Opinion
A157646
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY RANDALL, JR., Defendant and Appellant.
(Humboldt County Super. Ct. No. CR 1802733B) ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
BY THE COURT:
It is ordered that the opinion filed herein on August 12, 2020, be modified as follows:
On page 1, the caption should reflect the Humboldt County Superior Court Case Number as: CR1802733B.
The modification does not change the judgment Dated: __________
/s/_________, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR 1802733)
In this single-issue appeal, defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to argue that his trial attorney provided ineffective assistance of counsel because he did not object at sentencing to the imposition of various fines and fees without the trial court determining his ability to pay. We conclude that any deficiency in this regard has been cured by defendant's recent application for relief in the trial court under Penal Code section 1237.2, which serves the same function as an objection at sentencing asserting defendant's inability to pay. We affirm.
Further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
Because the underlying facts and procedural history are not relevant to the issue on appeal, we do not recite them. Suffice it to say that pursuant to a negotiated plea, defendant pled guilty to one count of possession of methamphetamine for sale and admitted misdemeanor probation violations. (Health & Saf. Code, § 11378.) The court sentenced defendant to the aggravated term of three years, to be served in county jail with the final year to be served on mandatory supervision. (§ 1170, subd. (h).) As to the two misdemeanors, appellant was sentenced to 120 days in county jail, those sentences to be served concurrent to the felony count and concurrent to each other.
As part of defendant's sentence, the court imposed a $900 restitution fine, a $40 court operation assessment fee and a $30 criminal conviction fee. (§§ 1202.4, 1465.8; Govt. Code, § 70373.) Defendant did not object to the imposition of these amounts or request a hearing on his ability to pay. The probation report reflects that at the time of his arrest, defendant was homeless, unemployed and in debt.
The trial court also imposed a $600 restitution fine pursuant to section 672, which provides, "Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed." Defendant does not appear to be challenging this fine on appeal.
II. DISCUSSION
Defendant argues his trial attorney's failure to object to imposition of a restitution fine and fees on Dueñas grounds at sentencing constituted ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 (Strickland).) We disagree that he is entitled to relief in this appeal.
Decided in January 8, 2019, four months before the sentencing hearing in this case, Dueñas, supra, 30 Cal.5th at p. 1164 held that due process requires a trial court to determine a defendant's present ability to pay before imposing restitution fines and assessments. The Dueñas court relied on the principles that a state may not impose punishment on indigent defendants, or impair their access to the courts, solely because of their poverty. (Id. at pp. 1165-1168.) The reasoning of Dueñas has since been contested in several Court of Appeal opinions, and its validity and scope are being considered by the Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47 [rev. granted Nov. 26, 2019, S258446].
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 the 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." The purpose of section 1237.2 is to "encourage and facilitate the prompt and efficient resolution in the trial court of challenges to fines, assessments and fees that would otherwise be asserted on direct appeal." (People v. Torres (2020) 44 Cal.App.5th 1081, 1087.)
As explained in People v. Hall (2019) 39 Cal.App.5th 502 (Hall), "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.' " (Id. at p. 504.) It does not matter that the instant appeal is framed as ineffective assistance of counsel: appellant is effectively asserting "error in the imposition . . . of fines [and] fees . . . ." (§ 1237.2.) By the express terms of section 1237.2, defendant was required to first seek relief in the trial court if he wanted to pursue this single issue on appeal. He did not file a request in the trial court under section 1237.2 before filing this appeal.
In response to this Court's request for supplemental briefing regarding whether section 1237.2 requires the dismissal of this appeal and the denial of the companion petition for habeas corpus, appellant filed a letter with the superior court asking it to strike the fines and fees based on appellant's inability to pay. We have not been advised that the trial court has ruled on this request. Defendant has also filed a supplemental brief with this Court, in which he argues that habeas corpus remains an appropriate remedy, but makes no argument regarding the validity of this appeal.
We take judicial notice of the appellant's letter to the superior court, dated August 5, 2020. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
We deny defendant's companion petition for writ of habeas corpus by separate order filed this same date. (In re Johnny Randall, Jr., on habeas corpus, A158994.)
We leave for another day the question of whether filing a request under section 1273.2 with the superior court after an appeal is filed will suffice to avoid dismissal of that appeal. But the request in the trial court is in any event fatal to the merits of defendant's argument on appeal. Although trial counsel did not object to the fine and fees, appellate counsel has now remedied any purported oversight by his trial counsel by expressly seeking relief in light of Dueñas. Defendant cannot demonstrate any prejudice from trial counsel's failure to object at sentencing. (Strickland, supra, 466 U.S. at p. 694.)
The trial court retains jurisdiction under section 1237.2 to entertain defendant's request that it reconsider the fines and fees imposed. (Hall, supra, 39 Cal.App.5th at p. 504.) It will now consider the merits of defendant's request; indeed, it will be in a much better position to do so than this Court would be, as it has the power to hold an evidentiary hearing on the issue. If defendant wishes to argue that the trial court's ultimate ruling on his request fails to satisfy his constitutional rights or otherwise constitutes error, he may file a subsequent appeal of the trial court's order as one affecting his substantial rights. (§ 1237, subd. (b); People v. Jordan (2018) 21 Cal.App.5th 1136, 1140.) But any error in the original sentence, from which this appeal is taken, has been cured. "Pursuing an appeal, while also pursuing a motion to correct [the] sentence, accomplishes the opposite goal the Legislature was trying to accomplish by enacting section[]. . .1237.2." (Jordan at pp. 1142-1143.)
We express no opinion as to whether an ability to pay hearing was required before the superior court could impose the restitution fine and fees as part of the original sentence, or whether the fine and fees should now be reduced based on defendant's inability to pay. We note that appellant was ordered to pay more than the minimum $300 restitution fine under section 1202.4, subdivision (b)(1), and that even apart from Dueñas, the court is entitled to consider defendant's inability to pay when "increasing the amount of the restitution fine in excess of the minimum fine." (§ 1202.4, subd. (c).)
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BURNS, J.