Opinion
H046611
11-26-2019
THE PEOPLE, Plaintiff and Respondent, v. CADE LAWRENCE SUBLET, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1895121)
Defendant Cade Lawrence Sublet pleaded no contest to purchasing a firearm as a felon; possession of personal identifying information with intent to defraud; and two counts of second degree burglary. The trial court sentenced him to a total term of one year four months, and the court imposed various fines and fees.
On appeal, Sublet contends the trial court erred by imposing the fines and fees without holding a hearing on his ability to pay them. (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 also contends that, in the event we conclude this claim was forfeited by trial counsel's failure to object, then counsel provided ineffective assistance.
No such appeal may be taken because Sublet 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. PROCEDURAL BACKGROUND
The prosecution charged Sublet with seven counts: Count 1—purchasing a firearm as a felon (§ 29800, subd. (a)(1)); count 2—possession of a sap (§ 22210); counts 3 and 4—second degree burglary (§ 460, subd. (b)); count 5—possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)); count 6—acquiring or retaining personal identifying information with intent to defraud (§ 530.5, subd. (c)(1)); and count 7—falsely identifying himself to a police officer (§ 148.9, subd. (a)). The complaint further alleged Sublet had served a prior prison term. (§ 667.5, subd. (b).)
The record does not contain any statement of the facts of the offenses. In any event, the facts are immaterial to the claim raised on appeal.
Sublet pleaded no contest to counts 1, 3, 4, and 6 in exchange for a term of one year four months and dismissal of the remaining counts. He also admitted the prior prison term. The trial court sentenced him in accord with the agreement and imposed a restitution fine of $300 under section 1202.4, subdivision (b), among other fines and fees. Sublet did not object to any of the fines or fees.
II. DISCUSSION
Sublet contends the trial court erred by imposing fines and fees 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 Sublet 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.
We requested briefing from the parties on whether Sublet's appeal must be dismissed for failure to make a motion for correction in the trial court under section 1237.2 and Hall, supra. 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." "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." (Hall, supra, 39 Cal.App.5th at p. 504.)
The Attorney General contends Sublet's failure to make a motion in the trial court under section 1237.2 requires dismissal. Sublet argues that Hall does not require dismissal here because the trial court in Hall had stayed the fines and fees, such that no due process violation had occurred. Sublet argues that in his case, the fines and fees have not been stayed, and that his claim is cognizable in this court because he asserts a due process violation.
We are not persuaded that Hall is distinguishable. 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.) The trial court made no such determination here. 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, assuming arguendo that Sublet has suffered the violation of any constitutional right, he is not without remedy; the remedy under section 1273.2 is for Sublet 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.) If, after bringing such a motion, he wishes to argue that the trial court's ruling fails to satisfy his constitutional rights, he may file a subsequent appeal.
Sublet does not argue that his claim of ineffective assistance of counsel constitutes a separate claim on appeal. In any event, we would conclude that the substance of that claim is sufficiently identical to the merits of the Dueñas claim such that this claim is the "sole issue on appeal" for the purposes of section 1237.2. --------
III. DISPOSITION
The appeal is dismissed without prejudice to Sublet'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.