People v. Palmer CA1/2

Filed 5/11/23 P. v. Palmer CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 (Assembly Bill No. 177), which repealed and replaced former section 1203.1 as of January 1, 2022.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-