Opinion
A164559
04-21-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHN FRANKLIN GOODNER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 51510999)
Banke, J.
Defendant John Franklin Goodner appeals from a judgment following resentencing. His appellate counsel filed a brief raising no issues, but asking this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so.
Upon our independent review of the record, we vacate any remaining probation report fee imposed under former Penal Code section 1203.1b. In all other respects, we affirm.
All further statutory references are to the Penal Code.
Discussion
A jury convicted defendant of one count each of attempted murder (§§ 664, subd. (a), 187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), shooting at an inhabited dwelling (§ 246), making criminal threats (§ 422), and stalking (§ 646.9, subd. (a)). The jury also found true an allegation of personal intentional discharge of a firearm as to the attempted murder count (§ 12022.53, subd. (c)) and an allegation of personal use of a firearm as to the assault count (§ 12022.5, subd. (a)). The trial court sentenced defendant to 28 years four months in prison. The sentence included a seven-year term for the attempted murder conviction, as well as a 20-year term for the firearm enhancement on that count, and two 8-month terms for the criminal threats and stalking convictions (counts 4 and 5). The court stayed sentence on the remaining counts.
Defendant appealed and asserted, among other things, the case should be remanded to allow the trial court to exercise its discretion as to whether to strike the firearm enhancement pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.). This court agreed and remanded the case for resentencing. (People v. Goodner (June 20, 2019, A153100) [nonpub. opn.].)
The trial court set the date for resentencing in February 2022. Prior to the hearing, defendant submitted briefing asking the court to strike the firearm enhancement as well as to exercise its discretion, under newly amended section 654, to "reconfigure the entire sentence . . . to impose the lower term for either the assault or shooting at occupied dwelling convictions, and stay the attempted murder punishment."
After a hearing on the matter, the trial court resentenced defendant to 18 years four months in prison. In doing so, the court declined to exercise its discretion under section 654 to stay the sentence for the attempted murder conviction and impose the lower term on either the assault or the shooting of an occupied dwelling convictions. However, the court did exercise its discretion in imposing a lesser 10-year term for the firearm enhancement. Additionally, the court imposed several fines and fees, including a $176 probation report fee.
In his opening brief, defendant's appellate counsel notes "that on December 8, 2022 and January 11, 2023, [defendant] wrote to the trial court judge, requesting correction of the Probation Report Fee pursuant to . . . section 1237.2, but has not received any response."
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 sentencings, 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 . . . fees.... This section only applies in case where the erroneous imposition or calculation of . . . fees, or costs are the sole issue on appeal."
Upon our independent review of the record, we conclude this probation report fee must be vacated. Former section 1203.1b authorized the imposition of probation report fees. However, effective January 1, 2021, the Legislature enacted Assembly Bill No. 1869 (2019-2020 Reg. Sess.), which eliminated various administrative fees in criminal cases, including the presentence investigation or probation report fee previously authorized by section 1203.1b. Specifically, Assembly Bill No. 1869, repealed section 1203.1b and added section 1465.9, which provides "The balance of any court-imposed costs pursuant to Section . . . 1203.1b . . . as [that] section[] read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (§ 1465.9, subd. (a).)
Thus, we conclude-in light of Assembly Bill No. 1869 (2019-2020 Reg. Sess.) and section 1465.9-any unpaid portions of the probation report fee imposed under former section 1203.1b must be vacated to the extent it requires payment of uncollected fees remaining on or after July 1, 2021. (See People v. Clark (2021) 67 Cal.App.5th 248, 259 ["[T]he plain language" of section 1465.9 means that "any 'balance'" remaining on defendant's "account for probation supervision fees-that is, any amounts imposed but not paid- is 'unenforceable and uncollectible.' "].)
Having reviewed the entire record on appeal, we find no other arguable issues that would require further briefing.
Disposition
Any portion of the probation report fee imposed under former section 1203.1b that had not been paid as of July 1, 2021, is vacated pursuant to section 1465.9, subdivision (a). The trial court is ordered to prepare an amended abstract of judgment and forward a certified copy of that document to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Margulies, Acting P.J. Swope, J. [*]
[*]Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.