Opinion
E066504
08-14-2017
THE PEOPLE, Plaintiff and Respondent, v. KAREN LOPER, Defendant and Appellant.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR006375) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Appeal dismissed. Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Karen Loper and her daughter assaulted her daughter's former boyfriend with a baseball bat and a hammer in his home. Pursuant to a plea agreement, defendant pled no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). In return, the remaining allegation was dismissed and defendant was placed on formal probation for a period of three years on various terms and conditions.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argues the restitution fine under section 1202.4 contained in the court's sentencing minute order and the felony terms and conditions of probation findings and orders of the court must be stricken because the trial court never ordered that fine during the sentencing hearing. The People agree that the trial court erred in failing to orally impose the restitution fine, but argue the appeal must be dismissed because section 1237.2 precludes a defendant from raising a restitution fine error as the sole issue on appeal without first exhausting his or her remedies in the trial court. Defendant counters that section 1237.2 does not prohibit her claim on appeal because she is challenging an error in the recording of the judgment and not the erroneous imposition or calculation of a fine. For the reasons explained below, we find defendant's appeal not cognizable under section 1237.2, and therefore dismiss the appeal.
II
The details of defendant's criminal conduct are not relevant to the limited issue raised in this appeal. Those details are set out in the parties' briefs, and we will not recount them here. Instead, we will recount only those facts and procedural background that are pertinent to the issue we must resolve in this appeal.
DISCUSSION
The trial court's June 3, 2016 minute order for the sentencing hearing and the felony terms and conditions of probation findings and orders of the court contain an order requiring defendant to pay a victim restitution fine in the amount of $330 pursuant to section 1202.4, subdivision (b)(1). However, at the time of the June 3, 2016 sentencing hearing, the trial court never orally pronounced or imposed a restitution fine pursuant to section 1202.4. Instead, the trial court stated, "Court will order probation supervision fees in the amount of $27; restitution fine pursuant to—probation revocation restitution fine pursuant to 1202.44 in the amount of $300; all fines, fees, and restitution is to be paid through probation at the rate of $45 per month beginning 30 days from today."
Citing People v. Mesa (1975) 14 Cal.3d 466, 471-472, superseded by statute on another ground as explained in People v. Turner (1998) 67 Cal.App.4th 1258, 1268, defendant argues that where there is a discrepancy between the clerk's transcript and the reporter's transcript, the court's oral pronouncement controls, and the court's minute order and abstract of judgment must be corrected accordingly. We agree.
Defendant also argues that under People v. Tillman (2000) 22 Cal.4th 300 (Tillman), the People forfeited the right to correct any error in failing to impose the fine. In Tillman, the prosecutor did not object when the trial court failed to impose restitution fines pursuant to sections 1202.4 and 1202.45. (Tillman, at pp. 301-302.) The restitution fine under section 1202.4 is mandatory unless the trial court finds compelling and extraordinary reasons for not imposing it, and states those reasons on the record. (Tillman, at p. 302.) The restitution fine under section 1202.45 is mandatory when the sentence includes a term of parole, and is suspended until parole is revoked. (Tillman, at p. 302, fn. 1.) The Court of Appeal concluded the fines were mandatory and "amend [ed] the judgment[s] to add restitution fines of $200, the minimum permitted by the statutes." (Id. at p. 302.)
Our Supreme Court reversed the Court of Appeal on the ground of waiver, without directing the matter be considered by the trial court on remand. The Supreme Court explained that in prior cases it held a defendant was barred from seeking correction on appeal of alleged discretionary sentencing errors "after having failed to object in the trial court." (Tillman, supra, 22 Cal.4th at pp. 302-303.) The court stated the same rationale applied in that case to the People's failure to object. Thus, by failing to object to the discretionary decision not to impose a restitution fine, the People waived the ability to seek correction of the error on appeal. (Id. at p. 303.)
The People agree that Tillman applies in the instant case, but argue the appeal must be dismissed pursuant to section 1237.2. The People rely on the recent decision in People v. Alexander (2016) 6 Cal.App.5th 798 (Alexander) to support their position.
The People also filed a motion to dismiss the appeal on the basis that defendant's sole issue on appeal involves the imposition of a fine. This court denied the motion without prejudice to making the same argument in its respondent's brief. --------
Effective January 1, 2016, 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."
In Alexander, supra, 6 Cal.App.5th 798, the defendant argued "the trial court violated an implicit term of the plea agreement that the restitution fine would be the statutory minimum of $300 when it issued a $6,000 victim restitution fine instead." (Id. at p. 800.) The erroneous imposition of the $6,000 victim restitution fine was the sole issue on appeal, and the defendant made no claim of error to the trial court, either at the time of sentencing or after, as required by section 1237.2. (Id. at p. 801.) The defendant claimed section 1237.2 did not apply because he complained about a violation of the plea bargain, not a miscalculation of the fine. The Second District rejected the defendant's argument based on the plain language of the statute, and dismissed the defendant's appeal. The court explained, "The plain language of section 1237.2 clearly makes a claim to the trial court a prerequisite to any appeal which solely involves 'an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs . . . .' [Citation.] Contrary to [the defendant's] interpretation, this language does not limit section 1237.2's reach only to situations where the fee simply did not apply at all or was a result of mathematical error. The phrase 'an error in the imposition . . . of . . . fees' includes an error involving the imposition of a higher than bargained for fee." (Alexander, supra, at p. 801, citing People v. Rodriguez (2012) 55 Cal.4th 1125, 1131 [statutory construction begins with " 'the plain, commonsense meaning of the language used by the Legislature' "].)
In the present matter, defendant argues section 1237.2 does not apply here because she is challenging an error in the "recording" of the judgment, not a fine or fee that was actually imposed. The defendant further contends Alexander is distinguishable from her case because "no fine was actually imposed." She further claims the logic of Alexander is flawed because "section 1237.2 was not intended to preclude appeals where the central issue" concerns the violation of a plea bargain or, as in this case, "an error in the recording of her judgment." We reject defendant's claims.
First, we disagree with defendant's contentions that no fine was actually imposed and that the error merely involved the recording of the judgment. If the trial court had truly intended to impose no victim restitution fine, then pursuant to section 1202.4 the trial court was required to state its reasons for not doing so and state those reasons on the record. The restitution fine under section 1202.4 is mandatory. Section 1202.4, subdivision (b), states, "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (Italics added.) It appears the trial court here overlooked the victim restitution fine and failed to impose it.
Second, we believe the reasoning in Alexander applies in the present case. The essence of defendant's claim on appeal is the trial court's failure to orally pronounce or impose the section 1202.4 restitution fine. And, an error in "recording" the judgment is an error in the court's failure to orally pronounce or impose the judgment. Section 1237.2 clearly states that if the defendant's sole issue on appeal is a trial court's "error in the imposition . . . of fines," the defendant may not raise that claim until he or she exhausts his remedies in the trial court. The plain language of section 1237.2 dictates that defendant cannot raise her instant claim on appeal. (Alexander, supra, 6 Cal.App.5th at p. 801.)
Accordingly, although we agree with defendant's assertion that time and resources have already been incurred in filing this appeal, and filing a motion in the trial court would result in further judicial resources, we dismiss defendant's appeal. (Alexander, supra, 6 Cal.App.5th at p. 801.)
III
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.