Filed 9/18/19
CERTIFIED FOR PARTIAL PUBLICATION *
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D073662
Plaintiff and Respondent,
v. (Super. Ct. Nos. CD272046/CD270678) MARKEITH JENKINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.
Lasater, Judge. Reversed in part, remanded with directions.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I and II. A jury convicted defendant Markeith Jenkins of assault by means likely to produce
great bodily injury (Pen Code,1 § 245, subd. (a)(4)) and battery with serious injury
(§ 243, subd. (d)). The jury also found true defendant personally inflicted great bodily
injury (§ 12022.7, subd. (a)). Defendant subsequently admitted to having two prior strike
convictions (§ 667, subds. (c) & (e)(2)(A)); two prior serious felony convictions (§§ 667,
subd. (a)(1) & 1192.7, subd. (c)); and two prior prison convictions (§ 667, subd. (b)).
Before sentencing, defendant filed a motion based on People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero) seeking in the interest of justice to have one or
more of his strike priors set aside. The court denied that motion, imposed on defendant
the term of 25 years to life on the assault by means likely to produce great bodily injury
conviction; stayed pursuant to section 654, subdivision (a)(1) his sentence on the
conviction for battery with serious bodily injury; and imposed three consecutive years for
the great bodily injury enhancement (§ 12022.7, subd. (a)); and an additional 10 years for
the two serious felony prior convictions, for a total sentence of 13 years plus 25 years to
life.
In his opening brief, defendant contends remand is necessary both for a pretrial
diversion hearing (§ 1001.36), and to give the court an opportunity to exercise its newly
provided discretion pursuant to Senate Bill No. 1393 (2017–2018 Reg. Sess.), (hereafter
Senate Bill 1393), effective January 1, 2019, to dismiss or strike one or more of his
serious felony prior convictions. Defendant alternately contends the court abused its
1 All further statutory references are to the Penal Code unless otherwise noted. 2 discretion when it refused under Romero to strike one or more of his prior strike
convictions.
After the People filed their respondent's brief, defendant moved in the trial court
to vacate various fines, assessments, and fees imposed at sentencing (sometimes, motion
to vacate), relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Defendant provided this court with a courtesy copy of the motion to vacate when he filed
his reply brief in this court on May 10, 2019.
On June 19, 2019, on our own motion we requested supplemental briefing on the
following two issues: (1) whether a superior court retains jurisdiction under section
1237.2 to address the imposition of fines, assessments, and fees imposed on a defendant,
when an appeal has already been filed in which the imposition of such is not the only
issue being appealed; and, regardless of the outcome of that threshold issue, (2) whether
defendant in the instant case is entitled to a hearing under Dueñas on his ability to pay the
fines, assessments, and fees that were imposed at sentencing, or whether he forfeited that
alleged right by his failure to object to such imposition. The parties submitted
supplemental briefing as requested, which we have considered in deciding this case.
As we explain, we agree newly enacted section 1001.36 and newly amended
sections 667, subdivision (b), and 1385, subdivision (b), apply retroactively in this
matter. Accordingly, we conditionally reverse the judgment and remand the matter to
3 allow the trial court an opportunity to exercise its discretion under these statutes, as
discussed in more detail post.2
As we further explain, we conclude the trial court lacked jurisdiction under section
1237.2 to rule on defendant's motion to vacate because as is clear, defendant's appeal
raises issues other than the imposition of fines, assessments, and fees. We also conclude
on the facts of this case that defendant forfeited his right to challenge the imposition of
such.
FACTUAL BACKGROUND
Victim Brooks A. testified he and his friend David. L. had dinner on May 12,
2017, at a restaurant located in Balboa Park in San Diego. After dinner, while walking
back to their car, Brooks heard and saw two males on the opposite side of the street
"having a very loud conversation." As Brooks and David continued walking, they heard
the yelling between the two males becoming louder. Brooks then looked over his right
shoulder and noticed one of the two males who had been yelling approaching from
behind. Brooks at trial identified this man as defendant. Brooks observed the man was a
few feet away, and appeared animated and aggressive as he approached.
Brooks testified the man was still yelling loudly, but this time at them. Although
the man was "really incoherent," Brooks did hear him say something like, "Why—why
are you walking away from me?" Brooks did not know the man, and had never seen or
spoken to him before. Brooks turned toward the man, and said "something to the effect
2 In light of our decision, we deem it unnecessary to determine whether the court erred in refusing under Romero to strike one or more of defendant's prior strikes. 4 of, I'm sorry. I don't—I don't know what's going on" Brooks noticed the man was
holding or "gripping something" in his right hand.
Before Brooks could take another step and without warning, he felt a fist hit his
jaw, nose, and cheek area. Brooks did not see what he described as a bone-shattering
punch because he was in the process of turning around when struck. The force of the
blow "shattered" multiple teeth, "busted" open his lip, and caused significant blood loss
from his mouth and nose. David called 911 while he and Brooks walked to the end of the
street, where they met police. Immediately before the punch, Brooks did not see anyone
threatening the man, including, as discussed post, "with a stick."
For weeks after the attack, Brooks could not eat solid food; he also had trouble
breathing and swallowing, and experienced significant pain and discomfort despite taking
pain medication. Months after the attack, Brooks still experienced facial swelling and
discomfort from the punch.
David testified he and Brooks had been friends for years. After dinner while
walking back to David's car, they heard a man behind them "yelling" but could not make
out what the man was saying. The man, whom David described as middle-aged and
whom he identified in court as defendant, appeared to be yelling at them, as he was
looking directly at Brooks and David. Like Brooks, David did not know the man, and
had never met or spoken to him. David also did not see the man being chased by another
man holding a stick. As soon as they both turned around in response to the man's yelling,
according to David the man appeared "ready to attack and then . . . did," hitting Brooks in
the face.
5 David saw the man was holding an object in his right hand when he punched
Brooks in the face. David, however, could not tell what the object was. David, who
worked in a hospital, noted the punch was forceful enough to knock off parts of Brooks's
teeth. Immediately after the punch, blood started pouring out of Brooks's mouth and
nose. In shock over what had just happened to Brooks, David yelled at the man, who
turned around and walked the other way. David also heard a bystander on the other side
of the street yell at the man. After assessing the injuries to Brooks's face, David called
911. As he was doing so, he saw the man again start to approach. Scared for their safety,
David and Brooks crossed the street to avoid the man.
Defendant testified in his own defense. On the day of the May 12 attack,
defendant was temporarily homeless and living in Balboa Park. As he was resting by a
tree with his eyes closed, defendant heard someone going through his belongings. When
he looked up, he saw a woman he described as homeless running away. Defendant
checked his personal belongings and found his cigarettes and debit card missing.
Defendant next saw a large man holding a "giant stick" staring at him. Defendant
estimated the stick was about six inches in diameter, and believed this individual, whom
he had seen in the park before, was a lookout for the woman who had just stolen some of
his belongings. The individual looked like he wanted to hurt defendant.
Defendant nonetheless approached this individual and pleaded for the return of his
debit card. In response, the individual told defendant to leave, at the same time flexing
his muscles. Defendant, who was then standing in the middle of the street, heard
6 someone yell "Hit him." Defendant believed someone across the street was imploring the
individual to strike defendant with the stick.
Defendant testified the man who yelled "Hit him" was victim Brooks. Defendant
angrily approached Brooks, attempted to explain that he had just been robbed of his
cigarettes and debit card, and suggested that Brooks should try and help him instead of
encouraging the other individual to use the stick to hit defendant. According to
defendant, Brooks in response merely said, "I can't help you," or words to that effect. As
defendant was having this conversation with Brooks, defendant saw the individual with
the stick walking "fast" toward them.
Fearing for his own safety, defendant testified he then "lunged" toward, and
punched, Brooks to keep from being hit by the other individual, who, according to
defendant, was aggressively swinging the stick as he approached. Defendant claimed he
had nothing in his hand, and only used his fist, when he hit Brooks.
According to defendant, the other individual again sought to strike defendant with
the stick. This time, defendant grabbed the stick, and the two men struggled over it.
Because the other individual was wearing leather gloves, he dropped the stick, allowing
defendant to take possession of it. Defendant then threw the stick over the bridge.
Defendant testified that he never felt threatened or "anything like that" by Brooks;
that Brooks had no weapons in his hand when defendant hit him; that defendant did not
hit Brooks in self-defense; but that Brooks "just was in the way" as defendant attempted
to avoid the other individual holding the stick. Defendant also testified he was not a
"violent person," and he felt bad about hurting Brooks.
7 DISCUSSION
I
Mental Health Diversion
Defendant contends that he is entitled to a conditional remand to allow the trial
court to exercise its discretion and consider granting him mental health diversion under
section 1001.36. Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant
contends this statute applies retroactively in this matter because it has an ameliorative
effect on punishment. The People disagree, arguing Legislative intent shows the statute
was not intended to apply retroactively. We agree with defendant.
A. Guiding Principles
Section 1001.36 was enacted on June 27, 2018 (Stats. 2018, ch. 34, § 24,
pp. 1318–1321) and took effect immediately. (Id., § 37, at p. 1341.) A court may grant
pretrial diversion under section 1001.36 if the court finds: (1) the defendant suffers from
an identified mental disorder; (2) the mental disorder played a significant role in the
commission of the charged offense; (3) the defendant's symptoms will respond to
treatment; (4) the defendant consents to diversion and the defendant waives his or her
speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the
defendant will not pose an unreasonable risk of danger to public safety, as defined in
section 1170.18, if the defendant is treated in the community. (§ 1001.36, subd. (b)(1).)
If the court grants pretrial diversion, "[t]he defendant may be referred to a program
of mental health treatment utilizing existing inpatient or outpatient mental health
resources" for "no longer than two years." (§ 1001.36, subd. (c)(1)(B) & (3).) If the
8 defendant performs "satisfactorily in diversion, at the end of the period of diversion, the
court shall dismiss the defendant's criminal charges that were the subject of the criminal
proceedings at the time of the initial diversion." (Id. subd. (e).)
As a canon of statutory interpretation, we generally presume laws apply
prospectively. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara).)
However, the Legislature may explicitly or implicitly enact laws that apply retroactively.
(Ibid.) To determine whether a law applies retroactively, we must determine the
Legislature's intent. (Ibid.)
B. Section 1001.36 and Retroactivity
Courts are divided as to whether section 1001.36 applies retroactively to cases not
yet final on appeal. (Compare People v. Hughes (Sept. 11, 2019) __ Cal.App.5th __,
2019 WL 4307903, p. *1 (Hughes) [§ 1001.35 applies retroactively]; People v. Burns
(2019) 38 Cal.App.5th 776, 2019 WL 3811976, p. *5 (Burns), review filed (Aug. 30,
2019) [same]); People v. Weaver (2019) 36 Cal.App.5th 1103, 1121 (Weaver) [same];
People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220
(Frahs) [same]; with People v. Torres, Jr. (Sept. 10, 2019) __ Cal.App.5th __, 2019 WL
4267760, pp. *2–3 [§ 1001.36 does not apply retroactively]; People v. Craine (2019) 35
Cal.App.5th 744, 749 (Craine) [same].)
"Frahs observed that just as the timing requirement for transfer motions did not
bar retroactive application of Proposition 57 to nonfinal cases, section 1001.36,
subdivision (c)'s reference to 'pretrial' diversion before 'adjudication' merely reflected
'how this particular program is ordinarily designed to operate' and did not bar
9 retroactivity. (Frahs, [supra, 27 Cal.App.5th] at p. 791.) Disagreeing with Frahs,
Craine relied on the statutory text to conclude a pretrial diversion program could not
apply to a defendant who had already been convicted and sentenced. (Craine, [supra, 35
Cal.App.5th] at p. 751.) Weaver acknowledged the statutory text cited by Craine, but
found it insufficient to rebut Estrada's inference of retroactivity as applied in Lara.
(Weaver, [supra, 36 Cal.App.5th] at pp. 1120–1121.)
"Were we writing on a blank slate, we might find Craine's reasoning persuasive.
Language in section 1001.36 reflects certain legislative assumptions about how the
mental health diversion program will operate, and the references to pretrial diversion
seem to suggest an understanding about the anticipated timing of such a request.
However, addressing a statute that also contained express timing requirements, the
California Supreme Court in Lara unanimously concluded the Estrada presumption
applied even though those requirements could not be met if the statute were invoked in
cases not final on appeal. (Lara, supra, 4 Cal.5th at p. 309.)
"It is true, as Craine points out, that Lara did not specifically discuss this statutory
'timing' language in Proposition 57. (Craine, supra, 35 Cal.App.5th at p. 756; see Welf.
& Inst. Code, § 707, former subd. (a)(1), now subd. (a)(1) & (2).) Nevertheless, we can
find no reasonable way to factually distinguish Lara on this point. Craine's suggestion
that the statutory timing language in Lara 'did not facially preclude retroactive
application of Proposition 57' and 'only presented a theoretical obstacle for prosecutors in
terms of getting cases previously filed under the old law transferred from juvenile court
back into criminal court' (Craine, at p. 757) does not persuade us. The relevance of the
10 timing language in both statutes is that it reflects legislative intent as to how the new
procedure will normally operate. If that intent is not enough to dictate prospective
application in Lara as to Proposition 57, we do not see how it can require prospective
application as to mental health diversion in section 1001.36. And to reject Lara on the
basis that a decision is not authority for a proposition not specifically discussed would be
to conclude that the Supreme Court reached the wrong result because it overlooked
crucial statutory language." (Burns, supra, __ Cal.App.5th __, 2019 WL 3811976, p.
*5.)
Furthermore, our high court decided Lara before the Legislature enacted section
1001.36, and the Legislature is deemed to have been aware of the decision. (See People
v. Overstreet (1986) 42 Cal.3d 891, 897.) Had the Legislature intended for the courts to
treat section 1001.36 in a different manner, we would expect the Legislature to have
expressed this intent clearly and directly, not obscurely and indirectly. (See In re Pedro
T. (1994) 8 Cal.4th 1041, 1049 [noting that, to counter the Estrada rule, the Legislature
should "demonstrate its intention with sufficient clarity that a reviewing court can discern
and effectuate it"].)
Our high court will soon decide the retroactivity question. Until it does so, we are
unpersuaded that the Legislature's intent is sufficiently clear to rebut the Estrada
inference. We thus will follow Burns, Weaver, Frahs, and similar cases in applying Lara
to permit retroactive application of section 1001.36. This conclusion, however, does not
end our analysis.
11 C. Conditional Reversal Is Warranted to Allow Defendant the Opportunity to
Make a "Prima Facie Showing" of Eligibility under Section 1001.36
Effective January 1, 2019, section 1001.36, subdivision (b)(3) provides, "At any
stage of the proceedings, the court may require the defendant to make a prima facie
showing that the defendant will meet the minimum requirements of eligibility for
diversion and that the defendant and the offense are suitable for diversion. The hearing
on the prima facie showing shall be informal and may proceed on offers of proof, reliable
hearsay, and argument of counsel. If a prima facie showing is not made, the court may
summarily deny the request for diversion or grant any other relief as may be deemed
appropriate."
Based on this provision, the People alternatively contend that remanding the
instant case to allow the court to exercise its discretion is unnecessary because defendant
has not established, and cannot establish, a prima facie showing of eligibility under
section 1001.36. The People further contend that defendant has an adequate remedy by
way of petition for writ of habeas corpus, and that, in any event, remand would be futile.
We find these contentions unavailing.
Assuming, without deciding, the prima facie showing provision applies
retroactively, the provision is discretionary, not mandatory. Moreover, the purpose of the
provision is to determine whether a defendant is potentially eligible for diversion.
In this case, there is substantial record evidence showing that defendant suffers
from an identified mental disorder, as set forth in the five-page Mental Competency
Examination Report of defendant ordered pursuant to section 1368, which was the
12 subject of an October 30, 2017 competency hearing; and a 10-page postconviction
psychological report of defendant dated March 2, 2018, which concluded defendant was
experiencing paranoid schizophrenia, bipolar disorder, hallucinations, and erratic
behavior.
There is also substantial record evidence showing that defendant's mental disorder
may have played a significant role in the commission of the charged offense, as
defendant testified that he was being chased by a large individual wearing leather gloves
wielding a big stick, and that the victim allegedly yelled that this other individual should
use the stick to hit defendant. However, neither Brooks nor David saw an individual
holding a stick, much less chasing defendant while swinging it, as defendant testified.
The record also supports a potential finding that defendant's symptoms may
respond to treatment, as close family members, including "aunt" Sheila S., and medical
professionals, all noted defendant's behavior and symptoms improved when he took his
psychotropic medication. Further, the record shows defendant acknowledged he needed
mental health treatment, as did the court at his sentencing.
The key issue for purposes of making a prima facie showing of eligibility is
whether defendant will not pose an unreasonable risk of danger to public safety, as
defined in section 1170.18, if he is treated in the community. (See § 1001.36, subd.
(b)(1).) On the one hand, the record shows that defendant has a lengthy criminal history
dating back to 1987, which includes at least six prison terms, and a grant of probation at
the time he committed the instant offenses; that he currently is serving a sentence under
the Three Strikes law, which law the court found applicable when it refused to strike one
13 or more of his strike priors, as noted; and that he also has a long history of substance
abuse.
On the other hand, we agree with defendant that he is not statutorily ineligible for
diversion under section 1001.36, despite the People's argument to the contrary. This
statute borrows the definition of "unreasonable risk of danger to public safety" under
section 1170.18, subdivision (c), as noted, which in turn provides: " 'unreasonable risk of
danger to public safety' means an unreasonable risk that defendant will commit a new
violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of section 667."3 Defendant's convictions under sections 245, subdivision
(a)(4) (count 1) and 243, subdivision (d) (count 2) do not include any of the
"disqualifying" crimes listed in section 667, subdivision (e)(C)(iv),4 and thus, he is not
ineligible for diversion under section 1001.36, subdivision (b)(1), despite the fact his
conviction under count 1 constituted a "violent felony" for purposes of section 667.5,
subdivision (c)(8).
3 Section 667, subdivision (e)(C)(iv) lists the following crimes, stated in part as follows: "(I) A 'sexually violent offense' "; "(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than [the defendant]"; "(III) A lewd or lascivious act involving a child under 14 years of age"; "(IV) Any homicide offense"; "(V) Solicitation to commit murder"; "(VI) Assault with a machine gun on a peace officer or firefighter"; "(VII) Possession of a weapon of mass destruction"; "(VIII) Any serious or violent felony offense punishable in California by life imprisonment or death."
4 We note that under section 245, subdivision (a)(4), defendant was facing "imprisonment . . . for two, three or four years, or in a county jail for not exceeding one year"; and that under section 243, subdivision (d), he was facing "imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years . . . ." 14 Moreover, the record shows when defendant committed the instant offenses, he
had not taken his psychotropic medication for days, as his backpack had been stolen
while he was temporarily homeless and living in Balboa Park, as he waited for his "case
worker" to provide him with new housing.
While the issue is close, we conclude on balance that defendant should be allowed
an opportunity to make a "prima facie showing" that he meets the "minimum
requirements of eligibility for diversion and that [he] and the offense[s] are suitable for
diversion" within the meaning of section 1001.36.
II
Senate Bill 1393
Defendant also requested remand to allow the trial court to exercise discretion
newly granted it by Senate Bill 1393 to strike one or more of his serious felony priors
used to support the five-year enhancements under section 667, subdivision (a)(1). Prior
to Senate Bill 1393's adoption, the law prohibited courts from striking felony priors used
for purposes of the section 667 enhancement. (Former § 1385, subd. (b).) However,
effective January 1, 2019, Senate Bill 1393 removed that prohibition. Defendant
contends Senate Bill 1393 is retroactive and applies to all cases not yet final as of its
effective date, such as this case. We agree.
Indeed, absent evidence to the contrary, amendments to statutes that reduce the
punishment for a crime or vest in trial courts the discretion to impose a lesser penalty,
such as Senate Bill 1393, apply to all defendants whose judgments are not final as of the
amendment's effective date. (Estrada, supra, 63 Cal.2d at p. 742; People v. Garcia
15 (2018) 28 Cal.App.5th 961, 972 (Garcia).) When it enacted Senate Bill 1393, the
Legislature did not indicate it intended the legislation to apply prospectively only.
(Garcia, at p. 972.) The act thus applies retroactively to this issue.
We are required to remand in instances such as this "unless the record shows that
the trial court clearly indicated when it originally sentenced the defendant that it would
not in any event have stricken [the] . . . enhancement" even if it had such discretion.
(People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The record here contains no
such "clear" indication. We thus also remand for the court to consider—after
determining whether defendant is eligible for mental health diversion under section
1001.36—striking one or more of the serious felony priors that support the enhancements
imposed under section 667, subdivision (a)(1).
III
Motion to Vacate Fines, Assessments, and Fees
A. Defendant Was Required to Litigate this Issue in the Court of Appeal
As noted ante, defendant filed his motion to vacate in the trial court, while his
appeal in this court was pending. Defendant then provided this court with a courtesy
copy of his motion on the same day he filed his reply brief. On our own motion, we
obtained supplemental briefing on whether the trial court has jurisdiction under section
1237.2 to hear the motion to vacate, despite the pending appeal; and whether defendant,
in any event, was entitled to such relief. As noted, we have read and considered the
parties' supplemental briefing in deciding this issue.
16 In determining the proper interpretation of a statute, we begin with
the statutory language. " ' "As in any case involving statutory interpretation, our
fundamental task here is to determine the Legislature's intent so as to effectuate the law's
purpose." [Citation.] "We begin with the plain language of the statute, affording the
words of the provision their ordinary and usual meaning and viewing them in
their statutory context, because the language employed in the Legislature's enactment
generally is the most reliable indicator of legislative intent." [Citations.]
The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]
If, however, "the statutory language may reasonably be given more than
one interpretation, ' " 'courts may consider various extrinsic aids, including the purpose of
the statute, the evils to be remedied, the legislative history, public policy, and the
statutory scheme encompassing the statute.' " ' " [Citation.]' " (Fluor Corp. v. Superior
Court (2015) 61 Cal.4th 1175, 1198.)
As a general rule, "an appeal from an order [or judgment] in a criminal case
removes the subject matter of that order [or judgment] from the jurisdiction of the trial
court." (See Anderson v. Superior Court (1967) 66 Cal.2d 863, 865; see also § 1235,
subd. (b) ["An appeal from the judgment or appealable order in a felony case is to the
court of appeal for the district in which the court from which the appeal is taken is
located"].) However, section 1237.2 is an exception to this general rule. (See § 1237
[providing in part that "[a]n appeal may be taken by the defendant from . . . the
following: [¶] (a) "Except as provided in Sections 1237.1, 1237.2, and 1237.5, from a
final judgment of conviction" (italics added)].)
17 Effective January 1, 2016, Assembly Bill No. 249 (2015–2016 Reg. Sess.),
(hereafter Assembly Bill 249) added section 1237.2 (Stats. 2015, ch. 194, § 3) to the
Penal Code. This statute 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." (Italics added.)
Thus, before an appeal may "be taken," a defendant must first seek relief in the
trial court for any error in the imposition or calculation of fines, assessments, and fees,
provided that issue is the only one being appealed. (§ 1237.2; see also People v.
Alexander (2016) 6 Cal.App.5th 798, 800–801 (Alexander) [dismissing the defendant's
appeal from the imposition of a $6,000 victim restitution fine because 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"].)
Conversely, if issues other than the imposition or calculation of such fines,
assessments, and fees are being appealed, such as in the instant case, the limited
18 exception provided by section 1237.2 to section 1235 no longer applies. In this situation,
a defendant must seek relief in the Court of Appeal for any issue regarding the imposition
or calculation of fines, assessments, and fees, including, if necessary, by requesting leave
to file a supplemental brief. (See Cal. Rules of Court, rule 8.200(a)(4).) The Court of
Appeal then decides all the issues of the case, preventing piecemeal litigation in separate
forums. (See People v. Jordan (2018) 21 Cal.App.5th 1136, 1142 [recognizing that
section 1237.2 "mandate[s] that a defendant timely raise his [or her] penalty assessment
claims to conserve judicial resources and efficiently present claims in a single forum"].)
Although the language of section 1237.2 is unambiguous regarding when a
defendant is required to seek relief in the trial court in order to challenge the imposition
or calculation of fines, assessments, and fees, we note the legislative history of section
1237.2 further supports our conclusion on this issue.
An analysis by the Assembly Committee on Public Safety regarding Assembly
Bill 249, which led to the enactment of section 1237.2, discusses the reasons for the bill:
"According to the author, '[w]hen a fines and fees error is the sole issue on appeal, trial
and appellate courts incur significant costs and burdens associated with preparation of the
formal record on appeal and resulting resentencing proceedings. AB 249 would prohibit
a defendant from appealing a final conviction solely on the basis of an error in the
imposition or calculation of fines, penalty assessments, surcharges, fees, or costs, unless
the issue is raised in the trial court at the time of sentencing. AB 249 would not prohibit
defendants from seeking appeals on the grounds of any substantive concern, but rather
19 allow courts to handle the correction administratively.' " (Assem. Com. on Pub. Safety,
Rep. on Assem. Bill No. 249, as amended Mar. 17, 2015, p. 2, italics added.)
An analysis of the Assembly Committee on Appropriations regarding the fiscal
effect of Assembly Bill 249 notes the "[m]inor costs to the Trial Courts to review
requests for recalculations of fines, fees, and assessments, [are] likely more than offset by
savings to the Appellate Courts and Trial Courts by eliminating appeals" based on such
requests. (Assem. Com. on Approp., Rep. on Assem Bill No. 249, as amended Apr. 15,
2015, p. 1.)
Finally, an analysis of the Senate Committee on Public Safety further recognizes
the need for Assembly Bill 249 if the only issue to be appealed involves fines,
assessments, and fees: " 'The statutory scheme that governs the calculation of fines and
other monetary penalties in California criminal cases is vast, complex, and frequently
modified by the Legislature. As a result, appellate courts are often called upon to correct
the erroneous calculation of fines and other monetary penalties on appeal.'
"When a calculation error is the sole issue on appeal, trial and appellate courts
incur significant costs and burdens associated with preparation of the formal record on
appeal and resulting in resentencing proceedings." (Sen. Com. on Pub. Safety, Rep. on.
Assem Bill No. 249, as amended on Apr. 13, 2015, p. 3, italics added; see Alexander,
supra, 6 Cal.App.5th at p. 801 [noting section 1237.2 broadly applies to an error in the
imposition or calculation of fees and as such, "does not limit [its] reach only to situations
where the fee simply did not apply at all or was a result of mathematical error"].)
20 In sum, we conclude the limited exception provided by section 1237.2 did not
apply in this case because defendant's appeal is not limited to an error in the imposition
or calculation of fines, assessments, and fees. As such, we further conclude defendant
was required to submit that issue to this court for resolution, to be decided along with the
others he raised on appeal.
This, however, does not end our analysis on the issue. In his supplemental brief,
defendant alternately contended that, if the trial court lacked jurisdiction to hear and
decide the motion to vacate as a result of his pending appeal, this court should reach the
issue. (See Cal. Rules of Court, rule 8.200(a)(4) [noting no briefs other than an opening,
respondent's, and reply "may be filed except with the permission of the presiding
justice"].) We agree to treat his supplemental brief accordingly, and turn to the
"imposition" issue next.
B. Defendant Forfeited any Challenge to the Fines, Assessments, and Fees
Imposed by the Trial Court
Briefly, at sentencing the defense responded it had no objection to the fines,
assessments, and fees recommended by probation, which the trial court then imposed as
follows: a $10,000 restitution fine (§ 1202.4, subd. (b)(1)), and a suspended matching
parole revocation fine (§ 1202.45); an $80 court security fee (§ 1465.8); a $60 Immediate
21 Critical Needs Account fee (Gov. Code, § 70373); and a $154 Criminal Administration
Justice fee. (Gov. Code, § 29550.1.)5
As noted, defendant challenges the imposition of such fines, assessments, and fees
on the basis of inability to pay, relying on Dueñas, supra, 30 Cal.App.5th 1157. We find
his challenge unavailing and instead conclude he forfeited this claim of error.
Much has been written on Dueñas including by this court, making it unnecessary
to review here the facts of, or the issues decided in, that case. It is sufficient to note that,
unlike the probationer defendant in Dueñas who at her sentencing requested a separate
inability-to-pay hearing before any fines or assessments were imposed (Dueñas, supra,
30 Cal.App.5th at p. 1162), defendant in the instant case did not make such a request,
and, when asked by the trial court, even stated during sentencing he had no objection to
their imposition.
Moreover, the court in Dueñas imposed the statutory minimum restitution fine of
$150 on defendant Dueñas. (Dueñas, supra, 30 Cal.App.5th at p. 1162; § 1202.4, subd.
(b)(1).) In contrast, the court in the instant case imposed the statutory maximum fine of
$10,000 on defendant. (See § 1202.4, subd. (b)(1).) Pursuant to section 1202.4,
subdivisions (b)(1) and (c), the court is expressly prohibited from considering a
defendant's ability to pay in imposing a restitution fine unless the fine imposed exceeds
$300 for a felony, or $150 for a misdemeanor, conviction.
5 The court separately imposed on defendant a $300 restitution fine (§ 1202.4, subd. (b)(1)) and a suspended matching parole revocation fine in case No. SCD270678, which is not the subject of this appeal. 22 Thus, unlike defendant Dueñas, defendant here had the statutory right to object to
$9,700 of the $10,000 restitution fine imposed by the court, but did not do so. As such,
he has forfeited this claim of error on appeal. (See People v. Gutierrez (2019) 35
Cal.App.5th 1027, 1033 (Gutierrez) [noting that "even before Dueñas a defendant had
every incentive to object to imposition of a maximum restitution fine based on inability to
pay because governing law as reflected in the statute (§ 1202.4, subd[s]. (c) [& (d)])
expressly permitted such a challenge"]; People v. Frandsen (2019) 33 Cal.App.5th 1126,
1154 [noting before Dueñas, an objection to a fine above the statutory minimum would
not have been futile].)
We reach the same conclusion with respect to the remaining assessments and fees.
As a practical matter, if defendant chose not to object to the $10,000 restitution fine
based on inability to pay, he surely would not complain on similar grounds regarding an
additional $294 in fees (i.e., $80 + $60 + $154). (See Gutierrez, supra, 35 Cal.App.5th at
p. 1033.) In any event, unlike the probationer defendant in Dueñas, it is entirely
appropriate to consider the wages defendant may earn in prison on the inability-to-pay
issue. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay may
include a defendant's prison wages]; § 2085.5 [outlining how a restitution fine balance
may be collected from prison wages].)6
6 Defendant in his supplemental briefing argued that, if the issue of inability to pay is deemed forfeited, as we have concluded, he was deprived effective assistance of counsel based on counsel's failure to object to the section 1202.4 restitution fine. We decline on this record to reach this issue, without prejudice to defendant raising the ineffective assistance of counsel issue in a separate proceeding, if he so chooses. 23 DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the trial court
with directions to conduct a diversion eligibility hearing under section 1001.36. If the
court determines defendant qualifies for diversion under section 1001.36, then the court
may grant diversion. If defendant successfully completes diversion, then the court shall
dismiss the charges.
However, if the court determines defendant is ineligible for diversion, or
defendant does not successfully complete diversion, then the court shall reinstate
defendant's convictions and conduct a new sentencing hearing to consider whether to
exercise its newly conferred discretion under amended sections 667, subdivision (a), and
1385, subdivision (b), to dismiss the punishment for one or more of defendant's prior
serious felony convictions. In that circumstance, the court shall then prepare an amended
abstract of judgment and forward a certified copy of it to the Department of Corrections
and Rehabilitation.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.