Opinion
E072837
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. BRANDON JACOBI COLLINS, Defendant and Appellant.
David Zarmi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne Denault and Jennifer A. Jadovitz, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1807118) OPINION APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge. Dismissed. David Zarmi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne Denault and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
PROCEDURAL HISTORY
Because defendant's appeal concerns only the imposition of various fines and fees, the underlying facts are not relevant to this appeal. --------
On May 30, 2018, an amended complaint charged defendant and appellant Brandon Jacobi Collins with two counts of corporal injury against a person with whom he had a dating relationship, with a prior conviction under Penal Code section 273.5, subdivision (f)(1) (counts 1, 5); assault by means of force likely to produce great bodily injury under Penal Code section 245, subdivision (a) (count 2); kidnapping under Penal Code section 207, subdivision (a) (count 3); and dissuading a witness under Penal Code section 136.1, subdivision (b) (count 4), As to counts 1 and 5, the complaint alleged that defendant personally inflicted great bodily injury under Penal Code section 12022.7, subdivision (e). As to all counts, the complaint also alleged that defendant had one prior violent felony conviction, which was also a strike conviction under Penal Code sections 667, subdivisions (a) through (i), and Penal Code 1170.2, subdivisions (a) through (d). At the time of the alleged incidents, defendant was 33 years old.
On October 12, 2018, pursuant to a plea agreement, defendant pled guilty to counts 3 and 5, and admitted the prior strike conviction. At the sentencing hearing on March 29, 2019, the trial court struck the sentencing enhancements and sentenced defendant to a term of eight years eight months in state prison as follows: low term of six years for count 3; and one-third the midterm of eight years—two years—on count 5. The court awarded defendant 730 days of custody credit. The court also imposed a $40 court operations assessment under Penal Code section 1465,8, subdivision (a)(1); a $30 criminal conviction assessment under Government Code section 70373; a $300 restitution fine under Penal Code section 1202.4, subdivision (b); and a $300 parole revocation fine under Penal Code section 1202.45, subdivision (c), which was stayed.
On May 28, 2019, defendant filed his notice of appeal. In his appeal, defendant only challenges a sentencing error.
On June 5, 2020, we directed the parties to file supplemental letter briefs addressing the following question: "Should this appeal be dismissed under Penal Code section 1237.2?" Both defendant and the People filed supplemental letter briefs addressing the question. For the reasons set forth below, we shall dismiss the appeal.
DISCUSSION
Defendant contends that the abstract of judgment should be corrected to reflect the trial court's oral pronouncement. In this case, during the sentencing hearing, the trial court ordered: "$40 court security, $30 conviction assessment." The court failed to specify whether the assessments were for each count or just for one count. The abstract of judgment and minute order, however, stated that the assessments were imposed for each count. Defendant, therefore, argues that because a "court's oral pronouncement is controlling," we should amend the abstract of judgment "to reflect a single court operations assessment and a single criminal conviction assessment." (All caps., boldface and fn. omitted.)
Pursuant to section 1237.2, " [a]n 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 this case, the appeal is solely concerned with the imposition and calculation of the operations assessment fine under Penal Code section 1465.8, subdivision (a)(1), and the conviction assessment fine under Government Code section 70373 because the trial court's oral pronouncement of such fees differs from the minute order. Thus, by its plain terms, Penal Code section 1237.2 appears to preclude our consideration of this appeal.
In his supplemental brief, defendant argues that section 1237.2 does not apply because he "does not contend that the sentencing court made 'an error in the imposition or calculation of fines.' " The People, however, contend that although defendant "purports his claim is one of mere clerical error [citation], it is clear that he is challenging the imposition and calculation of the fees as stated in the minute order and abstract of judgment." Several courts have rejected defendant's argument, concluding that 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 [dismissing fee appeal under People v. Dueñas (2019) 30 Cal.App.5th 1157 for failure to comply with section 1237.2]; see People v. Alexander (2016) 6 Cal.App.5th 798, 801 [appeal involving imposition of a higher than bargained for restitution fine barred by section 1237.2].)
In People v. Hall, supra, 39 Cal.App.5th 502, the court stated that "Section 1237.2 applies any time a defendant claims the trial court wrongly imposed fines, penalty assessments, surcharges, fees, or costs without having first presented the claim in the trial court, and by the terms of the statute, the trial court retains jurisdiction pending appeal to correct any error." (Id. at p. 504.)
In People v. 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. (Alexander. 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 Court of Appeal 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 'any error in the imposition . . . of . . . fees' includes an error involving the imposition of a higher than bargained for fee." (Alexander, 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' "].)
We agree with both Hall and Alexander and conclude that section 1237.2 by its terms applies broadly to any asserted error in the imposition or calculation of fees.
Moreover, defendant has asked that "[i]n the event this court finds section 1237.2 does apply to appellant's claim, appellant asks this Court to stay the appeal or withhold its decision to permit appellant the opportunity to make a motion in the trial court under section 1237.2. This, rather than dismissal, would serve the interest of judicial economy because it would obviate a possible separate appeal from such a motion." We decline to do so. Both section 1237.2 and section 1237.1—a related statutory provision requiring a similar process for the correction of presentence custody credits—were enacted to preserve judicial resources by avoiding, where possible, utilization of the formal appellate process. (People v. Jordan (2018) 21 Cal.App.5th 1136, 1142-1143.) Should defendant be successful in the trial court, no further action will be required at the appellate level. If defendant's motion to correct his sentence is ultimately denied, that order would, itself, be separately appealable. (Id. at pp. 1140-1141 [denial of motion to correct sentence is appealable as a postjudgment order affecting a defendant's substantial rights].) In the interim, "[p]ursuing an appeal, while also pursuing a motion to correct sentence, accomplishes the opposite goal the Legislature was trying to accomplish by enacting sections 1237.1 and 1237.2" (Id. at pp. 1142-1143.)
Accordingly, we dismiss this appeal.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.