imposing the fee has been vacated by
operation of law.
3 Palmer’s letter brief refers to this date as January 1, 2021. We
assume this to be a typographical error: As the rest of Palmer’s letter brief
recognizes, the provisions of Assembly Bill No. 177 eliminating the
administrative collection fee became operative on January 1, 2022.
(Stats. 2021, ch. 257, §§ 21, 22.)
3
If the restitution collection fee had been imposed by court order or
judgment, we would reject the County’s argument and vacate the relevant
portion of the judgment or order, as the plain language of section 1465.9,
subdivision (b), requires. (See People v. Clark (2021) 67 Cal.App.5th 248, 260
[rejecting argument that fees eliminated by Assembly Bill No. 1869 (2019-
2020 Reg. Sess.) became unenforceable automatically, without need to vacate
court order, because statute also requires that portion of judgment imposing
fees be vacated].)
Both parties, however, ignore the fact that there is no judgment or
order imposing that fee: The court ordered Palmer to pay victim restitution,
but the collection fee was added by Revenue Services.4 Accordingly, while
there is no question Palmer cannot be required to pay any portion of the
restitution collection fee that remained unpaid as of January 1, 2022, there is
no judgment or court order for us to vacate and, therefore, no effective relief
we can provide. 5 “ ‘ “[A] case becomes moot when a court ruling can have no
practical effect or cannot provide the parties with effective relief.” ’ ” (People
v. Gregerson (2011) 202 Cal.App.4th 306, 321, quoting People v. Rish (2008)
4 Under former section 1203.1, subdivision (l), the restitution collection
fee was to be added by the “entity collecting” victim restitution, with the
amount set by the board of supervisors if the fee was collected by the county
and by the court if the fee was collected by the court. San Mateo County
established the fee by ordinance, to be paid to the Probation Department or
county collection agent. (San Mateo County Ord. Code, § 2.43.040(H).)
5 The County attached to its letter brief a copy of a document entitled
“Public Notice” released by Revenue Services on May 3, 2022, which
announces the fees eliminated by Assembly Bill No. 177, including the
restitution collection fee under former section 1203.1, subdivision (l), and
states that all cases with outstanding balances for these fees will be adjusted
to eliminate the outstanding balance.
4
163 Cal.App.4th 1370, 1380.) As this case has become moot, dismissal of the
appeal is appropriate.
DISPOSITION
The appeal is dismissed as moot.
5
STEWART, P.J.
We concur.
MILLER, J.
MARKMAN, J. *
People v. Palmer (A159548)
* Judge of the Alameda Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
6