Opinion
H046374
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. KYLE EDWARD LOWERY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1766999, B1795458, C1756182, F1765718)
Defendant Kyle Edward Lowery pleaded no contest to various charges in four different cases and was sentenced to an aggregate term of 13 years in prison. At sentencing, the trial court imposed numerous fines and fees and ordered direct victim restitution. On appeal, Lowery argues that the trial court erred by imposing fines and fees without determining whether he had the ability to pay them as required under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We dismiss Lowery's appeal because he has failed to comply with Penal Code section 1237.2.
Unspecified statutory references are to the Penal Code.
BACKGROUND
The facts of Lowery's crimes are not relevant to the issues raised on appeal.
On April 17, 2018, Lowery entered pleas in four separate cases.
First, in case No. B1795458, Lowery pleaded no contest to a count of residential burglary (§§ 459, 460, subd. (a)) and admitted that he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)).
Second, in case No. C1756182, Lowery pleaded no contest to possession for sale of a controlled substance (Health & Saf. Code, § 11378), sale or possession for sale of designated substances (Health & Saf. Code, § 11375, subd. (b)(1)), and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)). He also admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
Third, in case No. C1766999, Lowery pleaded no contest to making criminal threats (§ 422) and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
Finally, in case No. F1765718, Lowery pleaded no contest to reckless driving while evading police (Veh. Code, § 2800.2, subd. (a)) and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
At the combined sentencing hearing on August 30, 2018, the trial court sentenced Lowery to an aggregate term of 13 years in prison for all four cases.
The trial court also imposed various fines and fees. In all four cases, the trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a matching parole revocation fine that was imposed but suspended (§ 1202.45). The trial court further imposed a total of $240 in court operations assessments (§ 1465.8), $150 in criminal conviction assessments (Gov. Code, § 70373), a $100 laboratory analysis fee (Health & Saf. Code, § 11372.5), a $300 drug program fee (Health & Saf. Code, § 11372.7), two $129.75 criminal justice administration fees (Gov. Code, §§ 29550, 29550.1, 29550.2), a $10 fine (§ 1202.5), and a $4 emergency air transport fine (Gov. Code, § 76000.10). In case No. B1795458, the trial court ordered Lowery to pay direct victim restitution to four victims totaling $857.
During the sentencing hearing, the trial court ordered restitution to the four victims in the amounts of $460, $330, $35, and $30. It appears that the trial court misspoke during the hearing. During the sentencing hearing, the trial court confirmed that the parties had stipulated to the restitution amounts as described in the probation report, and the probation report listed restitution in the amounts of $460, $330, $35, and $32.
DISCUSSION
Lowery's sole argument on appeal is that the fines and fees imposed in his case must be stayed because the trial court erroneously imposed them without first determining that he had the ability to pay. Lowery primarily relies on the Second Appellate District's decision in Dueñas, supra, 30 Cal.App.5th 1157. Lowery has not made a motion for correction in the trial court. Thus, we conclude that section 1237.2 requires dismissal of his appeal.
In his reply brief, Lowery clarifies that he is not challenging the order for direct victim restitution on appeal. --------
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."
The Attorney General argues that Lowery's failure to comply with section 1237.2 requires us to dismiss his appeal. In turn, Lowery argues that section 1237.2 does not apply because the trial court followed the applicable law at the time it imposed the fines and fees and did not make an error. Lowery claims that section 1237.2 does not address major changes in the law and is intended to apply only to minor, clerical, or ministerial errors.
We disagree with Lowery. "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." (People v. Hall (2019) 39 Cal.App.5th 502, 504 [holding that failure to comply with § 1237.2 required dismissal of appeal solely raising Dueñas claims]; see also People v. Alexander (2016) 6 Cal.App.5th 798, 801 [holding that failure to comply with § 1237.2 required dismissal of appeal from "error involving the imposition of a higher than bargained for fee"].) Here, Lowery's argument is that the trial court wrongly imposed fines and fees without holding a hearing and determining his ability to pay. In other words, he claims that the trial court made "an error in the imposition or calculation" of fines and fees. (§ 1237.2.)
Under these circumstances, we find that Lowery's failure to comply with section 1237.2 requires us to dismiss his appeal.
DISPOSITION
The appeal is dismissed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Mihara, J.