2021 could not have come soon enough. Last year was challenging to the say the least. On top of a pandemic raging around us, panel attorneys had to weather a range of other challenges, including fires, closed schools, and reduced caseloads and income. Thank you for all your hard work and sticking with us. We know you are underpaid and under-appreciated for what is one of the most important and difficult career paths a lawyer can choose. Respect.
We look forward to our continued collaboration in 2021 and a hoped for return to normalcy in the coming months. For now, we share some information below that provides a taste of the positive changes 2021 brings us, including FDAP’s advice and sample argument regarding the elimination of many fees and fines, and our colleague Garrick Byers’s annual compendium of new laws and rules.
There will be more to come. In particular, we are excited to announce that an appellate-focused webinar on the breakthrough Racial Justice Act is in the works!
Advice and Sample Briefing Relating to AB 1869, Which Eliminated Many Fees and Fines
AB 1869 Eliminated Many Fees and Fines, Effective July 1, 2021
AB 1869 (signed by Governor Newsom on September 18, 2020) repeals the authority of counties to impose certain administrative fees and the authority of courts to order defendants to pay the costs of the public defender. AB 1869 eliminated fees related to producing pre-plea and presentence reports; administering probation, mandatory supervision and “county” parole; processing arrests and citations; and administering home detention programs, continuous electronic monitoring programs, work furlough programs, and work release programs.
The bill, which takes effect July 1, 2021, also makes the unpaid costs of fees already assessed uncollectible and unenforceable and requires vacating the portion of any judgment ordering such costs. (Pen. Code, § 1465.9, subd. (a), eff. July 1, 2021.) The clear language of section 1465.9 makes the bill fully retroactive, as described in the accompanying sample briefing. Given that clear legislative intent, we have not also included in the sample brief a retroactivity analysis under In re Estrada (1965) 63 Cal.2d 740, which would add the complexity of briefing whether the particular fee is punishment.
A companion bill (SB 1290) eliminates unpaid debt in juvenile delinquency cases resulting from certain administrative fees that were eliminated in 2018. (Welf. & Inst. Code, § 223.2, eff. Jan. 1, 2021.) Several counties had continued to collect fees that had been imposed prior January 1, 2018, and SB 1290 requires those counties to cease collection efforts. Because the bill affects only juvenile cases with a dispositional hearing prior to January 1, 2018, it is unlikely to impact many of our clients.
The imposition of many of the fees eliminated by AB 1869 may not be reflected in the record on appeal. However, some may appear on probation orders or abstracts of judgment, including booking fees (Gov. Code, § 29550 et seq), probation services fees, and production of a pre-plea or presentence report (Pen. Code, § 1203.1b). Other fees (e.g. reimbursement for public defender services pursuant to Gov. Code, §§ 27712 & 27753) may be orally imposed at sentencing but not included in written orders.
How to Obtain Relief for a Client Under AB 1869
Because AB 1869 will not take effect until July 1, 2021, attorneys should consider the procedural posture of each case when assessing how to advise a client and whether to seek prospective relief from fees under the bill. Claims under section 1465.9 will be ripe for adjudication by May 2, 2021, because the Court’s judgment on appeal will not become final until the remittitur issues at least 60 days after the Court’s decision, i.e. after July 1, 2021. (See Cal. Rules of Court, rule 8.272(b)(1)(A); People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Accordingly, we recommend the following approachClick Here for the FDAP Sample AB 1869 Argument
If the appeal is not likely to be final by June 30, 2021 (true for cases which will not have an opinion issued before May 2 or cases in which a petition for review is expected), the opening brief has not yet been filed, and a claim based on AB 1869 is not the only claim on appeal, attorneys should include such a claim in the opening brief. (See FDAP’s sample briefing.)If the appeal is not likely to be final by June 30, 2021, and a non-Wende opening brief has already been filed, attorneys should consider filing a supplemental opening brief;If the remittitur will issue before June 30, 2021, we do not believe a claim in the Court of Appeal can be filed, as the claim won’t be ripe until after the remittitur issues;Because relief will be readily available in the superior court, we do not recommend raising this issue for the first time in a petition for rehearing or a petition for review; If counsel will not be raising the issue on appeal (either because the fees issue would be the sole issue raised or for other reasons), then shortly before the legislation’s effective date (i.e. in June 2021), counsel should request prospective relief in the trial court pursuant to section 1237.2.If attorneys are not able to raise a claim based on AB 1869 in the Court of Appeal, they should advise clients that all unpaid debt associated with these fees will be uncollectible as of July 1, 2021.
Please note that FDAP’s advice may change as we receive more information about the bill’s implementation. Please consult with your assisting attorney if you have case-specific concerns or questions.
The Fines & Fees Justice Center has compiled a list of the fees eliminated.
The Debt Free Justice California website has resources and information sheets in several languages.
New Laws Decoded – 2021
Appellate lawyer Garrick Byers has prepared a helpful 2021 guide to new criminal laws, rules, regulations and forms. Download it here.