Filed 10/6/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM EVERS,

Defendant and Appellant.

 A164989

 (Mendocino County Super.

 Ct. No. 12-CR-01240)

William Evers pled guilty to assault on a police officer with a 

firearm after being arrested in connection with a string of residential 

burglaries. At sentencing, the trial court ordered Evers to pay 

restitution to two victims and assessed a 15 percent administrative fee 

on the restitution amounts. The court also imposed a $10,000

restitution fine and imposed but suspended a $10,000 parole restitution 

fine. The court declined Evers’ request to reduce the two restitution 

fines by applying a statutory formula and concluded that, under the 

circumstances, the maximum fines were warranted.

Evers now argues—and the Attorney General agrees—that the 

15 percent administrative fee was invalid because the statute pursuant 

to which it was imposed was repealed before the date of his sentencing. 

Evers also argues that the restitution fines were unconstitutional

under People v. Dueñas (2019) 30 Cal.App.5th 1157 and similar cases

requiring sentencing courts to take into account a defendant’s ability to 

pay, and that he properly raised his constitutional challenge to the 
2

fines by submitting two informal post-judgment motions to the trial

court under Penal Code section 1237.2.1 The Attorney General 

responds that Evers forfeited his Dueñas challenge by failing to make 

any argument or objection on that basis at the sentencing hearing, and

that a motion under section 1237.2 does not cure the forfeiture.

We reverse the trial court’s orders insofar as they require Evers 

to pay the 15 percent administrative fee, but otherwise affirm, finding 

that Evers’ motions under section 1237.2 did not excuse his forfeiture.

BACKGROUND

After being released from prison in 2018, Evers worked briefly 

in 2020, but otherwise was unemployed. In 2021, he was living in the 

forest in Mendocino County and obtaining food, alcohol, firearms, and 

other items from occupied and unoccupied residences.

In May 2021, two officers responded to a report that Evers had 

broken into a residence. Upon encountering Evers, one officer chased 

him on foot. Evers shot at or near the officer and escaped. He was 

later apprehended and charged by criminal complaint with attempted 

murder of a peace officer, grand theft of a firearm, two counts of 

vandalism, and 15 counts of burglary, along with special circumstances

allegations.

Pursuant to a plea agreement, the court added a count to the 

complaint for assault on a peace officer with a firearm, and dismissed 

the remaining counts. As a factual basis for his plea, Evers admitted 

that he “assaulted Mendocino County Sheriff’s Deputy Thomas Kelly 

with a firearm knowing Deputy Kelly was a peace officer engaged in 

the lawful performance of his duties.” Evers pled guilty to the single 

1 Undesignated statutory references are to the Penal Code.
3

count and two prior strikes, and agreed to a sentence of 25 years to life 

in prison.

At the outset of the March 24, 2022 sentencing hearing, Evers’ 

attorney asked “to be heard on the restitution fine.” The court first 

ordered Evers to pay direct restitution of $1,450 and $839.99 to two 

victims, with 10 percent annual interest, and a 15 percent

administrative fee. It permanently stayed $30.00 and $40.00 court 

assessments, and otherwise accepted the plea.

The court then explained that “typically [it] reduces the 

restitution fine,” but, in Evers’ case, “[i]n light of the amount of actual 

restitution ordered . . . , which is approximately $2,500, I am not going 

to reduce the restitution fines . . . under [section] 1202.4(b). So the 

Court will order the $10,000 [restitution fine].” The court also ordered 

but suspended a $10,000 parole restitution fine under section 1202.45. 

(See § 1202.45, subd. (a) [parole restitution fine shall be imposed in 

same amount as restitution fine].) Evers’ attorney argued that the 

fines should be reduced to $6,000 according to a statutory formula. 

Under section 1202.4, subdivision (b), the court responded, it was 

required to impose a restitution fine, absent a finding under 

subdivision (c) of “compelling and extraordinary reasons.” The court 

stated it could not “make those findings,” but noted other factors it 

could consider to increase the fine above the $300 statutory minimum, 

including Evers’ ability to pay. It stated that Evers “will be at least 

able to earn wages while incarcerated,” and noted he would be 

incarcerated for 25 years to life, so inability to pay was not “a reason 

not to impose [the restitution] fine or to reduce that fine.” The court 

explained that the seriousness of the offense, the circumstances of its 
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commission, the economic gain to Evers, the extent of loss to others, 

and the number of victims supported the maximum fine.

Evers’ attorney then asked the court to use the formula in 

section 1202.4, subdivision (b)(2) to reduce the restitution fine 

to $7,500. The court rejected that proposal for the reasons it had 

already stated. It confirmed final details of the sentence and entered 

judgment.

In November and December 2022, Evers’ appellate counsel sent 

two informal letter motions to the trial court, asking the court to 

(1) strike the 15 percent administrative fee applied to the two direct 

victim restitution orders; and (2) reduce the restitution fines to the 

statutory minimum of $300 and stay enforcement until there is a 

showing of ability to pay. Among other things, counsel argued that the 

many practical limitations on work in prison and the amount of victim 

restitution ordered meant that Evers may never have the ability to 

make any payments against the restitution fines. Counsel cited 

section 1237.2 as requiring the filing of the informal motions in the 

trial court prior to appeal. The trial court did not act on the motions.

DISCUSSION

On appeal, Evers continues to challenge the fees and fines 

imposed at sentencing. First, he argues that the 15 percent

administrative fee is not statutorily authorized. Second, he argues that 

the court’s imposition of the two $10,000 restitution fines violated his 

constitutional rights to be free of excessive fines and to due process and 

equal protection, at least without consideration of his ability to pay 

them. We address the issues in turn.
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1. Restitution Administrative Fee

Evers first argues that the 15 percent administrative fee applied 

to the victim restitution orders was invalid because the statutory 

subdivision pursuant to which it was imposed had been repealed at the 

time of his sentencing. Section 1203.1, subdivision (l) was indeed 

repealed as of January 1, 2022, more than two months before Evers 

was sentenced. (Stats. 2021, ch. 257, § 22; see People v. Prudholme

(2023) 14 Cal.5th 961, 966, fn. 8.) The Attorney General concedes that 

we should reverse the 15 percent administrative fee. We agree.

2. Restitution Fines

The Attorney General argues that Evers has forfeited his

constitutional challenges to the restitution fines. Evers concedes that 

his trial counsel did not make constitutional arguments at sentencing,

did not argue that Evers lacked the ability to pay the fines, and did not 

request a hearing concerning his ability to pay. His sentencing hearing 

occurred more than two years after Dueñas was decided. We therefore 

presume his trial counsel was aware of the case. On those bare facts, 

we agree with the Attorney General that Evers forfeited his 

constitutional challenges to the restitution fines.

Evers argues that the two informal motions his appellate counsel 

submitted directly to the trial court pursuant to section 1237.2 negate 

any forfeiture because they gave the trial court an opportunity to 

correct the alleged error. In relevant part, section 1237.2 provides that 

“[a]n appeal may not be taken by the defendant from a judgment of 

conviction on the ground of an error in the imposition . . . of fines . . .

unless the defendant first presents the claim in the trial court at the 

time of sentencing, or if the error is not discovered until after 
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sentencing, the defendant first makes a motion for correction in the 

trial court . . . .”

Section 1237.2 creates an alternative pathway to correct certain 

sentencing errors without resorting to appeal. (People v. Clark (2021) 

67 Cal.App.5th 248, 255–256.) The Legislature created this pathway

“ ‘to conserve judicial resources and [allow litigants to] efficiently 

present claims in a single forum.’ ” (Id. at p. 256; cf. People v. Fares

(1993) 16 Cal.App.4th 954, 957 [“We are disturbed that this attempt at 

a minor correction of a sentence error has required the formal appellate 

process”].) Because the purpose of the rule is to avoid the unnecessary 

expenditure of appellate resources, it “only applies in cases where the 

erroneous imposition or calculation of fines, penalty assessments, 

surcharges, fees, or costs are the sole issue on appeal.” (§ 1237.2; see 

Clark, at p. 256.)

Section 1237.2 requires a “motion for correction” only when “the 

error is not discovered until after sentencing.” (§ 1237.2.) That does 

not appear to describe the situation here. As we have noted, there is no 

indication that Evers’ trial counsel was unaware of Dueñas and similar 

cases prior to the sentencing hearing.

2 Yet even when the trial court 

2 Evers suggests in his reply brief that, if defense counsel “was 

aware of the error in the trial court but opted to waive the error, then 

trial counsel would clearly have provided ineffective assistance of 

counsel, which constitutes an avoidance of the State’s affirmative 

defense of forfeiture or waiver.” We do not consider an ineffective 

assistance claim raised for the first time in a reply brief. (People v. 

Duff (2014) 58 Cal.4th 527, 550, fn. 9.) We likewise do not consider 

Evers’ claim made for the first time in reply that his plea form, by 

omitting the notation “TBD” next to the checked box, did not advise 

him that he would have to pay an amount to the Victim Restitution 

Fund.
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stated that it was taking Evers’ ability to pay into account by 

considering the possibility of future wages he could earn while in 

prison, Evers did not challenge the court’s reasoning, request a hearing 

on his ability to pay, or argue that the amount was unconstitutional.

Instead, he argued only that the court should rely on statutory 

formulas to impose fines of $6,000 or at most $7,500, far more than 

what he contends on appeal is constitutionally permissible.

“[A] sentencing court may not impose . . . restitution fines 

without giving the defendant, on request, an opportunity to present 

evidence and argument why such monetary exactions exceed his ability 

to pay.” (People v. Cowan (2020) 47 Cal.App.5th 32, 48, review granted

June 17, 2020, S261952, italics added.) Once caselaw exists holding 

that a hearing on ability to pay is constitutionally required when 

requested, a defendant who does not object or ask for a hearing forfeits 

the claim of error. (People v. Greeley (2021) 70 Cal.App.5th 609, 624; 

cf.; People v. Leon (2020) 8 Cal.5th 831, 854 [finding no forfeiture where 

trial court imposed $10,000 restitution fine without mentioning it at 

the sentencing hearing, depriving defendant of any opportunity to 

object].) 

Some cases have construed section 1237.2 as a vehicle to correct 

ministerial errors, rather than to resolve substantive challenges to the 

interpretation or application of sentencing statutes, in which case it 

would not apply to Evers’ claim in any event. (See People v. Clark, 

supra, 67 Cal.App.5th at p. 256; People v. Jordan (2018) 21 Cal.App.5th 

1136, 1142.) But regardless, in light of the purposes of the statute 

discussed above, we find no basis to conclude that it was intended to 

create a mechanism to avoid forfeiture in this context by having 
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appellate counsel present the trial court with constitutional and factual

arguments concerning the defendant’s ability to pay months after the 

sentencing hearing has concluded—a mechanism that arbitrarily would 

be available only when the imposition of the fines is “the sole issue on 

appeal.” (§ 1237.2.) 

To preserve an issue for appeal, an objection must be timely. 

(See, e.g., Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264; SCI 

California Funeral Services, Inc. v. Five Bridges Foundation (2012) 

203 Cal.App.4th 549, 564; Yield Dynamics, Inc. v. TEA Systems Corp.

(2007) 154 Cal.App.4th 547, 584; In re A.R. (2014) 228 Cal.App.4th 

1146, 1154 & fn. 5.) Section 1237.2 does not change our conclusion that

Evers’ constitutional objection was not. 

DISPOSITION

The trial court’s direct victim restitution orders are reversed 

insofar as they impose a 15 percent administrative fee on the

restitution amounts. Evers’ sentence is otherwise affirmed.

3

GOLDMAN, J.

WE CONCUR:

BROWN, P. J.

STREETER, J.

3 We deny Evers’ request for judicial notice as irrelevant to our 

resolution of this appeal.
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Trial Court: Superior Court of Mendocino County

Trial Judge: Honorable Keith Faulder

Counsel for Defendant and 

Appellant: 

Walter K. Pyle

Counsel for Plaintiff and 

Respondent: 

Rob Bonta

Attorney General of California

Lance E. Winters

Chief Assistant Attorney General

Jeffrey M. Laurence

Senior Assistant Attorney General

Arthur P. Beever

Deputy Attorney General

Claudia H. Phillips

Deputy Attorney General