Opinion
Β295951
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. IAN RANDOLPH FERRANTE, Defendant and Appellant.
Elizabeth H. Eng, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Deputy Attorney General, David E. Madeo and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA072409) APPEAL from the judgment of the Superior Court of Los Angeles County. David Hizami, Judge. Dismissed. Elizabeth H. Eng, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Deputy Attorney General, David E. Madeo and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Ian Randolph Ferrante was charged with three felonies (Pen. Code, § 29800, subd. (a)(1) [possession of firearm by a felon], Pen. Code, § 25400, subd. (a)(1) [concealed firearm in a vehicle], Health & Saf. Code, § 11370.1, subd. (a) [possession of controlled substance with firearm]).
In October 2018, based on the court's indicated sentence of two years, defendant entered an open plea of no contest to all three felonies and also admitted five prior felony convictions, one of which qualified as a prison prior within the meaning of Penal Code section 667.5, subdivision (b). The parties stipulated to a factual basis for the plea and the court accepted defendant's waivers on the record.
At the sentencing hearing in December 2018, the court sentenced defendant to state prison for two years and awarded two days of presentence custody credits. The court imposed a $120 court security fee (Pen. Code, § 1465.8), a $90 criminal conviction assessment (Gov. Code, § 70373), a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), a $900 restitution fine (Pen. Code, § 1202.4, subd. (b)) and imposed and stayed a $900 parole revocation fine (Pen. Code, § 1202.45).
Defendant did not raise any objections in the trial court to the imposition of the fees and assessments. Defendant did not obtain a certificate of probable cause, filing a notice of appeal only as to postplea matters.
Defendant, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, contends the court's imposition of the statutory fines and fees without a finding of his ability to pay violated his constitutional rights. Defendant raises no other challenge on appeal.
Defendant's appeal is not cognizable. Penal Code 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. 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."
Defendant concedes he did not seek relief first in the trial court. As we have previously held, Penal Code 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.' " (People v. Hall (2019) 39 Cal.App.5th 502, 504, quoting People v. Alexander (2016) 6 Cal.App.5th 798, 801.) We are not persuaded by defendant's attempt to distinguish Hall.
Accordingly, the appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.