Filed 4/26/22 P. v. Binns CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARQUES SAYYED BINNS,

Defendant and Appellant.

B312611

Los Angeles County

Super. Ct. No. BA403335

APPEAL from a judgment of the Superior Court of Los

Angeles County, George G. Lomeli, Judge. Affirmed as modified 

and remanded with directions.

Jean Ballantine, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Amanda V. Lopez and Viet H. Nguyen, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

In 2013, defendant Marques Sayyed Binns and a 

codefendant were convicted of murder; Binns, who was the 

getaway driver, was prosecuted as an aider and abettor under the 

natural and probable consequences doctrine. In 2019, after the 

Legislature abolished that theory of liability, Binns petitioned for 

recall and resentencing under Penal Code section 1170.95. In 

2021, on remand from this court, the trial court granted the 

petition and resentenced Binns to the target offense of assault 

with a firearm.

On appeal, Binns argues that, based on his excess custody 

credits, his restitution fine should be deemed satisfied. The 

People concede the point, and we modify the judgment 

accordingly. Binns also argues that he should not be required to 

pay the victim restitution award because it was based on his 

murder conviction, which no longer stands, and his conduct 

underlying the assault conviction was not a substantial and 

proximate cause of the claimed financial losses. We reject Binns’s 

challenges to the victim restitution award. Because the 

resentencing minute order and amended abstract of judgment do

not, however, reflect the sentencing proceedings, we remand for 

correction of the order and amended abstract of judgment.
3

BACKGROUND1

1. 2013 Murder Conviction

By information filed October 24, 2012, Binns and 

codefendant Theron Hiraań Shakir were charged with one count 

of murder (Pen. Code,2 § 187, subd. (a); count 1) committed for 

the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). The 

information also alleged that Shakir personally and intentionally 

discharged a firearm, which proximately caused death 

(§ 12022.53, subds. (d) & (e)(1)) and that a principal personally 

and intentionally discharged a firearm, which proximately caused 

death (ibid.). 

The trial evidence established that on December 29, 2010,

Taburi Watson was shot multiple times and killed near St.

Andrews Park at 87th and St. Andrews. A bicycle was nearby in

the street. A park employee heard the shots and later saw

Watson lying on the ground and two people walking southbound

on St. Andrews.

Creonia Ward—Shakir’s former girlfriend—implicated 

Shakir, Timothy Allen, and Binns in the killing. Ward told 

detectives that Shakir, Allen, and Binns left her house. She also 

told detectives that on the night of the shooting, Shakir told her 

that Binns, Shakir, and Allen drove to the park. Binns remained 

1 In his 2021 petition, Binns notes that his statement of facts was 

taken from this court’s 2015 opinion, People v. Binns (June 30, 2015, 

B250120) [nonpub. opn.] (Binns I).) Our factual and procedural 

summary is taken from Binns I and our 2020 opinion, People v. Binns

(Sept. 22, 2020, B297560) [nonpub. opn.] (Binns II).

2 All undesignated statutory references are to the Penal Code. 
4

in the car while Shakir and Allen exited and later shot Watson, 

who had been on a bicycle. After the shooting, the three went to 

Binns’s mother’s house and hid the gun next door. The three later 

went to Ward’s house, where Binns said, “I can’t wait to tell 

Brandon, he’s going to be so happy.” Ward testified Binns’s

cousin, Brandon, previously had been shot, and Binns, Shakir, 

and Allen felt they needed to retaliate.

According to Detectives Myra Kellum and John Ferreria, 

Binns told them that he drove to St. Andrews Park, and Shakir 

and Allen exited the car. Shakir and Allen went through the 

park, saw someone, and started shooting. Binns said, “it would be 

a lie to say I didn’t know what they was fixing to start doing, but 

not till it was too late; that’s when we was already there.” (Sic.) 

After the shooting, Binns drove Shakir and Allen to Binns’s 

house and “[t]hen they told him that I hid some guns for them.”

Binns also told detectives that Shakir was saying “it was like a 

favor to [Binns] to go and shoot.”

At trial, the jury was instructed that it could convict Binns 

as an aider and abettor of murder if he either: (1) directly aided 

and abetted first or second degree murder; or (2) aided and 

abetted assault with a deadly weapon, and murder was a natural 

and probable consequence of that crime.3

In his closing argument, the prosecutor argued that Binns, 

by acting as the getaway driver, aided and abetted premeditated 

murder. He also argued, in the alternative, that even if Binns did 

not want to kill or help kill anyone, he could be guilty of second 

3 The jury was instructed with CALJIC Nos. 3.00, 3.01, 3.02, 9.00, 8.00, 

8.10, 8.11, 8.20, 8.30, 8.70, 8.71, and 8.74.
5

degree murder by aiding and abetting assault with a firearm. The 

prosecutor explained: 

I know they’re looking for rivals. This is a logical 

place. Maybe they’re going to assault somebody 

with the firearms. Maybe they’ll shoot at them. 

Maybe they’ll hit them. Maybe they’ll miss. 

Maybe they’ll just try to scare them. Who knows? 

Under the law, you can still be guilty of murder. 

Because when you go around looking for rivals to 

shoot—whether you intend to kill or not—if you 

shoot them, and you are just thinking, “I’m going 

to assault them with a firearm,” and they end up 

dying, then that murder is what we call, in the 

law, a natural and probable consequence of the 

assault. Then everybody involved is guilty of the 

murder. 

The prosecutor emphasized that even if Binns was just 

“sitting in the car” and “didn’t share the same evil intent” as the 

shooters—“even if he’s just thinking, ‘they’re going out there; I’m 

here ready to help them; they’re just going to assault’ ”—he was 

still guilty of murder because he aided and abetted the assault. 

In January 2013, the jury convicted Binns of second degree 

murder. It found true the allegation that a principal personally 

and intentionally discharged a firearm, causing death, but found 

the gang allegation not true. 

Binns was sentenced to 15 years to life for count 1. Because 

the jury found the gang allegation not true, no sentence was 

imposed for the firearm enhancement. (§ 186.22, subd. (e)(1)(A).) 

The court imposed a $280 restitution fine under section 1202.4, 
6

subdivision (b), and imposed and stayed an equal parolerevocation restitution fine under section 1202.45. The court also 

imposed a $40 court security assessment under section 1465.8, 

subdivision (a)(1), and a $30 criminal conviction assessment 

under Government Code section 70373. Finally, the court ordered 

Binns to pay victim restitution of $1,353 to the victim’s mother

and $7,500 to the State Victim Compensation Board, for a total 

restitution award of $8,853, under section 1202.4, subdivision (f).

Binns appealed, and the judgment was affirmed in Binns I.

2. Section 1170.95 Petition and Appeal

On January 7, 2019, Binns filed a petition for resentencing 

under section 1170.95. The petition alleged that a “complaint, 

information, or indictment was filed against me that allowed the 

prosecution to proceed under a theory of felony murder or murder 

under the natural and probable consequences doctrine”; at trial, 

he “was convicted of 1st or 2nd degree murder pursuant to the 

felony murder rule or the natural and probable consequences

doctrine”; he could not be convicted of murder under sections 188 

and 189 as amended; and he “was convicted of 2nd degree murder 

under the natural and probable consequences doctrine ... and 

[he] could not now be convicted of murder” under section 188 as 

amended. Binns did not check the box on the petition requesting 

appointment of counsel.

The case was called on March 14, 2019. The minute order 

for that date states: “Defendant is not present in court, and not 

represented by counsel. No appearance nor any contact with a 

representative of the Los Angeles County District Attorney’s 

Office this date. This matter is ordered continued to May 9, 2019, 

in this court.” A copy of the minute order was forwarded to the 

District Attorney, but not to Binns.
7

On April 19, 2019, the court issued an order denying the 

petition. No attorneys were present. After summarizing the 

factual background, the court wrote:

In his petition filed pursuant to P.C. 1170.95, the 

petitioner, Mr. Binns claims that he is entitled to 

relief for resentencing as he was neither the 

actual killer, nor one who aided and abetted the 

commission of the murder with the intent to kill, 

nor a major participant who acted with reckless 

indifference to human life. This Court however, 

disagrees. Specifically, based upon the totality of 

the evidence it is clear that the petitioner aided 

and abetted the two individuals who committed 

the murder when he drove with them to the 

location of the incident not only realizing at some 

point that the two individuals were armed, but 

also realizing what they were preparing to do or 

in his words, “ ... fixing to start doing ...[ ]” albeit 

according to the petitioner not until it was too 

late. Accordingly, it can be argued that the 

defendant in his actions was a major participant 

who acted with reckless indifference.

Accordingly, as a major participant who acted 

with reckless indifference to human life at the 

time that he aided and abetted the shooters in 

this case the petitioner is arguably not eligible for 

resentencing relief pursuant to P.C. 1170.95. See 

P.C. [s]ections 189(a)(1) and 1170.95(a)(3).
8

The order didn’t specify whether the court believed Binns aided 

and abetted the murder or aided and abetted the assault with a 

firearm.

“As a second and independent ground for denying [the] 

petition for resentencing,” the court also found S.B. 1437 and 

section 1170.95 unconstitutional.

Binns filed an “Opposition to Denial of Petition for 

Resentencing Pursuant to PC 1170.95(a)” in this court as a 

petition for writ of habeas corpus. Because the petition was filed 

within the time to appeal from the order denying the petition for 

recall and resentencing, we deemed the habeas petition to be a 

notice of appeal.

On appeal, Binns argued that the trial court erred by: 

summarily denying the petition without following the statutory 

procedure set forth in section 1170.95; denying the petition on the 

basis that Binns was “arguably not eligible for resentencing 

relief”; denying the petition based on its conclusion that Binns 

was a “major participant who acted with reckless indifference” to 

human life, a felony-murder theory that does not apply here 

because Binns was prosecuted under the natural and probable 

consequences doctrine; and denying the petition on the ground 

that S.B. 1437 is unconstitutional. The People properly conceded 

the errors, and we agreed with the parties. 

We therefore reversed and remanded for further 

proceedings as follows: “The order denying Binns’s petition under 

section 1170.95 is reversed and the matter is remanded with 

directions to appoint counsel to represent Binns, if requested, 

obtain a response from the prosecution, and allow Binns to file a 

reply. (§ 1170.95, subd. (c).) The court shall then determine, in 

accordance with the views expressed in this opinion, whether 
9

Binns has made a prima facie showing that he is entitled to 

relief. If it determines Binns has made the required showing, the 

court shall issue an order to show cause and proceed as directed 

under section 1170.95.” (Binns II, at p. 14.)

3. Remand, OSC, and Subsequent Proceedings

On remand, the court appointed a bar panel attorney, 

Joseph A. Markus from the Law Office of Stein and Markus, to 

represent Binns.4

On February 11, 2021, defense counsel filed a “Request for 

Relief,” which stated that Binns had made a prima facie showing 

of entitlement to relief and asked the court to hold that the 

prosecution could not “prove beyond a reasonable doubt a valid 

legal theory to sustain conviction. Petitioner neither acted with 

express nor implied malice and the only legal conclusion that can 

be made is that his conviction is based solely on the natural and 

probable consequences theory.” As for the remedy, defense 

counsel asked the court “to find that [Binns] was not the actual 

killer, there was no intent to kill in this matter by [Binns] either 

as an aider and abettor or an actual participant.” Counsel did not 

mention victim restitution in the petition for relief. 

On March 16, 2021, the court found Binns had made a 

prima facie case for relief, issued an order to show cause, and set 

the matter for an evidentiary hearing. The prosecution filed an 

opposition, and defense counsel filed a reply. In his reply, defense 

counsel did not mention victim restitution; instead, counsel 

reiterated that the court should “find that [Binns] was not the 

4 It appears that the court appointed Markus as Binns’s attorney in 

early December 2020. On March 16, 2021, the court denied as untimely 

Mohammad Aly’s substitution request.
10

actual killer, there was no intent to kill in this matter by [Binns] 

either as an aider and abettor or an actual participant.”

On April 21, 2021, the court held an evidentiary hearing at 

which Binns was not present but was represented by counsel, 

Joseph Markus and Andrew Stein. The court heard arguments

and ruled that there was insufficient evidence to “support a 

theory of liability of murder under an implied malice theory 

beyond a reasonable doubt,” and, therefore, Binns was entitled to 

relief under section 1170.95.

The court then redesignated Binns’s conviction as the 

target offense of assault with a firearm (§ 245, subd. (a)(2)) and 

resentenced him to the upper term of four years: 

Having made such a finding that the petitioner is 

therefore entitled to relief ... to a charge of 

murder and the target offense was not charged, 

the petitioner’s conviction shall be redesignated 

as the target offense or underlying felony for 

resentencing purposes.

For purposes of the natural and probable 

consequences theory, the target offense—or the 

target crime—that was not charged was a 

violation of Penal Code section 245(a)(2), or 

assault with a deadly weapon, which carries a 

sentencing term of two, three, and four years.

[¶] ... [¶]

Accordingly, the defendant’s murder conviction 

shall be redesignated as the target offense of 

245(a)(2), and he shall receive a sentence in the 

high term of four years, which shall amount to 
11

credit time served. All other sentencing terms 

shall remain. 

(Italics added.) The court also imposed a three-year parole term.

On April 29, 2021, the sentencing minute order was amended 

nunc pro tunc by deleting the reference to assault with a deadly 

weapon and replacing it with assault with a firearm. 

Defense counsel did not mention victim restitution during 

the April 21, 2021 hearing. Counsel also did not ask for a 

continuance of the proceedings, or for clarification of the court’s 

order or the sentencing terms. Instead, defense counsel asked 

whether they “need to give the clerk the inmate’s CDC number 

and the location of the prison so he can send the paperwork?” In 

response to that question the clerk and the court stated they had 

Binns’s CDC number. The prosecutor then interjected: “Excuse 

me, Your Honor. One moment. The victim’s mother is present. I 

didn’t realize we were going directly into a sentencing hearing. 

May I check to see—.” An off-the-record discussion was held, after 

which the proceedings concluded. 

In response to letters sent by appellate counsel, in 

September 2021 the court amended the April 21, 2021 sentencing 

minute order nunc pro tunc by, among other things, reducing the 

parole term to two years. The amended abstract of judgment, 

filed on September 9, 2021, indicates that Binns was convicted on 

April 21, 2021 of assault with a firearm and was ordered to pay 

the previously ordered restitution fine in the amount of $100 “if 

not yet satisfied.” The April 21, 2021 sentencing minute order 

and abstract of judgment, as well as the subsequent minute 
12

orders and the September 9, 2021 amended abstract of judgment, 

do not mention victim restitution.5

Binns filed a timely notice of appeal from the April 21, 2021 

judgment, and we appointed counsel to represent him.

On October 25, 2021, appointed counsel filed a brief in 

which she raised no issues and asked us to review the record 

independently under People v. Wende (1979) 25 Cal.3d 436. Binns 

filed a supplemental brief raising several claims, including a 

challenge to the victim restitution award. After reviewing the 

record, we requested supplemental briefing from the parties 

concerning whether we should modify the sentence to deem 

Binns’s restitution fine satisfied and whether we should strike 

the victim restitution award. 

DISCUSSION

1. The Law of Murder and Senate Bill No. 1437

Murder is “the unlawful killing of a human being ... with 

malice aforethought.” (§ 187, subd. (a).) Malice may be express or 

implied. (§ 188.) Express malice is the intent to kill, whereas 

implied malice exists “where the defendant ... acted with 

conscious disregard that the natural and probable consequences 

of [his or her] act or actions were dangerous to human life. 

[Citation.]” (People v. Gonzalez (2018) 5 Cal.5th 186, 197.) 

Although malice is an element of murder, when Binns was 

convicted, the law allowed defendants who did not act with 

malice to be liable for murder under certain circumstances.

5 They also do not mention the $70 assessments that were imposed on 

July 19, 2013.
13

“First, under the natural and probable consequence[s] 

doctrine, a defendant who aids and abets a confederate in

committing a crime (the target offense) is liable for other crimes

committed by the confederate if those further crimes were

natural and probable consequences of the target offense.

[Citation.] Thus, under prior law, if the direct perpetrator of the

target offense committed murder, and the murder was a natural

and probable consequence of the target offense, then an aider and

abettor of the target offense would be liable for the murder even

if the aider and abettor did not act with malice. (People v. Gentile

(2020) 10 Cal.5th 830, 845 [‘until recently, when a person aided

and abetted a nonhomicide crime that then resulted in a murder,

the natural and probable consequences doctrine allowed him or

her to be convicted of murder without personally possessing

malice aforethought’].)” (People v. Eynon (2021) 68 Cal.App.5th

967, 973 (Eynon).)

Second, under prior California law, every accomplice to an 

enumerated felony could be convicted of first degree murder if a 

death occurred during the commission of that felony—regardless 

of whether the accused killed or intended to kill. (See People v. 

Dillon (1983) 34 Cal.3d 441, 462–472.) 

Senate Bill No. 1437 (S.B. 1437) was enacted to “amend the

felony murder rule and the natural and probable consequences

doctrine, as it relates to murder, to ensure that murder liability is

not imposed on a person who is not the actual killer, did not act

with the intent to kill, or was not a major participant in the

underlying felony who acted with reckless indifference to human

life.” (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Lewis (2021)

11 Cal.5th 952, 959 (Lewis).) It accomplished this “ ‘by amending

sections 188 and 189 to restrict the scope of first degree felony
14

murder and to eliminate murder liability based on the natural

and probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2–

3.)’ [Citation.]

“Amended section 188 provides that, except for first degree 

felony murder, ‘in order to be convicted of murder, a principal in

a crime shall act with malice aforethought. Malice shall not be

imputed to a person based solely on his or her participation in a

crime.’ (§ 188, subd. (a)(3).) The requirement that the principal

act with malice eliminates all murder liability under the natural

and probable consequences doctrine. [Citation.]

“Amended section 189 limits the first degree felony-murder 

rule by imposing new requirements for its application. The

statute provides that, unless the victim is a peace officer killed in

the line of duty, a defendant cannot be liable for first degree

felony murder unless the defendant was the actual killer, acted

with intent to kill, or was a major participant in the underlying

felony and acted with reckless indifference to human life.

[Citations.]” (Eynon, supra, 68 Cal.App.5th at pp. 973–974.)

2. Section 1170.95

In addition to changing the law of murder prospectively, 

S.B. 1437 gave people who had been convicted under one of the

now-invalid theories of murder the opportunity to petition for

resentencing under newly-enacted section 1170.95. (Stats. 2018,

ch. 1015, § 4.) As enacted, section 1170.95 applied only to people 

convicted of murder, but on October 5, 2021, the Governor signed 

S.B. 775, which expanded eligibility under the statute to people

who had been charged with either murder or attempted murder 

but convicted of manslaughter. (Stats. 2021, ch. 551, § 2.)

Section 1170.95, subdivision (a)(3), describes who may 

petition for resentencing under the statute. Subdivision (b)
15

explains what information the petition must contain, where the

petitioner must file it, who the petitioner must serve, and what

the court should do if it’s incomplete. Subdivision (c) describes the 

process the court uses to determine whether the petitioner is 

entitled to an evidentiary hearing: Appoint counsel, if requested; 

wait for the prosecutor’s required response and the petitioner’s 

optional reply; if the petitioner makes a prima facie showing that 

he or she is entitled to relief, issue an order to show cause. 

(Lewis, supra, 11 Cal.5th at p. 966.) If the petitioner establishes a 

prima facie entitlement to relief, the court must issue an order to 

show cause. Subdivisions (d)–(g) describe the procedures for 

holding an evidentiary hearing, the type of evidence that may be 

admitted, the burden of proof, and the requirements for 

resentencing an eligible petitioner.

3. Binns’s Challenges to the Victim Restitution Award

After Binns’s release from prison, the Franchise Tax Board 

mailed him a debt-collection notice for $11,256.23. The notice 

lists the Department of Corrections and Rehabilitation as the 

referring office and provides the superior court case number in 

this matter. The referred debt appears to be based on the $280 

restitution fine and $8,853 in victim restitution (plus accrued 

interest) imposed at Binns’s 2013 sentencing hearing.

6

Binns asks us to strike the victim restitution award 

because an order requiring him to reimburse the victim for losses 

stemming from his murder conviction, which no longer stands, is 

an unauthorized sentence. Binns also contends that his conduct 

6 As noted, Binns was ordered to pay $1,353 to the victim’s mother and 

$7,500 to the State Victim Compensation Board.
16

underlying the redesignated assault conviction was not a 

substantial and proximate cause of the claimed financial losses. 

Alternatively, he argues that the case must be remanded for a 

restitution hearing at which the prosecution bears the burden to 

prove that his conduct was a substantial and proximate cause of 

the claimed financial damages. For their part, the People contend 

Binns forfeited any challenge to the victim restitution award and, 

in any event, the award is legally authorized because Binns’s 

criminal conduct led to the foreseeable fatal shooting of the 

victim.

Factual issues may be subject to the waiver or forfeiture

rule, but an objection may be raised for the first time on appeal

where it concerns an unauthorized sentence—i.e., one that could

not lawfully be imposed under any circumstance in the particular

case. (See People v. Percelle (2005) 126 Cal.App.4th 164, 179.)

That is, whether the court imposed an order in excess of its 

statutory authority is a purely legal issue that is not subject to 

the waiver or forfeiture rule. (Ibid.)

As a preliminary matter, we reject Binns’s contention that

the victim restitution award is unauthorized because it was

based on his vacated murder conviction. Section 1170.95, 

subdivision (d)(1), requires the court, upon finding a defendant 

eligible for resentencing, “to vacate the murder ... conviction and 

to recall the sentence and resentence the petitioner on any 

remaining counts in the same manner as if the petitioner had not 

previously been sentenced, provided the new sentence, if any, is 

not greater than the initial sentence.” (Italics added.) This is 

consistent with the full resentencing rule, in which “ ‘ “a full 

resentencing as to all counts is appropriate, so the trial court can 

exercise its sentencing discretion in light of changed 
17

circumstances.” ’ [Citations.]” (People v. Ramirez (2021) 71 

Cal.App.5th 970, 999–1000.) Here, the court redesignated Binns’s 

murder conviction to assault with a firearm, imposed sentence for 

that conviction, and then stated “all other sentencing terms shall 

remain.” As a prior sentencing term imposed in 2013, the victim 

restitution award was, therefore, reimposed in connection with 

the assault with a firearm conviction.

Binns argues he is not responsible for the victim’s losses

because his criminal conduct, driving the shooters to the park, 

was “not a necessary antecedent to the shooting,” “and waiting in 

the car was not sufficient by itself to bring about the shooting and 

the victim’s death.” Essentially, Binns suggests that the victim 

restitution award was not authorized by section 1202.4, 

subdivision (f) because Shakir and Allen were responsible for 

shooting Watson.

But the sentencing court’s statutory authority was not so 

limited. Section 1202.4, subdivision (f) provides for a direct 

restitution order “in every case in which a victim has suffered 

economic loss as a result of the defendant’s conduct.” The order is 

to be for an amount “sufficient to fully reimburse the victim or 

victims for every determined economic loss incurred as the result 

of the defendant’s criminal conduct.” (Id., subd. (f)(3).) “The 

statute does not distinguish between economic losses caused by 

physical injuries and those caused by psychological trauma.” 

(People v. Brasure (2008) 42 Cal.4th 1037, 1075.) And a defendant 

may be criminally liable for a result directly caused by his acts 

even if there is another contributing cause. (People v.

Foalima (2015) 239 Cal.App.4th 1376, 1397.)

Binns also argues that the victim restitution award must

be stricken because the facts show that his conduct was not a 
18

substantial and proximate cause of the claimed financial losses. 

“But by his failure to object, [Binns] forfeited any claim that the

order was merely unwarranted by the evidence, as distinct from

being unauthorized by statute.” (People v. Brasure, supra, 42 

Cal.4th at p. 1075; see also People v. Mays (2017) 15 Cal.App.5th 

1232, 1237 [defendant wishing to argue on appeal that there is no 

factual basis for a restitution order must object on that ground in 

the trial court to preserve the issue for appeal].)

In sum, the order for victim restitution for the assault with 

a firearm conviction was within the sentencing court’s statutory 

authority, and Binns neither raised an objection to the amount of 

the award nor requested a hearing to determine if his conduct 

was a substantial and proximate cause of the claimed financial 

losses. Because the sentencing minute order and amended 

abstract of judgment do not, however, reflect the sentencing 

proceedings they purport to memorialize, we remand for 

correction of the order and amended abstract of judgment. (See

People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)

4. Binns’s excess custody credits satisfy the restitution 

fine, if any.

According to the resentencing minute order, “[t]he 

restitution fine, as originally ordered pursuant to Government 

Code section 13967(a), in the amount of $100 remains as 

originally ordered; only due if not yet satisfied.” But Government 

Code section 13967, subdivision (a), was repealed in 2003, a 

decade before Binns was originally sentenced. (Stats. 2003, 

ch. 230, § 2.) And according to the sentencing minute order and 

abstract of judgment from 2013, the court actually imposed $280 

under section 1202.4, subdivision (b). In any event, the parties 
19

agree, as do we, that the restitution fine—whether it was $280 or 

$100—has been satisfied by Binns’s excess custody credits.

“The United States Constitution and the California 

Constitution proscribe ex post facto laws. [Citations.] Under both 

Constitutions, ‘[l]egislatures may not retroactively alter the 

definition of crimes or increase the punishment for criminal acts.’ 

[Citations.]” (People v. Valenti (2016) 243 Cal.App.4th 1140, 

1173.) Because fines are punishment, ex post facto principles 

apply to them. (People v. Alford (2007) 42 Cal.4th 749, 757–758.) 

Therefore, this case is governed by the version of 

section 2900.5 in effect in 2010, when Binns committed the 

assault. (See People v. Morris (2015) 242 Cal.App.4th 94, 101–102 

(Morris) [since restitution fine was punishment, ex post facto 

clause applied].) At the time, that statute stated, in pertinent 

part:

In all felony ... convictions, ... when the 

defendant has been in custody, ... all days of 

custody[,] ... including days credited to the period 

of confinement pursuant to Section 4019, shall be 

credited upon his or her term of imprisonment, or 

credited to any fine on a proportional basis, 

including, but not limited to, base fines and

restitution fines, which may be imposed, at the 

rate of not less than thirty dollars ($30) per day, 

or more ... .

(§ 2900.5, subd. (a), as amended by Stats. 1996, ch. 1077, § 28, 

italics added.) Although the Legislature later amended the 

provision to exempt restitution fines from those to which excess 
20

custody credits may be applied,7 under the plain language of the 

statute in effect in 2010, the court was required to apply Binns’s 

excess custody credits to reduce his restitution fine at a rate of at 

least $30 per day of excess custody credit. (People v. Lamoureux

(2020) 57 Cal.App.5th 136, 152; see also Morris, at pp. 101–103 

[deeming defendant’s restitution fine satisfied under version of 

section 2900.5 in effect at the time of his offense].)

Binns was arrested on August 2, 2011, and resentenced on 

April 21, 2021.8 Thus, Binns was incarcerated for 3,551 days. 

Subtracting four years (1,460 days) from that total leaves excess 

actual custody credit of 2,091 days. At a minimum rate of $30 per 

day, Binns was entitled to offset his fines by $62,730. Since his 

restitution fine was $280 or $100, Binns is entitled to a total 

offset of the fine. We therefore modify the judgment to deem the 

restitution fine satisfied. (See People v. Lamoureux, supra, 57 

Cal.App.5th at p. 154.)

7 (Stats. 2013, ch. 59, § 7; Morris, supra, 242 Cal.App.4th at p. 100.)

8 Binns’s unopposed request for judicial notice of the opinion and 

appellate record in case No. B250120 is granted. (Evid. Code, § 451, 

subd. (a).)
21

DISPOSITION

The judgment is modified to deem the restitution fine

satisfied. The matter is remanded to the trial court to allow it to 

correct the April 21, 2021 minute order and the September 9, 

2021 amended abstract of judgment to reflect its oral 

pronouncement of sentence. The court shall prepare a new 

amended abstract of judgment reflecting the judgment as 

modified and corrected, and send a certified copy of the abstract 

of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.