Filed 8/6/26 P. v. King CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A173729
v.
ARAIJAH KING, (Alameda County
Super. Ct. No. 25CR004727)
Defendant and Appellant.
Araijah King challenges the trial court’s imposition of a
$300 restitution fine under section 1202.4, subdivision (b)
following her plea of no contest to one count of assault with force
likely to produce great bodily injury. (Pen. Code, § 245,
subd. (a)(4).) She argues that section 1202.4 is unconstitutional
because it prohibited the court from considering whether she had
the ability to pay the $300 fine, while ability to pay is a relevant
factor to an excessive fines challenge under the state and federal
constitutions. King makes this argument based substantially on
People v. Kopp (2025) 19 Cal.5th 1 (Kopp), which our Supreme
Court decided while this appeal was pending and which clarified
the law regarding challenges to restitution fines based on a
defendant’s inability to pay them. We are not convinced that
section 1202.4 is facially unconstitutional, but we will remand
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this matter to the trial court to give King an opportunity to bring
an as-applied challenge to the restitution fine under the excessive
fines clauses of the Eighth Amendment and California
Constitution. (Cal. Const., art. I, § 17.)
BACKGROUND
In April 2025, King walked out of a store with over $400 in
merchandise without paying.1 A witness followed King to the
parking lot and began taking pictures of her and her vehicle,
which was stolen. King backed out of the parking stall and drove
towards the witness as the witness stood on the sidewalk. King
drove onto the sidewalk. The witness lifted her left leg, and King
struck the bottom of the witness’s foot with the bumper of her
vehicle.
King was charged with various offenses but pleaded no
contest to a single count of assault with force likely to produce
great bodily injury and admitted an aggravating factor that she
had served a prior jail or prison term. (Cal. Rules of Court, rule
4.421(b)(3).) The remaining counts in the complaint were
dismissed. Prior to taking her plea, the trial court notified King
that the agreement called for one year in jail, two years of
1 The probation report was placed in the confidential clerk’s
transcript, but King cites and relies on these confidential
materials without seeking to file her brief under seal. We treat
this as a waiver of the confidentiality. (People v. Coddington
(2000) 23 Cal.4th 529, 617, fn. 38, overruled on other grounds by
Price v. Superior Court (2001) 25 Cal.4th 1046, 106 & fn. 13 &
superseded by statute on other grounds as stated in People v.
Zamudio (2008) 43 Cal.4th 327, 355–356; see Cal. Rules of Court,
rule 8.47(c)(2) [to maintain confidentiality parties can move to file
a document under seal].)
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probation, and a restitution fund fine. The judge also told King
that a different judge would sentence her and could reject the
plea agreement.
The probation report prepared in advance of sentencing
stated that King was transient, unemployed, and had no assets or
verifiable income. Other than odd jobs cleaning homes, she had
never been employed. She was interested in job training
programs. King said that she was determined to work. In a
letter from her attorney appended to the report, King asked the
court to conduct an ability to pay hearing pursuant to People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), disapproved in part
by Kopp, supra, 19 Cal.5th at p. 23 & fn. 17, before imposing the
court facilities and court operations assessments. King also
requested pursuant to Dueñas that the execution of the
restitution fine under section 1202.4 be stayed until after the
court held an ability to pay hearing and found she could pay it.
At sentencing in June 2025, the trial court imposed the
negotiated term of two years of formal probation, with one year in
jail as a term of probation. It imposed a $300 restitution fund
fine. It struck the “civil fee.” By this the court apparently meant
that it struck the court facilities and operations assessments,
since those do not appear in the court’s minute order.
DISCUSSION
Section 1202.4, subdivision (b) states, “In every case where
a person is convicted of a crime, the court shall impose a separate
and additional restitution fine, unless it finds compelling and
extraordinary reasons for not doing so and states those reasons
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on the record.” For a felony, the minimum fine is $300 and the
maximum is $10,000. (§ 1202.4, subd. (b)(1).) Fines for a
misdemeanor range from $150 to $1000. (Ibid.) Section 1202.4,
subdivision (c) further provides, “The court shall impose the
restitution fine unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record. A
defendant’s inability to pay shall not be considered a compelling
and extraordinary reason not to impose a restitution fine.
Inability to pay may be considered only in increasing the amount
of the restitution fine in excess of the minimum fine pursuant to
paragraph (1) of subdivision (b).”
The Supreme Court granted review in Kopp to resolve a
disagreement among the Courts of Appeal about how to handle
challenges to punitive fines imposed on criminal defendants.2
(Kopp, supra, 19 Cal.5th at p. 9.) Dueñas had held that due
process required a trial court to stay execution of a restitution
fine until the People demonstrated that the defendant had the
ability to pay the fine. (Dueñas, supra, 30 Cal.App.5th at
p. 1172.)
Kopp disagreed and held that due process did not require
an ability to pay hearing before imposing every punitive fine.
(Kopp, supra, 19 Cal.5th at p. 23.) Kopp instructed instead that
2 Kopp, supra, 19 Cal.5th at pages 14–15, 24–30, also
considered the framework for challenges to ancillary costs,
including court facilities and operations assessments under
Government Code section 70373, subdivision (a)(1) and Penal
Code section 1465.8, subdivision (a)(1), respectively. Because the
trial court did not impose such assessments here, we need not
discuss this aspect of Kopp.
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“the excessive fines analysis, which considers ability to pay, is the
proper vehicle to challenge punitive fines.” (Ibid.) The excessive
fines analysis arises under the Eighth Amendment to the United
States Constitution and article I, section 17 of the California
Constitution. (Id. at pp. 11 & fn. 6, 23.) Following United States
v. Bajakajian (1998) 524 U.S. 321, 327–328, our Supreme Court
in People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005)
37 Cal.4th 707, 728 stated that four factors are relevant to
determining whether a fine is unconstitutionally excessive:
“(1) the defendant’s culpability; (2) the relationship between the
harm and the penalty; (3) the penalties imposed in similar
statutes; and (4) the defendant’s ability to pay.” Kopp also
observed that a fine is excessive only if it is grossly
disproportional to the gravity of the offense that it punishes, a
deferential standard that recognizes that the Legislature makes
judgments in the first instance about the appropriate
punishment for offenses and judicial determinations of the
gravity of a particular criminal offense are inherently imprecise.
(Kopp, at p. 23.) Kopp remanded to give the defendant the
opportunity to raise such a challenge. (Id. at pp. 23–24.)
King contends that section 1202.4 is facially
unconstitutional because it prohibits a trial court from
considering a defendant’s ability to pay the minimum $300 fine,
while Kopp made clear that a defendant’s ability to pay is one of
the factors relevant to an excessive fines challenge. “[A] statute
will be interpreted to avoid serious constitutional questions if
such an interpretation is fairly possible.” (People v. Buza (2018)
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4 Cal.5th 658, 682.) It would be remarkable and plainly
unconstitutional for the Legislature to prohibit a trial court from
considering a defendant’s invocation of a constitutional right. We
will therefore not construe section 1202.4 as preventing
defendants from raising an excessive fines challenge to the
minimum fine. Instead, we read the statute as simply
establishing that as a statutory matter in the absence of an
excessive fines challenge, a trial court cannot refrain from
imposing the minimum $300 restitution fine based on a
defendant’s inability to pay alone. This is congruent with Kopp
and excessive fines analysis jurisprudence, which considers a
defendant’s ability to pay as one of four relevant factors, not as
dispositive on its own. (See People ex rel. Lockyer v. R.J.
Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; People v.
Aviles (2019) 39 Cal.App.5th 1055, 1070 [“While ability to pay
may be part of the proportionality analysis, it is not the only
factor.”]; Kopp, at p. 23 [citing Aviles with approval].) As so
construed, section 1202.4 does not prevent a trial court from
considering a defendant’s ability to pay, together with the other
factors, when considering a defendant’s excessive fines challenge
to a $300 restitution fine.
In the alternative to vacating the restitution fine based on
the unconstitutionality of section 1202.4, King asks us to remand
to the trial court to hold a hearing to consider her ability to pay
the fine. Neither King nor the trial court had the benefit of Kopp
when King was sentenced, so she did not present her challenge to
the restitution fine through the proper excessive fines analysis
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that Kopp makes clear is appropriate. Accordingly, as Kopp itself
did, we will remand this matter to the trial court to give King the
“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.” (Kopp, supra, 19 Cal.5th at p. 23.) We express
no opinion on the proper outcome for this inquiry.3
DISPOSITION
The matter is remanded to the trial court to give King the
opportunity to raise an excessive fines challenge to the
restitution fine under section 1202.4. In all other respects, the
judgment is affirmed.
BROWN, P. J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
People v. King (A173729)
3 Respondent briefly suggests that section 1202.4 is saved
from any constitutional infirmity by section 1465.9,
subdivision (d), which provides that any unpaid restitution fine
“shall be unenforceable and uncollectible” 10 years after the date
of imposition. We express no opinion on the validity of this
contention, which was raised in a single sentence in the
respondent’s brief and restated during oral argument.
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