Filed 6/17/26 P. v. Alemi CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A174355
v.
YOSEF ALEMI, (Alameda County Super. Ct. No.
21-CR-012322)
Defendant and Appellant.
Yosef Alemi appeals after he pled no contest to unlawfully
taking a vehicle without its owner’s consent (Veh. Code, § 10851,
subd. (a)) and the trial court placed him on probation for two
years. Alemi asserts the trial court should be directed to
reconsider a restitution fine, a probation revocation restitution
fine, and ancillary costs imposed without consideration of his
ability to pay. We agree that remand is required for
reconsideration of fines and fees but otherwise affirm.
BACKGROUND
A.
On October 13, 2021, Christine H. was sitting in her car at
a gas station when Alemi pulled the door open—overcoming
Christine’s efforts to hold it shut. Alemi grabbed Christine’s arm,
she screamed, and the two struggled. Christine eventually exited
her car but left the keys in the ignition. Alemi got in and drove
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the car away from the gas station. Christine’s car was returned
after Alemi’s arrest.
B.
The Alameda County District Attorney charged Alemi, via
information, with carjacking (Pen. Code, § 215, subd. (a)).1 The
information further alleged that Alemi had suffered a prior
conviction that was a serious felony (§ 667, subd. (a)(1)) and a
“strike” (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
After an unsuccessful attempt at mental health diversion
(Pen. Code, §§ 1001.35, 1001.36), Alemi pled no contest, in
exchange for a two-year probationary sentence, to the lesser
included offense of unlawfully taking a vehicle without its
owner’s consent (Veh. Code, § 10851, subd. (a)). He also admitted
an aggravating circumstance (Cal. Rules of Court, rule
4.421(b)(4))—that he had been on post release community
supervision when he committed the offense. Pursuant to the
negotiated disposition, the trial court suspended imposition of
sentence and ordered two years of formal probation. The People
dismissed the remaining allegations.
Alemi’s counsel asked the trial court to waive fines and
fees. Citing People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas), disapproved in part by People v. Kopp (2025) 19 Cal.5th
1, 23, fn. 17 (Kopp), Alemi’s counsel stated he was unable to pay
them because he was unemployed and had no other source of
income. The trial court denied Alemi’s request to consider his
inability to pay and the court imposed a $300 restitution fine
(Pen. Code, § 1202.4, subd. (b)(1)), a (suspended) $300 probation
revocation restitution fine (id., § 1202.44), a $40 court operations
assessment (id., § 1465.8, subd. (a)(1)), and a $30 court facilities
assessment (Gov. Code, § 70373, subd. (a)(1)). The court stated:
“I do have questions about Dueñas. . . . And I’ve been very
1 Undesignated statutory references are to the Penal Code.
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receptive to granting these; probably more than anyone. [¶] But
in this case, because of probation’s strong stance on rejecting this
plea, based on the victim in this case, I’m going to impose it.”
DISCUSSION
Citing Kopp, supra, 19 Cal.5th 1, which was decided after
his sentencing, Alemi contends the judgment should be reversed
and remanded so the trial court may reconsider his ability to pay
the imposed restitution fine, probation revocation restitution fine,
and assessments. We agree that remand is required.
Our Supreme Court decided, in Kopp, supra, 19 Cal.5th 1,
that a defendant may challenge the imposition of a punitive fine
under the United States and California Constitutions’ excessive
fines provisions. (Id. at pp. 23, 30.)2 The court used the “fine”
term to refer to penalties provided by the Legislature to punish a
criminal offense and included restitution fines (Pen. Code, §
1202.4) and parole revocation restitution fines (id., § 1202.45)
within that category. (Kopp, at pp. 11-15.) Kopp also held that
equal protection principles require trial courts, if requested, to
consider a defendant’s ability to pay before imposing ancillary
costs that fund the courts—such as court operations (Pen. Code, §
1465.8, subd. (a)(1)) and facilities assessments (Gov. Code, §
70373, subd. (a)(1)). (Kopp, at pp. 24-29, 30-31.) Accordingly, the
court directed the trial court on remand to consider the
defendant’s ability to pay before imposing those assessments.
(Id. at p. 31.)
Alemi and the People agree that Kopp mandates reversal of
the court operations and court facilities assessments imposed in
2 The Eighth Amendment to the United States Constitution
provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”
Article I, section 17 of the California Constitution similarly
prohibits “[c]ruel or unusual punishment” and “excessive fines.”
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this case. We agree that, because the trial court failed to
consider Alemi’s ability to pay such ancillary costs despite his
request, we must remand for such consideration. (See Kopp,
supra, 19 Cal.5th at pp. 14-15, 24-31.) Because there is no
rational basis for distinguishing criminal defendants from
indigent civil litigants—who are afforded waivers for similar
assessments—equal protection principles require the trial court
to consider a defendant’s inability to pay before imposing these
ancillary costs. (Id. at pp. 25, 28, 30.)
Alemi also requests the opportunity to challenge the $300
restitution fine and the $300 probation revocation fine under the
excessive fines clause. The People insist we should affirm
imposition of these fines—arguing that Alemi either forfeited the
argument by failing to sufficiently support it in his opening brief
or that the $300 fines are not disproportionate as a matter of law.
(See United States v. Bajakajian (1998) 524 U.S. 321, 334 [“[t]he
touchstone of the constitutional inquiry under the Excessive
Fines Clause is the principle of proportionality: [t]he amount of
the forfeiture must bear some relationship to the gravity of the
offense that it is designed to punish”]; People ex rel. Lockyer v.
R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 [same].)
Our Supreme Court only recently decided that an excessive
fines analysis, “which considers ability to pay, is the proper
vehicle to challenge punitive fines.” (Kopp, supra, 19 Cal.5th at
p. 23.) Because Kopp was decided after Alemi was sentenced and
he previously relied solely on Dueñas, supra, 30 Cal.App.5th
1157, we agree that Alemi, like the defendant in the high court’s
case, should be given the opportunity to develop an excessive
fines argument in the first instance on remand. (Kopp, at p. 23
[“[w]e remand to give [the defendant] the opportunity to assert
the legal analyses applicable to such a challenge and argue how
the particular facts of this case inform such an inquiry”].) We
express no opinion on the merits of that analysis.
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DISPOSITION
We vacate the court operations assessment ($40), the court
facilities assessment ($30), the restitution fine ($300), and the
probation revocation restitution fine ($300). The matter is
remanded to the trial court solely for further proceedings,
consistent with this opinion and Kopp supra, 19 Cal.5th 1,
concerning the imposition of fines and ancillary costs. In all
other respects, the judgment is affirmed.
BURNS, J.
WE CONCUR:
SIMONS, ACTING P. J.
CHOU, J.
People v. Alemi (A174355)
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