People v. Donahoe CA4/1

California Court of Appeal · D065063 · 2014-11-18 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCN295799
Trial judge: Aaron H. Katz
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Gilbert Nares (author), O'Rourke, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:29Z · confidence high

The trial court affirmed the defendant's sentence but failed to explicitly lift the suspension of the $240 probation revocation fine upon probation revocation. The appellate court affirmed the judgment but modified it to clarify that the probation revocation fine is now due, rejecting the defendant's argument that all fines were satisfied by custody under the plea bargain.

Ruling reviewed	Standard	The court	The model
Whether the plea bargain term 'All fines satisfied by custody' required the trial court to apply custody credit to all financial obligations (assessments, fees, and fines) or only to base and restitution fines. “By its terms, the plea bargain provided for the satisfaction of 'fines' by custody, not for the satisfaction of 'assessments' or 'fees' by custody.”	de novo	correct	agree with court The court correctly interpreted the specific language of the plea agreement and distinguished between punitive fines and non-punitive assessments/fees, which are not subject to custody credit under Penal Code section 2900.5.
Whether the trial court's failure to explicitly lift the suspension of the $240 probation revocation fine constituted an error requiring modification. “The judgment is modified to reflect that the $240 probation revocation fine (§ 1202.44) is now due.”	de novo	error	agree with court The court identified that the trial court omitted the probation revocation fine from the sentencing minutes and abstract, which should have been lifted upon probation revocation per Penal Code section 1202.44 and People v. Guiffre, and modified the judgment to correct this omission.
Whether the defendant's argument regarding the probation revocation fine, raised for the first time in the reply brief, should be considered. “It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party.”	de novo	correct	agree with court The court correctly applied the procedural rule that arguments raised for the first time in a reply brief are waived and will not be entertained, citing People v. Tully.

Authorities

relied: People v. Guiffre (2008) 167 Cal.App.4th 430 — Upon probation revocation, the suspension of a probation revocation fine should be lifted.
relied: People v. Robinson (2012) 209 Cal.App.4th 401 — Assessments such as the court operations assessment and criminal conviction assessment are not considered punitive and thus cannot be satisfied by custody credit under Penal Code section 2900.5.
relied: People v. Rivera (1998) 65 Cal.App.4th 705 — The criminal justice administration fee is not considered punitive and cannot be satisfied by custody credit.
relied: People v. Tully (2012) 54 Cal.4th 952 — Arguments made for the first time in a reply brief will not be entertained due to unfairness to the other party.

The appellate opinion: sound — The opinion is sound because it correctly interprets the plea agreement's language to distinguish between fines and assessments/fees, applies the correct statutory framework for custody credit, and properly modifies the judgment to address the omitted probation revocation fine.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

After revoking probation on a negotiated plea to stalking in violation of a restraining order (Pen. Code, § 646.9, subd. (b)), the trial court imposed the three-year middle term and ordered all previously imposed fines reimposed; Donahoe argued the plea term "All fines satisfied by custody" meant the full $1,264 in fines, fees and assessments had been discharged by his custody. The Court of Appeal rejected the argument, holding the plea term covered only "fines" (the $800 base fine, which the trial court implicitly treated as satisfied) and not the restitution fine, assessments or fee, declined to consider a reply-brief argument about the probation revocation fine, and modified the judgment to make the $240 probation revocation fine due while otherwise affirming.

Ruling reviewed	Standard	The court	The model
Interpretation of the plea bargain term "All fines satisfied by custody": trial court properly treated only the $800 base fine as satisfied by custody and required the restitution fine, assessments and fee to be paid “By its terms, the plea bargain provided for the satisfaction of "fines" by custody, not for the satisfaction of "assessments" or "fees" by custody.”	unclear	correct	agree with court The court reads the plea term textually: 'fines' excludes assessments and fees, and the restitution fine is excluded because the change-of-plea form separately acknowledged a mandatory restitution fine of $200 to $10,000. The textual distinction between fines and non-punitive assessments/fees is supported by Robinson and Rivera, and the trial court's 2012 order (base fine 'concurrent with custody,' remainder payable at $50/month) is consistent with that reading. The exclusion of the restitution fine rests on thinner reasoning (an acknowledgment of a required range does not by itself say the fine cannot be satisfied by custody), and the court does not state a standard of review or cite plea-interpretation authority, but the result is defensible.
Whether Penal Code section 2900.5 custody credits can satisfy the court operations assessment, criminal conviction assessment and criminal justice administration fee “This section does not apply to assessments which are not considered punitive, such as the $40 court operations assessment (§ 1465.8) and the $30 criminal conviction assessment, sometimes called a court facilities assessment (Gov. Code, § 70373).”	de novo	correct	agree with court Section 2900.5, subdivision (a), by its terms applies to 'fines'; the cited authorities hold the § 1465.8 and Gov. Code § 70373 assessments and the Gov. Code § 29550 booking fee are non-punitive and thus not fines. Donahoe conceded the point in his reply brief, so the conclusion is well supported.
Argument raised for the first time in the reply brief that the probation revocation fine is governed by the plea term "all fines satisfied by custody" “"It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075.)”	unclear	not reached	agree with court Declining to consider new arguments in a reply brief is a settled appellate rule and Tully is correctly cited for it. The court's application is within its discretion, though it is somewhat in tension with the court's own sua sponte decision to add the probation revocation fine to the judgment in the same opinion.
Trial court's failure at the 2013 sentencing to lift the suspension of the $240 probation revocation fine (§ 1202.44) upon revoking probation and imposing prison “The reporter's transcript, abstract of judgment and the sentencing minutes do not refer to the probation revocation fine, the suspension of which should have been lifted.”	de novo	error (law misapplied)	agree with court Section 1202.44 makes the probation revocation fine mandatory and provides it becomes effective upon revocation of probation; Guiffre supports that the fine must be given effect when probation is revoked. Correcting an unauthorized omission of a mandatory fine on appeal is permitted, though the court did not cite authority for its appellate power to do so (e.g., People v. Smith) and the correction increases the appellant's obligations on his own appeal.

Authorities

relied: People v. Guiffre (2008) 167 Cal.App.4th 430 — The suspension of a probation revocation fine under section 1202.44 must be lifted when probation is revoked; the fine is mandatory
relied: People v. Robinson (2012) 209 Cal.App.4th 401 — The court operations assessment (§ 1465.8) and criminal conviction assessment (Gov. Code, § 70373) are non-punitive and are not fines subject to satisfaction by custody credits under section 2900.5
relied: People v. Rivera (1998) 65 Cal.App.4th 705 — The criminal justice administration (booking) fee under Government Code section 29550.2 is not punitive
relied: People v. Tully (2012) 54 Cal.4th 952 — Arguments raised for the first time in a reply brief will not be entertained because of unfairness to the opposing party
missed: People v. Shelton (2006) 37 Cal.4th 759 — A negotiated plea agreement is a contract interpreted under general contract principles, looking to the mutual intention of the parties as expressed in the agreement's words and the circumstances of its making
missed: People v. Smith (2001) 24 Cal.4th 849 — An appellate court may correct a trial court's failure to impose a mandatory revocation fine as an unauthorized sentence even though the issue was not raised below

The appellate opinion: sound with gaps — The opinion reaches a defensible result by reading the plea term 'fines' literally and relying on authority that assessments and fees are non-punitive, and it correctly identifies the omitted probation revocation fine. It skips the standard of review and plea-interpretation authority (Shelton), gives only a thin reason for excluding the restitution fine from the plea term, cites no authority for its power to add a fine against the appellant on his own appeal, and states 'We affirm' while actually modifying the judgment.

How this analysis was made · dispute it

unusual disposition

Opinion

Filed 11/18/14 P. v. Donahoe CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D065063

Plaintiff and Respondent, v. (Super. Ct. No. SCN295799)

KEVIN DONAHOE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Aaron H.

Katz, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent. In 2012, Kevin Donahoe entered a negotiated guilty plea to stalking in violation of a restraining order (Pen. Code,1 § 646.9, subd. (b)). The plea bargain contained the statement "All fines satisfied by custody." The court suspended imposition of sentence and placed Donahoe on three years' probation. The probation order required Donahoe to pay a total of $1,264: $800 as a base fine, including surcharge and penalty assessment (§ 1465.7, subd. (a)); a $40 court operations assessment (§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); a $154 criminal justice administration fee (Gov. Code, § 29550.1); and a $240 restitution fine (§ 1202.4, subd. (b)). The court suspended $240 probation revocation fine (§ 1202.44). The court orally stated that the $800 fine was "concurrent with custody." The written probation order stated "All fines . . . are to be paid . . . at the combined rate of $50.00 per month."

In 2013, the court revoked probation. On October 11, the court sentenced Donahoe to the three-year middle prison term and ordered "[a]ll previous imposed fines will be reimposed." The abstract of judgment and sentencing minutes list Donahoe's financial obligations as a $40 court operations assessment, a $30 criminal conviction assessment, a $154 criminal justice administration fee, a $240 restitution fine (to be paid "forthwith" from Donahoe's prison wages; § 2085.5, subd. (a)) and a suspended $240 parole revocation fine (§ 1202.45). The reporter's transcript, abstract of judgment and the sentencing minutes do not refer to the probation revocation fine, the suspension of which 1 Further statutory references are to the Penal Code unless otherwise specified. 2 should have been lifted. (§ 1202.44; People v. Guiffre (2008) 167 Cal.App.4th 430, 434- 435.)

Donahoe appeals. He contends "[t]o the extent the court's [2012] oral pronouncement of sentence referred only to the $800 fine to be satisfied by custody, instead of 'all fines,' the court imposed an unauthorized sentence." He argues that because his plea agreement contemplated that the $1,264 in fines would be satisfied by custody, at the rate of $30 per day, and because his presentence custody and his custody since October 11, 2013, "greatly exceed the 43 days required to satisfy the $1,264 fines imposed[,] [t]his court [should] therefore issue an opinion stating that all fines have been satisfied." We affirm.

DISCUSSION

By its terms, the plea bargain provided for the satisfaction of "fines" by custody, not for the satisfaction of "assessments" or "fees" by custody. Thus, the plea bargain provided for the satisfaction by custody of, at most, the $800 base fine and the restitution fine. The restitution fine was excluded from such satisfaction by Donahoe's acknowledgment on the change of plea form that he was required to pay a restitution fine of between $200 and $10,000.2 At the 2012 sentencing hearing, the court carried out the terms of the plea bargain by making the $800 base fine "concurrent with custody" and requiring the remaining "fines" be paid at the "rate of $50.00 per month." At the 2013 2 Additionally, at the 2012 change of plea hearing, Donahoe testified that he understood that if he violated the conditions of probation, he could be sent to prison and be required to pay a $10,000 fine. 3 sentencing hearing, the court did not mention the base fine, an implied statement that Donahoe's time in custody had satisfied that fine, and ordered the restitution fine be paid.

The above conclusion is borne out by section 2900.5, subdivision (a). When Donahoe was sentenced in 2013, that subdivision allowed "days of custody" to be applied toward the satisfaction of "any fine, on a proportional basis, including, but not limited to, base fines and restitution fines, which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. . . .

In any case where the court has imposed both a . . . term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines."3 This section does not apply to assessments which are not considered punitive, such as the $40 court operations assessment (§ 1465.8) and the $30 criminal conviction assessment, sometimes called a court facilities assessment (Gov. Code, § 70373). (People v. Robinson (2012) 209 Cal.App.4th 401, 403-404, 407.) The $154 criminal justice administration fee (Gov. Code, § 29550.1) is also not considered punitive. (See People v. Rivera (1998) 65 Cal.App.4th 705 [Gov. Code, § 29550.2].) Donahoe concedes in his reply brief that these two assessments and this fee "cannot be satisfied by application of . . . section 2900.5."

3 In 2013, section 2900.5, subdivision (a), was amended to delete the references to restitution fines. (Stats. 2013, ch. 59, § 07.) 4 Donahoe contends for the first time in his reply brief that the probation revocation fine is also governed by the "all fines satisfied by custody" term of the plea agreement.

"It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075.)

DISPOSITION

The judgment is modified to reflect that the $240 probation revocation fine (§ 1202.44) is now due. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

Cites, in this corpus

People v. Robinson No. B238016 · 2012-09-14
People v. Tully S030402 · 2012-07-30
People v. Guiffre C057127 · 2008-10-08
People v. Rivera No. C023065 · 1998-07-20