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Filed 4/22/22 P. v. Walling CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Yuba)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES CHARLES WALLING, SR.,

Defendant and Appellant.

C094497

(Super. Ct. No. CRF2100829)

Appointed counsel for defendant James Charles Walling, Sr., filed an opening 

brief that sets forth the facts of the case and asks this court to review the record and 

determine whether there are any arguable issues on appeal. (People v. Wende (1979) 

25 Cal.3d 436.) We affirm the judgment as modified to vacate a fee.
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FACTUAL AND PROCEDURAL BACKGROUND

Over the course of several months, defendant repeatedly contacted the victim, his 

ex-girlfriend, in violation of a domestic violence restraining order. Among other things, 

he visited her home, sent her threatening texts and e-mails, and left notes to her on street 

signs in the area.

The prosecution charged defendant with a single count of stalking while subject to 

a restraining order. (Pen. Code, § 646.9, subd. (b).)1 On June 4, 2021, defendant pleaded 

no contest to the charge in exchange for a maximum sentence of three years in custody.

At the sentencing hearing, defense counsel asked for a term of probation, which 

the trial court denied based on defendant’s past difficulties following court orders. The 

court imposed the low term sentence of two years in custody and a no-contact order 

covering the victim. (§ 646.9, subd. (k).) The court also imposed a $300 restitution fine 

(§ 1202.4); a $300 suspended parole revocation restitution fine (§ 1202.45); a $40 court 

operations fee (§ 1465.8); and a $30 conviction assessment (Gov. Code, § 70373).2 The 

court imposed a 10 percent collection fee on the restitution fine. Defendant did not raise 

any objections based on an inability to pay the fines and fees.

Defendant filed a timely notice of appeal without a certificate of probable cause. 

The case was fully briefed on March 15, 2022, and assigned to this panel on March 25, 

2022.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening 

brief setting forth the facts of the case and requesting that this court review the record to 

determine whether there are any arguable issues on appeal. (People v. Wende, supra, 

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 Undesignated statutory references are to the Penal Code.

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 The trial court also imposed, but later struck, a domestic violence prevention fee.
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25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 

days of the date of filing of the opening brief. More than 30 days have elapsed, and we 

have received no communication from defendant.

After reviewing the record, we shall make a modification based on a new law that 

favors defendant. At the sentencing hearing, the trial court imposed a ten percent 

collection fee for the $300 restitution fine under section 1202.4. At the time of the 

sentencing hearing, this fee was permitted under former section 1202.4, subdivision (l), 

which stated: “At its discretion, the board of supervisors of a county may impose a fee to 

cover the actual administrative cost of collecting the restitution fine, not to exceed 10 

percent of the amount ordered to be paid, to be added to the restitution fine and included 

in the order of the court, the proceeds of which shall be deposited in the general fund of 

the county.”

In September 2021, the Legislature enacted Assembly Bill No. 177 (2021-2022 

Reg. Sess.) (Assembly Bill No. 177), which repealed and re-enacted section 1202.4, 

effective January 1, 2022; the re-enacted statute eliminated subdivision (l). (Stats. 2021, 

ch. 257, §§ 19-20.) Assembly Bill No. 177 also amended section 1465.9, subdivision (b), 

which states, in relevant part: “On and after January 1, 2022 the balance of any courtimposed costs pursuant to Section . . . 1202.4 . . . , as [that section] read on December 31, 

2021, shall be unenforceable and uncollectible and any portion of a judgment imposing 

those costs shall be vacated.” (Stats. 2021, ch. 257, § 35.) Accordingly, the balance of 

the collection fee imposed by the court is now unenforceable and uncollectible, and 

defendant is entitled to have the fee vacated. (See People v. Clark (2021) 67 Cal.App.5th 

248, 259-260 [construing similar language in Assembly Bill No. 1869 (2019-2020 Reg. 

Sess.) to vacate fee].) 
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Although the minute order from the sentencing hearing reflects this fee, the 

abstract of judgment does not, and thus a new abstract of judgment is not required. 

However, the court should amend its internal records to ensure that the modification of 

the judgment to vacate the fee is properly reflected therein. 

We find no other arguable error that would result in a disposition more favorable 

to defendant.

DISPOSITION

The judgment is modified to vacate the 10 percent collection fee imposed under 

former section 1202.4, subdivision (l). As modified, the judgment is affirmed. The trial 

court is directed to update its records accordingly.

 /s/

Duarte, J.

We concur:

 /s/

Blease, Acting P. J.

 /s/

Robie, J.