Opinion
A156551
11-22-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE REFUGIO ZARATE, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR335563)
OVERVIEW
Jose Refugio Zarate, Jr., appeals the trial court's imposition of fines and fees pursuant to Penal Code sections 1202.4 and 1465.8 and Government Code section 70373, arguing that People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) requires us to vacate their imposition. We dismiss defendant's appeal pursuant to section 1237.2.
All subsequent references are to the Penal Code unless otherwise specified.
BACKGROUND
The facts set forth herein are based on the undisputed facts in the parties' briefs.
In July 2017, police were dispatched to a hit-and-run collision. The victim of the collision (E.E.) explained that she had received derogatory text messages from defendant while at the home of C.S. E.E. and defendant had recently ended a year-long relationship and, along with the derogatory text messages, defendant sent C.S. nude images of E.E. that he had acquired during their relationship. Defendant posted those images to his social media. He also texted C.S. that he was near C.S.'s home.
Shortly thereafter, defendant drove by at a high rate of speed. E.E. saw defendant in the driver's seat pointing what appeared to be a firearm. Defendant flashed his headlights and accelerated towards C.S. Feeling unsafe, E.E. decided to drive home. Defendant followed her and rear-ended her car. When she pulled over, he "rammed into the side of [her car] and drove away."
The Solano County District Attorney charged defendant with four counts relating to the incident; defendant eventually pleaded no contest to misdemeanor disorderly conduct by distributing an intimate image (§ 647, subd. (j)(4)) and vandalism (§ 594, subd. (a)). The remaining counts were dismissed. The trial court placed defendant on three years' formal probation and ordered him to serve one year in county jail with a total credit of 177 days. Defendant was also ordered to pay a restitution fine of $300 (§ 1202.4), a court operations fee of $80 (§ 1465.8), and a criminal conviction assessment of $60 (Gov. Code, § 70373), for a total of $440 in fines and fees.
Following the Dueñas decision, defendant appealed, challenging only the imposition of fines and fees without a hearing on his ability to pay.
DISCUSSION
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."
The People cite People v. Hall (2019) 39 Cal.App.5th 502 to support the contention that defendant's failure to comply with section 1237.2 warrants dismissal of his appeal. Defendant asserts that section 1237.2 is inapplicable. We agree with the People.
"In determining the proper interpretation of a statute, [we begin] with the statutory language." (People v. Jenkins (2019) 40 Cal.App.5th 30.) " 'We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the statutory language." (Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175, 1198.)
As defendant himself states, "[t]he plain language of section 1237.2 addresses an 'error in the imposition or calculation' of fines and assessments." Defendant asserts that "imposition" covers only a situation involving the "lack of any statutory basis for either a fine or assessment, such as imposing a drug lab fee on a non-drug criminal conviction." Defendant cites no authority to support this narrow definition and we have found none. The relevant entry for "imposition" in Merriam-Webster's Dictionary provides a simpler and more commonsense definition: "something imposed," such as a "levy [or] tax." (Merriam-Webster's Collegiate Dict. (11th ed. 2014) p. 625.) Black's Law Dictionary defines the verb "impose" as "[t]o levy or exact (a tax or duty)" and "imposition" as "[a]n impost or tax." (Black's Law Dict. (11th ed. 2019) p. 905.) Nothing in the record or in our independent research suggests that the Legislature intended "imposition" to carry a meaning other than its commonsense meaning. Contrary to defendant's argument that his challenge falls outside section 1237.2 because it involves a "fundamental right," the imposition of fines and fees in this case falls squarely within the plain meaning of section 1237.2. (People v. Hall, supra, 39 Cal.App.5th at p. 504 [dismissing Dueñas-based appeal due to noncompliance with section 1237.2].)
Nothing in section 1237.2 suggests its inapplicability here. The sole issue on appeal is an alleged error in the imposition of fines and fees pursuant to sections 1202.4, 1465.8, and Government Code section 70373. The alleged error was "not discovered until after sentencing" (§ 1237.2), as Dueñas had not yet been decided at the time of defendant's sentencing. Section 1237.2 is clear that "[t]he trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines . . . upon the defendant's request for correction," even when an error is discovered after sentencing. Such is the case here. Accordingly, we dismiss this appeal. (See People v. Alexander (2016) 6 Cal.App.5th 798, 801 [dismissing appeal for noncompliance with section 1237.2].) If defendant wishes to prevent the imposition of the fines and fees at issue here, he must first make that request of the trial court.
2. Dueñas
Because we dismiss this appeal on section 1237.2 grounds, we need not address the substance of the numerous post-Dueñas authorities that have questioned its reasoning. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 327 ["Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them."]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 ["[W]e reject Dueñas's due process analysis. . . . Such a challenge should be based instead on the prohibition against 'excessive fines' contained in the Eighth Amendment."].) We note merely that there is now a conflict as to the applicability and reach of Dueñas. (See, e.g., People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [agreeing with courts that described the facts in Dueñas to be "extreme"].) In such a circumstance, the trial court "can and must make a choice between the conflicting decisions." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.)
DISPOSITION
The appeal is dismissed, without prejudice to further appeal once defendant has appropriately addressed this issue in the trial court.
BROWN, J. WE CONCUR: POLLAK, P. J.
STREETER, J.