DISCUSSION

A. Applicable Law and Standard of Review California law provides that “[i]n 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 on the record.” (§ 1202.4, subd. (b).) “The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense.” (Id., subd. (b)(1).) The minimum fine that may be imposed on a person convicted of a felony is $300; the maximum is $10,000. (Ibid.) A court imposing a restitution fine greater than the minimum “shall consider any relevant factors, including but not limited to, the defendant’s ability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the

3 As the court was aware, Ulmer’s partner had given birth to her and

Ulmer’s child about 10 days before the sentencing hearing.

3 crime. . . . Consideration of a defendant’s inability to pay may include the defendant’s future earning capacity.” (§ 1202.4, subd. (d).) The defendant bears the burden of demonstrating inability to pay. (Ibid.) There is no requirement that the court make express findings as to the factors bearing on the amount of the fine. (Ibid.) We review the imposition of a restitution fine in excess of the minimum for abuse of discretion. (People v. Nelson (2011) 51 Cal.4th 198, 227.) Under this standard, we review the trial court’s findings of fact, express or implied, for substantial evidence, its conclusions of law de novo, and we reverse its application of the law to the facts “only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) B. Analysis In exercising its discretion to impose a restitution fine in excess of the statutory minimum, the trial court was required to consider the factors listed in section 1202.4. (§ 1202.4, subd. (d).) In view of the evidence presented to the trial court in this case concerning Ulmer’s inability to pay, the imposition of a $1,600 fine was an abuse of discretion. In objecting to the amount of the restitution fine, Ulmer’s counsel informed the court that Ulmer was homeless when he entered custody and that he would be trying to raise a family when he was released from prison. The record shows that when Ulmer was remanded into custody in November 2022, he reported that he was homeless and unemployed. According to the probation report, prepared in March 2023, Ulmer reported that he had been doing odd jobs “ ‘under the table’ . . . ‘whenever the opportunity presented itself,’ ” and had been receiving about $280 per month in CalFresh benefits. Ulmer’s last job, which he held between January and March 2021, was as a cook at a restaurant. Between his prior prison terms, he had worked as a

4 cook, a warehouser, and a day laborer. According to Ulmer’s financial data form, submitted to the court with the probation report, Ulmer claimed no assets and reported no debts, and because he had been incarcerated since November 2022, he claimed no regular monthly expenses. In sum, the record does not contain substantial evidence to support the trial court’s implied finding that Ulmer had the ability to pay the restitution fine imposed by the trial court. (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398 [“finding of ability to pay must be supported by substantial evidence”].) Nor does the record contain substantial evidence to support imposing the $1,600 fine as the result of applying the other statutory factors, including because of “the seriousness and gravity of the offense and the circumstances of its commission.” (§ 1202.4, subd. (d).) The Attorney General’s sole argument is that the “restitution fine was justified by the seriousness of appellant’s crimes” and that the trial court judge must have implicitly found that Ulmer’s “violent conduct [that is, head-butting the detaining officer and resisting the officers until he was subdued] along with willful actions that endangered the public [that is, carrying live ammunition as a convicted felon and carrying a knife], was serious enough to warrant a fine that exceeded the minimum amount for restitution fines.” This argument is undercut by the fact that Ulmer’s actions toward the officers were charged as a misdemeanor and by the trial court’s remark at sentencing that it was “looking through the fact pattern, seeing that these are largely status crimes due to your past criminality. Meaning that the ordinary citizen likely wouldn’t be facing any charges on this.”

5 Further, there is no evidence that Ulmer derived “any economic gain . . . as a result of the crime,” or that “any other person suffered losses as a result of the crime,” and there were no victims involved. (§ 1202.4, subd. (d).) In the absence of substantial evidence to support a finding by the trial court that any of the factors listed in section 1202.4 support imposing a restitution fine that exceeds the minimum amount by $1,300, we conclude that the trial court abused its discretion in imposing a $1,600 restitution fine. (See People v. Cluff (2001) 87 Cal.App.4th 991, 998 [trial court abuses its discretion when factual findings underlying its decision are not supported by substantial evidence]).

DISPOSITION

The restitution fine is reversed and the matter is remanded for the sentencing court to impose the minimum restitution fine of $300 under section 1202.4, subdivision (b)(1). In all other respects the judgment is affirmed.

6 _________________________ Miller, J.

WE CONCUR:

_________________________ Stewart, P. J.

_________________________ Richman, J.

A167640, People v. Ulmer

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