Opinion
C087772
04-21-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL YOUNG, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFECOD20180003333)
Defendant Michael Young pled no contest to assault with a semiautomatic firearm and was sentenced to a stipulated 20-year term. On appeal, he challenges the imposition of certain fines and fees based on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Retaliating for an attack on him and his family, defendant and fellow gang members shot into the victim's house.
The facts are taken from the grand jury transcript, which the parties stipulated to as providing the factual basis for defendant's plea.
In exchange for a stipulated 20-year term and the dismissal of the remaining counts, defendant pled no contest to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and admitted the crime was done to benefit a criminal street gang (§ 186.22, subd. (b)(1)(9-10) and that he used a semiautomatic firearm in its commission (§ 12022.5, subd. (a)). He also admitted serving a prior prison term (§ 667.5, subd (b)) for burglary.
Undesignated statutory references are to the Penal Code.
In taking his plea, the trial court admonished him that a $300 restitution fine, a $30 criminal assessment fee, and a $40 court security fee would be imposed. Asked if he understood, defendant said, "Yes."
Thereafter, the trial court imposed the stipulated 20-year aggregate term, calculated as follows: a nine-year upper term for assault with a semiautomatic firearm, a 10-year firearm use enhancement, and a one-year prior prison term enhancement. A 10-year gang enhancement was imposed and stayed. The court also imposed a $300 restitution fine, a $30 conviction fee, and a $40 court security fee.
On appeal, defendant initially filed a Wende brief, but thereafter we granted his request to file a supplemental brief based on Dueñas. Before making the request for supplemental briefing, appellate counsel sent a letter to the trial court, pursuant to section 1237.2 , asking it to vacate the $30 and $40 fees as well as the $300 fine based on Dueñas, supra, 30 Cal.App.5th 1157. The court returned the request to counsel without ruling on it.
Section 1237.2 provides in pertinent 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. 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.)
As counsel represents, the superior court returned her letter, writing: "The Court is returning the unread Ex parte correspondence received on 3/14/19. It is inappropriate for a judge to read and consider informal letters, or communications, from either party or legal counsel concerning a matter which has been, or may in the future be, before the Court. For that reason, the Court has directed the Clerk of the Court to return to you the enclosed correspondence." However, we note that appellate counsel's March 1, 2019, letter to the trial court includes a proof of service to both the district attorney and the Attorney General's office, and thus it was not, as the trial court seemingly characterized it, an ex parte communication. And an informal request is authorized under section 1237.2. (See fn. 3, ante.)
DISCUSSION
On appeal, defendant challenges the $300 restitution fine, the $30 conviction fee, and the $40 court security fee, arguing imposition thereof must be preceded by an ability to pay finding. He cites in support Dueñas, supra, 30 Cal.App.5th at p. 1172, which held due process requires the trial court to stay execution of restitution fines, as well as court operation and conviction assessments, until it has held a hearing and determined the defendant has the present ability to pay.
The People maintain the contention is forfeited for failure to raise any due process arguments before the trial court or express an inability to pay.
The People also argue the challenge is barred under section 1237.2. (People v. Jenkins (2019) 40 Cal.App.5th 30.) While section 1237.2 provides that an "appeal may not be taken" on the sole issue of fines unless the defendant "first makes a motion for correction in the trial court," (see fn. 3, ante), we note defendant's March 1, 2019, letter was sent to the trial court a little over a month before defendant's opening brief was filed. Thus, the letter complies with section 1237.2, and we address his Dueñas contention on the merits. --------
To defendant's contention, we join the courts concluding Dueñas was wrongly decided and hold that defendant was not entitled to an ability to pay hearing for the conviction and operation assessments. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, review granted, November 26, 2019; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 923-929.)
On that ground, we reject the contention.
DISPOSITION
The judgment is affirmed.
/s/_________
MURRAY, Acting P. J. We concur: /s/_________
DUARTE, J. /s/_________
KRAUSE, J.