Opinion
F083984
10-04-2022
THE PEOPLE, Plaintiff and Respondent, v. HALIKI GREEN, JR., Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Ian Whitney, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. MF012020B. John R. Brownlee, Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Ian Whitney, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Appellant Haliki Green, Jr., was convicted by jury of rape in concert (Pen. Code,§§ 261, subd. (a)(2), 264.1, subd. (a)); rape (§ 261, subd. (a)(2)); sexual penetration by force or violence (§ 289, subd. (a)(1)); assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)); and felony false imprisonment (§§ 236, 237). Multiple special allegations were found true, and Green admitted a prior serious felony conviction (§ 667, subd. (a)) and multiple prior prison terms (§ 667.5, subd. (b)). The trial court imposed an aggregate prison term consisting of two consecutive indeterminate terms of 50 years to life, plus a determinate term of 18 years.
All undefined statutory citations are to the Penal Code unless otherwise indicated.
At sentencing, the trial court imposed various fines, fees, and assessments, including: a $300 restitution fine under section 1202.4, subdivision (b); a parole revocation fine (§ 1202.45) in the same amount, which was suspended; a $200 court operations assessment (§ 1465.8); a $150 criminal conviction assessment (Gov. Code, § 70373), a $600 fine under section 290.3; and a penalty assessment of $1,860. Green appealed.
Among other issues raised on appeal, Green challenged the imposition of the fines, fees, and assessments under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas), based upon his asserted inability to pay. This court affirmed Green's convictions, struck imposition of the prior prison term enhancements (§ 667.5, subd. (b)), but remanded the case back to the lower court for a new sentencing hearing following changes made to the law as a result of recent legislative enactments. In light of this court's conclusion that resentencing was required, this court held Green's Duenas claim was moot. (See People v. Green (June 28, 2021, F078191) [nonpub. opn.] (Green I).)
At the hearing below, the trial court declined to strike two prior serious felony enhancements. Green did not request a hearing on his ability to pay the court imposed fines, fees, and assessments. He filed a timely notice of appeal.
The sole issue raised on appeal pertains to whether the challenged fines, fees, and assessments were erroneously imposed based upon Green's asserted inability to pay. For the reasons set forth below, we shall dismiss the appeal.
STATEMENT OF FACTS
We have omitted the underlying facts of Green's commitment offenses because they are not relevant to the issue he raises on appeal.
DISCUSSION
According to Green, trial counsel's failure to request a hearing on Green's ability to pay the challenged fines, fees, and assessments, constitutes ineffective assistance of counsel. Green further contends the trial court erred by failing to independently ascertain whether Green had the ability to pay the challenged fines, fees, and assessments. Both claims are in effect a claim of error pertaining to "the imposition ... of fines, penalty assessments, surcharges, fees, or costs." (§ 1237.2.)
Green asserts that it was incumbent upon the trial court to independently ascertain whether he had the ability to pay the challenged fines, fees, and assessments. In his appellate brief, he directs this court to portions of our opinion in Green I that he contends, constituted a directive to the lower court to consider his Duenas claim. We do not agree with his characterization of our directive. In Green I, this court held Green's Duenas claim was moot in light of the fact that resentencing was required. Consequently, it was incumbent upon Green to raise the issue below. To date, he has not done so.
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 a 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."
In People v. Hall (2019) 39 Cal.App.5th 502, our colleagues in the Second District Court of Appeal held, "[t]he plain language of [section 1237.2] '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.) Rather, "[s]ection 1237.2 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," including where the claimed error is a failure to hold an ability to pay hearing as required by Duenas. (People v. Hall, at p. 504.)
Although a defendant may raise a claim of error in the imposition or calculation of fines, penalty assessments, fees, or costs for the first time on appeal so long as they raise at least one other issue, Green's sole claim in this appeal is that the fines, fees, and assessments at issue were erroneously imposed. Under the circumstances, Green should have raised this issue in the trial court below. (See People v. Torres (2020) 44 Cal.App.5th 1081, 1086 ["a defendant who discovers an applicable error after he or she files a notice of appeal from the judgment of conviction must (if no other error is asserted on appeal) file a motion to correct the error in the trial court; and, under these circumstances, the trial court shall have the power to rule on such a motion" (italics added)].) The record contains no indication that Green has raised this issue below, either before or after filing his notice of appeal. It follows that section 1237.2 compels dismissal of his appeal. (See People v. Jordan (2018) 21 Cal.App.5th 1136, 1140.)
DISPOSITION
The appeal is dismissed.
[*] Before Poochigian, Acting P. J., Meehan, J. and De Santos, J.