Opinion
A150792
08-24-2018
THE PEOPLE, Plaintiff and Respondent, v. TERRY LEE RAMIREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51614346)
Terry Lee Ramirez, Jr.'s sole contention on appeal is the trial court failed to exercise discretion when it set the $2,100 restitution fine he was ordered to pay after being convicted of assault. Because Ramirez failed to move the trial court for relief from the fine before filing this appeal as required by Penal Code section 1237.2, we shall dismiss the appeal.
All statutory references are to the Penal Code.
BACKGROUND
The underlying facts of Ramirez's offenses are not relevant to the issue raised on appeal, so we do not recite them.
Ramirez was charged with assault with a deadly weapon (§ 245, subd. (a)(1) (count 1)) and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4) (count 2)). Enhancements were alleged for infliction of great bodily injury and use of a deadly weapon.
The jury convicted Ramirez as charged and found the enhancements true. The trial court sentenced Ramirez to an aggregate term of seven years in state prison. Further noting "[t]here's a mandatory restitution amount of 2100, which is the 300 times the 7," the court also imposed a $2,100 restitution fine pursuant to section 1202.4, subdivision (b). Ramirez now appeals.
DISCUSSION
Ramirez's sole contention on appeal is the trial court failed to exercise discretion in setting the $2,100 restitution fine pursuant to section 1202.4 and only imposed that amount because it erroneously believed it was required to do so. He argues this denied him a fair hearing and fundamental procedural rights.
Section 1202.4, subdivision (b) provides: "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. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). . . . [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (§ 1202.4, subd. (b)(1)-(2).)
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 [is] the sole issue on appeal." (§ 1237.2.)
The record on appeal does not indicate that the issue of the restitution fine was addressed to the trial court at sentencing or that any motion for correction was made to the trial court, not even an informal written request. Nor is there a trial court ruling on such a motion. Absent compliance with section 1237.2's statutory requirements, we must dismiss Ramirez's appeal. (See People v. Alexander (2016) 6 Cal.App.5th 798, 800-801.)
Ramirez does not argue that a motion for correction was filed with the trial court. Rather, he argues that section 1237.2 precludes an appeal of "an erroneously calculated or imposed fine" but the error he asserts is "of a different nature." Specifically, he says the "issue here is the trial court's failure to exercise discretion where it was required to do so." We disagree that the issue Ramirez raises on appeal takes this case outside the ambit of section 1237.2. " 'When interpreting statutes, we begin with the plain, commonsense meaning of the language used by the Legislature. . . . If the language is unambiguous, the plain meaning controls.' " (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131.) The plain language of section 1237.2 clearly makes a request for relief to the trial court a prerequisite to any appeal which solely involves "an error in the imposition . . . of fines . . . ." (§ 1237.2.) Because Ramirez's appeal concerns the trial court's imposition of the $2,100 restitution fine, he must adhere to the requirements of section 1237.2 before this court can assert jurisdiction.
DISPOSITION
The appeal is dismissed.
/s/_________
Siggins, P.J. We concur: /s/_________
Jenkins, J. /s/_________
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------