Opinion
H046380
11-12-2019
THE PEOPLE, Plaintiff and Respondent, v. SANTOS ANDRES CHAIREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18CR007381)
Defendant Santos Andres Chairez pleaded no contest to bringing a controlled substance into a jail. The trial court sentenced him to a two-year term with one year to be served in county jail. The court also imposed a $600 restitution fine, among other fines and fees.
On appeal, Chairez contends the trial court erred by imposing the restitution fine without holding a hearing on his ability to pay it. (See People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) [imposition of certain fines and fees without determining defendant's ability to pay was a violation of due process].) He raises no other claims.
No such appeal may be taken because Chairez has not moved to correct the error in the trial court as required by Penal Code section 1237.2. (People v. Hall (2019) 39 Cal.App.5th 502 (Hall) [dismissing appeal raising claim under Dueñas based on failure to make a motion in the trial court under section 1237.2].) Accordingly, we will dismiss the appeal without prejudice to his ability to make such a motion.
Subsequent undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The prosecution charged Chairez with bringing a controlled substance into a jail. (§ 4573, subd. (a).) He pleaded no contest to that count in exchange for a term of two years, with one year in county jail and one year of mandatory supervision. The trial court sentenced him in accord with the agreement and imposed a restitution fine of $600 under section 1202.4, subdivision (b), among other fines and fees. Chairez objected to the imposition of the restitution fine based on his inability to pay, but he did not request a hearing on the matter.
This statement of facts is based on the probation report.
In August 2018, Chairez was waiting in the booking area of the Monterey County jail pending assignment to a housing unit. During a strip search, a deputy spotted a plastic bindle protruding from Chairez's anal cavity. The bindle contained methamphetamine having a net weight of four grams.
II. DISCUSSION
Chairez contends the trial court erred by imposing a restitution fine of $600 without first determining whether he had the ability to pay as required by Dueñas, supra, 30 Cal.App.5th 1157. The Attorney General argues that Chairez forfeited the claim by failing to make an offer of proof or request a hearing, and that he waived his right to raise this claim on appeal.
Section 1237.2 provides, in part: "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." (§ 1237.2.) Furthermore, "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." The Attorney General contends we must dismiss this appeal because Chairez failed to make such a motion. We agree.
Although Chairez objected below on the basis of his inability to pay, the right established under Dueñas is the right to a determination—e.g., through a hearing—of whether a defendant has the ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1172.) Here, the court made no such determination following the objection; rather, the court impliedly overruled the objection by imposing the fine. Assuming arguendo that the holding of Dueñas applies, the court's failure to make such a determination constituted "an error in the imposition" of the fine under section 1237.2. Furthermore, that is the sole issue on appeal. Accordingly, the remedy under section 1273.2 is for Chairez to make a motion to correct that error in the trial court, and we must dismiss his appeal unless he has done so. (Hall, supra, 39 Cal.App.5th at p. 504.) The trial court retains jurisdiction to entertain his motion. (Ibid.)
III. DISPOSITION
The appeal is dismissed without prejudice to Chairez's ability bring a motion in the trial court under section 1237.2.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Elia, J.