Opinion
H046133
10-08-2019
THE PEOPLE, Plaintiff and Respondent, v. ANGELICA DENISE HATTER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1475520)
I. INTRODUCTION
In 2015, pursuant to a negotiated disposition, defendant Angelica Denise Hatter pleaded no contest to theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years under various terms and conditions, including that she pay various fines, fees, and assessments. In 2018, the trial court revoked defendant's probation and sentenced her to two years in county jail. The trial court ordered that "[t]he abstract of judgment should reflect all of the fines, fees and assessments that were imposed when probation was granted [in] 2015" and also imposed a probation revocation restitution fine that had been "imposed and suspended" in 2015.
Defendant appeals from the trial court's 2018 sentencing order, contending that the court violated the federal and state due process clauses and the Eighth Amendment's prohibition against excessive fines because it imposed the fines, fees, and assessments without first determining her ability to pay. The Attorney General counters that this court lacks jurisdiction to hear the appeal because it is untimely, defendant's claims are barred because she failed to obtain a certificate of probable cause and because she did not first raise the claims in the trial court, and the claims are without merit.
Defendant initially filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, but subsequently moved to withdraw the brief. Accordingly, this court struck defendant's initial opening brief.
For reasons that we will explain, we determine that defendant's appeal is untimely and that Penal Code section 1237.2 bars her claims. We will therefore dismiss the appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Summary
On October 28, 2014, defendant was a passenger in a vehicle stopped by Sunnyvale police. A probation search revealed that the vehicle's ignition switch had been drilled out. Defendant denied stealing the vehicle or knowing that it was stolen.
B. Procedural History
On October 31, 2014, defendant was charged with theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)).
On May 13, 2015, defendant initialed and signed a preprinted form entitled, "Advisement of Rights, Waiver, and Plea Form," and pleaded no contest to the charge. (Some capitalization omitted.) As relevant here, defendant initialed the statement on the form indicating that the parties agreed that in exchange for her guilty or no contest plea, she would be placed on formal probation for three years and sentenced to 120 days in the county jail, which could be served through a weekend work program. The form also stated, "There are no other agreements, and everything above is the total agreement. All other sentencing requirements/terms are left to the discretion of the Court." In addition, defendant initialed three paragraphs on the form pertaining to fines and fees, acknowledging that she will "be ordered to pay fines, fees, and costs" and she did "not contest [her] ability to pay these fines and fees"; if granted probation, "the Court will impose a probation revocation fine, which [she will] have to pay if [her] probation is later revoked"; and "the amount of the restitution fine or general fund fine to be imposed in [her] case is not a part of any plea agreement and the sentencing judge may impose any amount within the minimum and maximum range."
As relevant here, the waiver and plea form specified that defendant may be ordered to pay: "A general fund fine of up to $10,000 (plus over 310% in penalty assessment); a mandatory restitution fine of not less than $300 and not more than $10,000 (plus a 10% county assessment); a probation or parole revocation fine equal to the imposed restitution fine; a court operation assessment of $40 per count; [and] a criminal conviction assessment of $30 per count." The form also stated: "Depending upon my ability to pay, I may also be required to pay a crime prevention fund fine of $10 (plus over 310% in penalty assessment); a $4 emergency medical air transportation penalty for each vehicle code violation; . . . a criminal justice administration fee of up to $259.50; a probation supervision fee (up to $110 a month); and court appointed attorney's fees; and I do not contest my ability to pay these fines and fees."
On June 11, 2015, the trial court suspended imposition of sentence and placed defendant on probation for three years. Among other terms, the court ordered defendant to serve 120 days in county jail and "impose[d] a restitution fine of $330 under section 1202.4 of the Penal Code" and "impose[d] but suspend[ed] the $300 probation revocation restitution fine" under section 1202.44, stating that the probation revocation restitution fine was "only due if [defendant] later violate[s] probation." The court also imposed a $4 emergency medical air transportation fine. The court stated that "[i]n addition to those terms of probation," it was "order[ing] the following fees. These are not conditions of probation but are separately due to the Department of Revenue during the period of probation. The failure to pay these fees would result in civil collection and potential loss of [defendant's] driver's license. That's a $40 security fee, [a] criminal conviction assessment of $30, and a [$129.75] criminal justice administration fee to the City of Sunnyvale . . . . Considering [defendant's] Statement of Assets, [the court] will not impose the supervised own recognizance program fee or a monthly probation supervision fee." Defendant did not object.
In March 2016, the probation department filed a petition for modification of probation, indicating that defendant had failed to serve her county jail sentence, report for scheduled appointments with probation, provide proof of employment or schooling, and make herself available for search. The trial court revoked defendant's probation on March 3, 2016. On May 26, 2016, defendant admitted her probation violation. The court found a violation, reinstated probation, deleted defendant's unserved sentence, and sentenced defendant to six months in county jail.
In January 2018, the probation department filed another petition for modification of probation, stating that defendant had failed to report to scheduled probation appointments, had been arrested for violating Vehicle Code section 10851, subdivision (a) and section 496d, subdivision (a), failed to provide proof of employment or schooling, and failed to make herself available for search. The trial court revoked defendant's probation for a second time and issued a bench warrant for her arrest on January 10, 2018.
The petition initially stated that defendant committed felony violations of Vehicle Code section 10851, subdivision (a) and section 496d, subdivision (a) on August 10, 2017, and that she committed misdemeanor violations of Health and Safety Code section 11364 and section 466 on December 1, 2017. At the parties' request, the trial court dismissed the misdemeanor allegations and modified the petition to state that defendant was arrested for the felonies.
On June 12, 2018, defendant admitted she violated the terms of her probation. The trial court ordered defendant's probation to remain revoked. The court "impose[d] sentence under Penal Code Section 1170(h) as follows: For the felony offense in Count 2 a violation of Vehicle Code Section 10851(a), I order the defendant serve the midterm of two years in the county jail. . . . [¶] . . . [¶] The probation revocation restitution fine that was previously suspended in this matter under 1202.44 is now imposed, that's in the amount of $300. The abstract of judgment should reflect all of the fines, fees and assessments that were imposed when probation was granted on June 11 of 2015."
Defendant filed a notice of appeal on August 2, 2018.
III. DISCUSSION
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant challenges the trial court's imposition of fines, fees, and assessments.
In Dueñas, the defendant at sentencing requested a hearing to determine her ability to pay various amounts that were imposed by the trial court. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) At a subsequent ability-to-pay hearing regarding attorney's fees, the court reviewed the defendant's "uncontested declaration concerning her financial circumstances." (Id. at p. 1163.) The court waived attorney's fees based on the defendant's indigence but rejected her constitutional claim that due process required the court to consider her ability to pay other fines and assessments. (Ibid.) On appeal, the appellate court held that under the California and federal Constitutions, "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Dueñas, supra, at p. 1164; see id. at p. 1168.) The appellate court further held regarding restitution fines that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Id. at p. 1164.)
As we explain below, we conclude that the appeal must be dismissed as untimely and because defendant failed to first raise her claims in the trial court as required under section 1237.2.
A. Untimeliness
Section 1237, subdivision (a) authorizes a defendant's appeal "from a final judgment of conviction." An order granting probation is "deemed to be a final judgment" within the meaning of section 1237 for the purpose of taking an appeal. (§ 1237, subd. (a); see People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796 ["an order granting probation is 'deemed to be a final judgment' for the limited purpose of taking an appeal therefrom"].) A defendant ordinarily must file a notice of appeal from an order granting probation within 60 days after it is made. (See Cal. Rules of Court, rule 8.308(a).)
Section 1237 states: "An appeal may be taken by the defendant from both of the following: [¶] (a) Except as provided in Sections 1237.1, 1237.2, and 1237.5, from a final judgment of conviction. A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial. [¶] (b) From any order made after judgment, affecting the substantial rights of the party."
California Rules of Court, rule 8.308(a) states: "Except as provided in (b) or as otherwise provided by law, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66, no court may extend the time to file a notice of appeal."
"A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' [Citation.] It largely divests the superior court of jurisdiction and vests it in the Court of Appeal. [Citations.] An untimely notice of appeal is 'wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.' [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all." (People v. Mendez (1999) 19 Cal.4th 1084, 1094.)
"In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citations.] Thus, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation. [Citations.]" (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 (Ramirez), italics added [involving a grant of probation where the trial court suspended execution of sentence].)
Defendant asserts that the foregoing rule does not apply because the trial court suspended imposition of sentence when it placed her on probation, rather than suspending execution of sentence. We are not persuaded. We acknowledge that where a court "impose[d] sentence but suspended its execution pending a term of probation," it must impose that exact sentence on revocation of probation. (People v. Howard (1997) 16 Cal.4th 1081, 1088 (Howard).) Accordingly, when a court imposes sentence but suspends its execution at the time probation is granted, a defendant must challenge the sentence in an appeal from the order granting probation. (See Ramirez, supra, 159 Cal.App.4th at p. 1421.) By contrast, where a trial court suspends imposition of sentence before placing a defendant on probation, it has "full sentencing discretion [ up]on revoking probation" (Howard, supra, at p. 1087, fn. omitted), and a defendant need not challenge his or her yet-to-be-imposed sentence on appeal from the order granting probation.
However, even where the imposition of sentence is suspended, the sentencing court does not retain the same flexibility as to fines, fees, and assessments as it does regarding the term of imprisonment. For example, the section 1202.4 restitution fine must be imposed, and "[t]he triggering event for imposition of the restitution fine is . . . conviction." (People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers).) Section 1202.4, subdivision (b) "requires imposition of a restitution fine when a person is convicted of a felony, regardless of whether probation is granted," and "there is no provision for imposing a restitution fine after revocation of probation." (Chambers, supra, at p. 822.)
Section 1202.4, subdivision (b) states: "In 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."
The same holds true regarding the section 1202.44 probation revocation restitution fine, which must also be imposed upon conviction even when probation is granted. Section 1202.44 states that "[i]n every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202 .4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. . . ." (Italics added.)
Likewise, the same reasoning applies to the emergency medical air transportation fine (Gov. Code, § 76000.10), the court operations assessment (§ 1465.8), the court facilities assessment (Gov. Code, § 70373) and the criminal justice administration fee (Gov. Code, § 29550.1), all of which—like the restitution fine—must be imposed on conviction. (See Gov. Code, § 76000.10, subd. (c)(1) ["a penalty of four dollars ($4) shall be imposed upon every conviction for a violation of the Vehicle Code . . . except parking offenses"]; § 1465.8, subd. (a)(1) ["an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense"]; Gov. Code, § 70373, subd. (a)(1) ["an assessment shall be imposed on every conviction for a criminal offense" and "[t]he assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony"]; Gov. Code, § 29550.1 ["A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person . . . . The court shall, as a condition of probation, order the convicted person to reimburse the city, special district, school district, community college district, college, university, or other local arresting agency for the criminal justice administration fee"].)
Thus, when the trial court placed defendant on probation on June 11, 2015, the court was statutorily required to impose or assess all of the fines, fees, and assessments defendant now challenges here. (See §§ 1202.4, 1202.44, 1465.8; Gov. Code, §§ 29550.1, 70373, 76000.10.) Pursuant to section 1237, the June 11, 2015 probation order was a final judgment of conviction for the purposes of taking an appeal, and defendant was required to contest the trial court's imposition of fines, fees, and assessments by appealing from the order of probation imposing them. Because she failed to do so, those impositions became final and cannot now be challenged.
For these reasons, defendant's appeal must be dismissed as untimely.
B. Section 1237.2
We also determine that defendant's claims are barred by section 1237.2, which requires a defendant solely contesting on appeal "the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs" to either "first present[] the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, . . . first make[] a motion for correction in the trial court." (§ 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 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."
Defendant argues that section 1237.2 only applies to contentions of ministerial or clerical errors, and therefore does not bar her constitutional claims. However, "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.' [Citation.] Section 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, and by the terms of the statute, the trial court retains jurisdiction pending appeal to correct any error." (People v. Hall (Aug. 29, 2019, B292294) ___ Cal.App.5th ___ [2019 Cal.App. Lexis 817 at *3]; see also People v. Alexander (2016) 6 Cal.App.5th 798, 801 [holding that section 1237.2's reach was not "only to situations where the fee simply did not apply at all or was a result of mathematical error," and "include[d] an error involving the imposition of a higher than bargained for fee"].)
Defendant did not first raise her claims in the trial court. Thus, her contentions here are barred pursuant to section 1237.2.
IV. DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P. J. /s/_________
MIHARA, J.