Opinion
D074854
10-29-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD TATO, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS302644) APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Dismissed. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.
In this single-issue appeal, defendant Richard Tato relies on the recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to argue that the trial court erred in imposing certain fines and fees ancillary to his criminal conviction without determining he had the ability to pay them. But Tato never raised his ability-to-pay objection in the trial court, either at the time of sentencing or later, as required by Penal Code section 1237.2. Accordingly, we have no alternative but to dismiss the appeal.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Tato pleaded guilty to a single count of evading a peace officer (§ 2800.2, subd. (a)) and admitted one strike prior (§§ 667, subds. (b)-(i), 668, 1170.12). The trial court imposed a stipulated 32-month prison sentence. It also ordered Tato to pay: (1) an $800 restitution fine (§ 1202.4); (2) a $40 court operations assessment (§ 1465.8); (3) a $154 criminal justice administrative fee (Gov. Code, § 29550.1); and (4) a $30 criminal conviction assessment (Gov. Code, § 70373).
DISCUSSION
As Tato characterizes it, he "appeals the ordering of fees and restitution fines at sentencing absent a determination of his ability to pay." Section 1237.2 provides that "[a]n 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."
There is no dispute that Tato did not object to the imposition of the restitution fine or the other fees he now challenges at the time of sentencing. Nor did he return to the trial court at any time after sentencing to request a correction or adjustment of the fines or fees, as is permitted by section 1237.2. By the express terms of the statute, Tato's appeal "may not be taken" and we are required to dismiss his appeal.
Tato argues section 1237.2 does not apply in this situation for several reasons. He maintains that the erroneous imposition or calculation of fines and fees is not "the sole issue on appeal" because he also contends his lawyer rendered ineffective assistance of counsel with respect to those fines and fees when he failed to object to their imposition at the time of sentencing. He also suggests that a constitutional Dueñas claim is more than merely a challenge to the allegedly erroneous "imposition or calculation" of fines and fees.
Tato complains that defense counsel may not know until the opening brief is filed whether a challenge to fines and fees will be "the sole issue on appeal." But in advance of filing the opening brief, nothing prevents a defendant from seeking relief in the superior court with regard to fines and fees because that court "retains jurisdiction after a notice of appeal has been filed to correct any [such] error . . . ." (§ 1237.2.) --------
Our colleagues in Division Eight of the Second Appellate District recently addressed a similar set of issues in People v. Hall (2019) 39 Cal.App.5th 502 (Hall), and dismissed a comparable single-issue Dueñas appeal. As Hall notes, "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.' " (Id. at p. 504, quoting People v. Alexander (2016) 6 Cal.App.5th 798, 801.) Rather, it 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 . . . ." (Hall, at p. 504; compare People v. Jenkins (2019) 40 Cal.App.5th 30, 38 [a defendant need not first seek relief in the trial court "if issues other than the imposition or calculation of such fines, assessments, and fees are being appealed"].)
Tato's Dueñas argument, like the similar Dueñas argument of the defendant in Hall, "claims the trial court wrongly imposed fines, penalty assessments, surcharges, fees, or costs." (Hall, supra, 39 Cal.App.5th at p. 504.) The constitutional basis for the claim, or the fact that he defends his right to pursue it on appeal by alleging ineffective assistance of trial counsel, does not change the nature of the claim itself. It alleges "error in the imposition . . . of fines [and] fees . . . ." (§ 1237.2.) By the express terms of the statute, Tato was required to first seek relief in the trial court if he wanted to pursue this single issue on appeal. Having failed to do so, we must dismiss his appeal.
DISPOSITION
The appeal is dismissed.
DATO, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.