Opinion
B299577
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE HOWZE, Defendant and Appellant.
Maggie M. Shrout, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo, Acting Supervising Deputy Attorney General, Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA037768) APPEAL from an order of the Superior Court of Los Angeles County, Laura Laesecke, Judge. Dismissed. Maggie M. Shrout, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo, Acting Supervising Deputy Attorney General, Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.
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Defendant and appellant Johnny Lee Howze appeals from the trial court's order denying his motion to modify a $10,000 restitution fine imposed pursuant to Penal Code sections 1202.4 and 1202.45. Howze contends that the trial court's imposition of the restitution fine without holding an ability to pay hearing violates his constitutional right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The People argue that the appeal must be dismissed because the trial court lacked jurisdiction to modify the judgment. We agree, and dismiss.
All further statutory references are to the Penal Code unless otherwise indicated.
PROCEDURAL HISTORY
Howze requested that we take judicial notice of our prior unpublished opinion in People v. Howze (Jan. 8, 2001, B134049). We grant the motion for judicial notice. The details of Howze's convictions, sentencing, and appeal are taken from our prior opinion.
In 1999, the jury found Howze guilty of two counts of first degree residential burglary (§ 459 [counts 1 and 2]) and one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a) [count 3]). The jury found true the allegations that Howze suffered four prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), and served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Howze to 90 years to life in state prison. The court also ordered Howze to pay a $10,000 restitution fine pursuant to section 1202.4.
Howze appealed. He did not challenge the restitution fine or allege that he was unable to pay any of the fines or fees imposed. We ordered the judgment modified to strike, rather than stay, two enhancements imposed for prior prison terms, and to reflect that Howze was entitled to two additional days of presentence conduct credit, but otherwise affirmed the judgment.
In 2019, the Court of Appeal, Second Appellate District, Division Seven, issued its opinion in Dueñas, supra, 30 Cal.App.5th 1157, which held that despite section 1202.4's requirement that the trial court impose a restitution fine, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine." (Id. at p. 1172.)
Section 1202.4, subdivision (b) provides, "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."
On June 17, 2019, Howze moved to modify the trial court's restitution order pursuant to Dueñas. The trial court denied the motion on June 24, 2019, stating:
"The motion is denied. Penal Code section 1202.4 states that a defendant convicted of a felony must be ordered to pay a restitution fine of no less than $300 and no more than $10,000, unless the court finds extraordinary and compelling reasons not to impose the fine. 'A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine.' PC 1202.4(c). In setting the amount of the fine above the minimum, the court can consider the gravity of the offense, the number of victims involved in the crime(s) and the loss to those victims. 'Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.' PC 1202.4(d).
"The court finds that, even in light of the recent case of People v. Dueñas (2019) 30 Cal.App.5th 1157, the amount of the fine is appropriate and the defendant has the ability to pay. The defendant committed two violent crimes, each with a different victim, and is serving a life sentence. The concerns expressed by the court in Dueñas, including 'loss of employment or shelter, compounding interest, further legal action and ever-expanding financial burden' do not apply to an inmate serving life. (Dueñas, supra, p. [1163], citing Rivera v. Orange County Probation Dept. (2016) 832 F.3d 1103, 1112, fn. 7; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)"
Howze timely appealed.
DISCUSSION
Howze argues that, contrary to the People's assertions, the appeal should not be dismissed because the trial court had jurisdiction to rule on the motion pursuant to section 1237.2. The statute 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." (Italics added.)
Howze asserts that the phrase "any error in the imposition . . . of . . . fees" in the second sentence of the statute includes errors relating to the imposition of a restitution fine without an ability to pay hearing. He argues that, because he requested that the trial court correct an error in the imposition of fees, the court had jurisdiction to grant his request, despite the fact that his appeal was final.
Whether section 1237.2 grants the trial court jurisdiction to grant a defendant's request for an ability to pay hearing after an appeal has become final is a legal question that we review de novo. (People v. Tran (2015) 61 Cal.4th 1160, 1166.)
Our colleagues in the Division One of the Court of Appeal, Second Appellate District, recently addressed the same argument in People v. Torres (2020) 44 Cal.App.5th 1081, 1083 (Torres). In rejecting the argument, the Torres court looked first to the language of section 1237.2, and concluded that the statute "generally precludes an appeal from a judgment of conviction when the appellant's only issue on appeal is the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs, unless the appellant had first raised the issue in the trial court at the time of sentencing or, if the appellant did not discover the error until after sentencing, the appellant 'first makes a motion for correction in the trial court.' (§ 1237.2.)" (Torres, supra, 44 Cal.App.5th at p. 1086.) However, the second sentence of the statute created an exception to the rule, which allows the trial court to retain 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.' (§ 1237.2.)" (Ibid.)
The Torres court's review of the legislative history revealed that the second sentence was proposed by the California Public Defenders Association to address its concern that "a defendant who belatedly discovers an erroneous fine could be left without a remedy if he or she is precluded under the proposed law from challenging the fine on appeal (for failing to raise it in the trial court) and precluded from correcting the error in the trial court because that court had lost jurisdiction over the case." (Torres, supra, 44 Cal.App.5th at p. 1087.) The Torres court concluded: "The legislative history thus reveals that a primary purpose of section 1237.2 is to encourage and facilitate the prompt and efficient resolution in the trial court of challenges to fines, assessments, and fees that would otherwise be asserted on direct appeal; and the statute's second sentence furthers that purpose by giving trial courts the power to resolve such challenges notwithstanding the pending appeal. That purpose is not served by extending the trial court's jurisdiction to motions made after the conclusion of the direct appeal." (Ibid.)
We agree with the analysis in Torres, and hold that section 1237.2 does not confer jurisdiction upon the trial court where, as here, an appeal is final.
Howze recognizes that Torres is not distinguishable from his case, but urges us to reject its holding. --------
DISPOSITION
The appeal is dismissed.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.