Opinion
D074437
11-18-2019
THE PEOPLE, Plaintiff and Respondent, v. SHADIE VANN, Defendant and Appellant.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Quisteen S. Shum, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD274094) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Appeal dismissed. Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Shadie Vann of committing an assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). Vann thereafter admitted he had served a prior prison term (§§ 667.5. subd. (b), 668) and suffered four "probation denial" convictions (§ 1203, subd. (e)(4)) as well as a "strike" conviction (§§ 667, subds. (b)-(i), 668, 1170.12).
Undesignated statutory references are to the Penal Code.
The trial court sentenced Vann to an eight-year prison term based on an upper four-year term for the assault, doubled for the strike prior conviction. It ordered him to pay $2,624 in fines and assessments, consisting of $2,400 in restitution (Pen. Code, § 1202.4, subd. (b)); a $30 court operations assessment (Pen. Code, § 1465.8); a $40 conviction assessment (Gov. Code, § 70373); and a $154 fine (Gov. Code, § 29550).
Vann contends that under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) the trial court deprived him of his due process rights under the state and federal Constitutions by ordering him to pay the fines and assessments without first holding an ability-to-pay hearing. The People respond that he has not shown a remand is warranted. They maintain he forfeited the constitutional challenge by not raising it below, the record does not establish his inability to pay the fines and assessments in any event, and he points to no consequences resulting from his nonpayment like those experienced by the defendant in Dueñas. The People argue that due process does not relieve Vann of the requirement to raise these issues below and produce evidence of his claimed inability to pay.
We asked the parties to address in supplemental briefs whether this case should be dismissed under section 1237.2 because Vann did not make a claim of error on this ground in the trial court, either at the time of sentencing or afterwards, and it is his sole claim on appeal. Having considered the briefing, we conclude Vann's appeal is not cognizable under section 1237.2. We dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of Vann's offense are not relevant to the issues on appeal. It suffices to say that the probation report described him accosting then punching the victim, taking her to the ground and slamming her head against the concrete, then biting her finger.
As stated, Vann's sole contention on appeal is a challenge under Dueñas, supra, 30 Cal.App.5th 1157 to the trial court's imposition of restitution, fines, and assessments without first considering his ability to pay them. The People assert, and Vann concedes, that Vann did not first raise this claim in the trial court.
The People argue that because Vann did not assert this error below either at the time of sentencing or after, this appeal must be dismissed under section 1237.2. That statute provides an appeal "may not be taken" unless a defendant "first presents the claim in the trial court at the time of sentencing" or made a "motion for correction" in the trial court after sentencing if the defendant seeks to challenge an "error in the imposition or calculation of fines penalty assessments, surcharges, fees, or costs . . . ." (§ 1237.2, italics added; see § 1237, subd. (a) ["An appeal may be taken by the defendant . . . [¶] . . . Except as provided in Sections 1237.1, 1237.2, and 1237.5, from a final judgment of conviction"]; see also People v. Jenkins (2019) 40 Cal.App.5th 30, 37; People v. Hall (2019) 39 Cal.App.5th 502, 504-505 [dismissing appeal]; People v. Alexander (2016) 6 Cal.App.5th 798, 800-801 [dismissing appeal].)
In full, 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 [sic] the sole issue on appeal." --------
As the People point out, in People v. Hall, supra, 39 Cal.App.5th 502, the Court of Appeal observed 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.' [Citation.] 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 . . . ." (Id. at p. 504.) We agree with Hall's reasoning, and conclude under section 1237.2's broad language, Vann's appeal is not cognizable.
Vann argues that his appeal raises a legal or constitutionally-based argument as to the fines, fees, and assessments, and thus it is permissible notwithstanding section 1237.2. He asks us to follow the reasoning of the court in People v. Delgado (2012) 210 Cal.App.4th 761, involving a defendant's challenge to presentence custody credits and whether that appeal was permissible under a different statute, section 1237.1. Section 1237.1 bars an appeal on ground of "an error in the calculation of presentence custody credits" (§ 1237.1, italics added) where the defendant has not first presented the claim in the trial court. (Delgado, at p. 764.) The Delgado court found section 1237.1's statutory language reasonably susceptible of two interpretations, and concluded it was best understood as referring to mathematical or clerical error, whereas the defendant's claim in that case was a constitutional equal protection argument. (Delgado, at pp. 764-765.) Vann argues we should "harmonize" sections 1237.2 and 1237.1 to define the word "error" in the same manner as Delgado. He further maintains that interpreted in light of section 1237.2's reference to a "motion for correction," we should conclude section 1237.2 applies only to mathematical or clerical, not legal, error. Vann argues ambiguities in or doubts about the meaning of section 1237.2 should be resolved in his favor.
We are not persuaded. Delgado is inapposite. Section 1237.2's language is significantly broader, requiring dismissal of appeals where the claim is an error in the imposition or calculation of fines, fees, or assessments. Errors in the imposition of fees may be corrected just as any other mathematical or clerical error. We see no ambiguity to resolve in applying the statute, which is not comparable to section 1237.1. Accordingly, we dismiss the appeal.
DISPOSITION
The appeal is dismissed.
O'ROURKE, J. WE CONCUR: HALLER, Acting P. J. IRION, J.