Opinion
A156933
05-27-2020
THE PEOPLE, Plaintiff and Respondent, v. AARON GABRIEL BLACK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUK-CRCR-16-86641, SCUK-CRCR-18-95243, SCUK-CRCR-18-96639)
In this single-issue appeal, defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to argue his trial counsel's failure to object to the imposition of various fees and fines ancillary to a conviction without the trial court determining his ability to pay constituted ineffective assistance of counsel under the United States and California Constitutions. We conclude defendant's appeal is not cognizable under Penal Code section 1237.2 (section 1237.2) and therefore dismiss it.
I. BACKGROUND
Because the underlying facts and procedural history are not relevant to the imposition of fees and fines issue on appeal, we do not recite them. Suffice it to say that pursuant to a negotiated plea, the court sentenced defendant to a total term of four years in state prison: the stipulated aggravated term of four years for dissuading a witness in count five of case No. SCUK-CRCR-18-95243 to run concurrently to two years for failure to appear in case No. SCUK-CRCR-18-96639. In a misdemeanor case, No. SCUK-CRCR-16-86641, the court terminated probation unsuccessfully and imposed a 30-day jail sentence with 15 days' credit. In addition to the prison sentence, the court ordered defendant to pay (1) in case No. SCUK-CRCR-18-96639, a $300 minimum restitution fund fine, a $40 security fee, and a $30 conviction fee; and (2) in case No. SCUK-CRCR-18-95243, minimum restitution fines, an $80 security fee, and a $60 conviction fee. The court declined to impose a presentence investigation fee and rejected a recommendation for higher restitution fines.
II. DISCUSSION
As defendant characterizes it, he appeals the ordering of fees and restitution fines at sentencing because his counsel's failure to request a hearing on his ability to pay as required by Dueñas constituted ineffective assistance of counsel.
There is no dispute defendant did not object to the imposition of the fees and fines he now challenges at the time of sentencing. Nor does he claim he returned to the trial court at any time after sentencing to request a correction or adjustment of the fines or fees as permitted by section 1237.2.
Section 1237.2 provides: "An appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs 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 sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing. The trial court retains jurisdiction after the notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant's request for correction. This section only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal."
As explained in People v. Hall (2019) 39 Cal.App.5th 502 (Hall), "section 1237.2 broadly applies to an error in the imposition or calculation of fees. The plain language of the statute 'does not limit [its] reach only to situations where the fee simply did not apply at all or was a result of mathematical error.' " (Id. at p. 504, quoting People v. Alexander (2016) 6 Cal.App.5th 798, 801.) Rather, it applies "any time a defendant claims the trial court wrongly imposed fines, penalty assessments, surcharges, fees, or costs without having first presented the claim in the trial court." (Hall, at p. 504; compare People v. Jenkins (2019) 40 Cal.App.5th 30, 38 [a defendant need not first seek relief in the trial court "if issues other than the imposition or calculation of such fines, assessments, and fees are being appealed"].)
Defendant advances an argument that "Hall's broad reading of [section 1237.2] is inconsistent with part of its legislative history," but we are not persuaded. (Italics added.) Defendant relies on a statement by the author of Assembly Bill No. 249 (Reg. Sess. 2015-2016) noting that appellate courts are burdened by having to correct errors in the calculation of fines and fees by trial courts to argue that the legislative purpose of section 1237.2 was limited to correction of "common minor errors primarily in the calculation of fines and fees." But the author's statement does not suggest section 1237.2 is limited to calculation errors. (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 249 (2015-2016 Reg. Sess.) June 9, 2015, p. 3.) Further, the same Senate Committee on Public Safety analysis relied upon by defendant also states simply: "This bill requires that criminal defendants resolve issues regarding fines, fees, and assessments in the trial court before raising them in the Court of Appeal." (Ibid.)
Indeed, as defendant concedes, "an analysis prepared for the Assembly Committee [on] Public Safety on the bill does not support [defendant's] interpretation." That analysis stated section 1237.2 "is broader than Penal Code section 1237.1 in that it directs an appellant not only to seek correction of miscalculation of fines and fees, but also to raise issues regarding their imposition, which may strictly be a legal issue." (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 249 (2015-2016 Reg. Sess.) Mar. 17, 2015, p. 3.) This broader purpose is reflected in the express language of the statute, which requires a defendant to raise any "error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs" in the trial court before taking an appeal. (§ 1237.2, italics added.)
Penal Code section 1237.1 requires a defendant to present a claim regarding error in calculation of presentence custody credits to the trial court before taking an appeal.
That defendant attempts to pursue a claim that the trial court improperly imposed fees and fines by alleging ineffective assistance of trial counsel does not change the nature of the claim itself. At bottom, underlying defendant's ineffective assistance of counsel claim is "error in the imposition . . . of fines [and] fees . . . ." (§ 1237.2.) By the express terms of the statute, defendant was required to first seek relief in the trial court if he wanted to pursue this single issue on appeal. And even assuming arguendo that Dueñas applies, and the trial court erred in not holding a hearing to determine defendant's ability to pay the fines and fees, he is not without a remedy; the remedy under section 1237.2 is for defendant to make a motion to correct that error in the trial court. Because defendant has failed to first seek relief in the trial court, as required by the express terms of the statute, we must dismiss the appeal. The trial court, however, retains jurisdiction to entertain his motion. (Hall, supra, 39 Cal.App.5th at p. 504.) If, after bringing such a motion, he wishes to argue the trial court's ruling fails to satisfy his constitutional rights, he may file a subsequent appeal.
III. DISPOSITION
The appeal is dismissed without prejudice to defendant's ability to bring a motion in the trial court under section 1237.2.
We express no opinion regarding whether defendant is entitled to have a hearing to determine his ability to pay under Dueñas. --------
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Banke, J. /s/_________
Sanchez, J.