Opinion
H047371
10-19-2021
THE PEOPLE, Plaintiff and Respondent, v. THAM BUI, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1502175
ELIA, ACTING P.J.Defendant Tham Bui appeals from the trial court's denial of his request under Penal Code section 1237.2 to modify the fines and fees assessed in his criminal case. The trial court determined that it was without jurisdiction to modify the fines and fees, and it denied the request. After the appeal was filed, the Attorney General moved to dismiss the appeal. We ordered that the motion to dismiss be considered with the appeal. We conclude that the trial court lacked jurisdiction to consider defendant's request under section 1237.2. Because the trial court lacked jurisdiction, its order is not an appealable order. We therefore grant the motion to dismiss the appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
The Attorney General and defendant have also moved for this court to take judicial notice of the record in defendant's prior appeal People v. Bui (March 25, 2019, H044430) [nonpub. opn.] (H044430) and of the legislative history of section 1237.2. We grant the unopposed requests for judicial notice. (Evid. Code, §§ 452, subd. (a)-(d), 459; Cal. Rules of Court, rule 8.54(c).)
I. Background
As described in greater detail in case No. H044430, defendant was convicted by jury trial of (count 1) conspiracy to commit murder (§§ 182, 187, subd. (a)); (count 2) first degree burglary (entry of inhabited dwelling with intent to commit murder) (§§ 459, 460, subd. (a)); (count 3) assault with a deadly weapon (§ 245, subd. (a)(1)); (count 4) arson of an inhabited structure (§ 451, subd. (b)); (count 5) first degree burglary (§§ 459, 460, subd. (a)); and (count 6) arson of property (§ 451, subd. (d)). The trial court found that defendant had two prior strike convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), two prior serious felony convictions (§ 667, subd. (a)), a prior prison term within the meaning of section 667.5, subdivision (a), and two prior prison terms within the meaning of section 667.5, subdivision (b). On January 13, 2017, the trial court sentenced defendant to an indeterminate term of 155 years to life consecutive to a determinate term of 48 years in state prison. (H044430 at pp. 1-2.)
As to counts 2 and 5, the jury found true that a person not an accomplice was present in the residence during the commission of the offenses (§ 667.5, subd. (c)(21)). As to count 4, the jury found true that the arson was committed by use of a device designed to accelerate the fire (§ 451.1, subd. (a)(5)). (H044430 at pp. 1-2.)
The court also assessed a $10,000 restitution fund fine, a parole revocation restitution fine of $10,000 (which was suspended pursuant to section 1202.45), a $240 court operations fee (§ 1465.8), a $180 court facilities fee (Gov. Code, § 70373), a $129.75 criminal justice administration fee (Gov. Code, § 29550 et seq.), and a $10 crime prevention fine (§ 1202.5, subd. (a)) and $31 penalty assessment (Gov. Code, § 76000.5, subd. (a)(1)).
Defendant appealed, arguing that the trial court erred by denying his motion to suppress evidence, by admitting a recorded conversation that included defendant, and by giving an instruction on evaluating identification testimony. He also raised ineffective assistance claims, a claim of cumulative error, and sentencing claims. (H044430 at p. 2.) In a decision issued on March 25, 2019, this court rejected the substantive claims, but found merit in the claims of sentencing error. (Id. at p. 3.) Accordingly, this court modified the sentence, resulting in a sentence of 125 years to life consecutive to 41 years, and affirmed the judgment as modified. (Id. at p. 66.)
Defendant also filed a petition for writ of habeas corpus (In re Tham Bui, H046438), which was summarily denied.
Defendant filed a petition for review, and on July 10, 2019, the California Supreme Court denied review. On July 11, 2019, this court issued the remittitur. On November 7, 2019, following a hearing, the trial court issued a modified abstract consistent with this court's disposition of the appeal.
On January 25, 2019, while the appeal was pending, defendant filed a letter in the trial court requesting that the trial court strike certain fines and fees and reduce the restitution imposed using its authority under section 1237.2. The request noted that defendant has "no assets or income," "was appointed counsel in this court and in the court of appeal," and was "indigent," and "there has been no showing he has an ability to pay the fines and fees."
On May 1, 2019, the trial court issued an order denying the request to reconsider his fines and fees under section 1237.2. The court found that it did not have "jurisdiction to correct his fines and fees while his case is on appeal." The court observed that defendant's "briefs on appeal raised several issues, including alleged trial court error in denying [his] motion to suppress, in the admission of evidence, and in instructing the jury, but not the fines and fees issue he raises now." Thus, the court concluded that "section 1237.2 did not apply to furnish this court with jurisdiction to reconsider his fines and fees." Defendant appealed.
II. Discussion
"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.'" (People v. Jenkins (2019) 40 Cal.App.5th 30, 37 (Jenkins).) Thus, "once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence." (People v. Torres (2020) 44 Cal.App.5th 1081, 1084.) "If the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed." (Ibid.)
"[S]ection 1237.2 is an exception to this general [jurisdictional] rule." (Jenkins, supra, 40 Cal.App.5th at p. 37.) Section 1237.2 provides in full: "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." (Italics added.)
Thus, section 1237.2 is an exception to the general rule that a notice of appeal divests the trial court of jurisdiction in a case. It permits the trial court to retain jurisdiction after a notice of appeal has been filed to correct errors involving the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs. However, the final sentence of the statute makes clear that this exception applies only when the imposition or calculation of the challenged fines or fees is "the sole issue on appeal." (§ 1237.2; see also People v. Jordan (2018) 21 Cal.App.5th 1136, 1141 [the exception in section 1237.2 "applies only to cases where the issues of 'fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal' "]; accord, People v. Clark (2021) 67 Cal.App.5th 248, 256 (Clark).)
Put another way, "if issues other than the imposition or calculation of such fines, assessments, and fees are being appealed, . . . the limited exception provided by section 1237.2 . . . no longer applies." (Jenkins, supra, 40 Cal.App.5th at p. 38; accord, Clark, supra, 67 Cal.App.5th at p. 256.) "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 . . . . The Court of Appeal then decides all the issues of the case, preventing piecemeal litigation in separate forums." (Jenkins, supra, at p. 38.)
Here, the plain language of section 1237.2 precluded the trial court from considering defendant's request to reconsider fines and fees because the issue of the imposition or calculation of fines, assessments, and fees was not the "sole issue on appeal." (§ 1237.2) As the trial court observed, defendant's direct appeal raised issues including suppression of evidence, admission of evidence, and jury instructions. Because of this, defendant was obliged to "seek relief in the Court of Appeal" during his original appeal from the judgment "for any issue regarding the imposition or calculation of fines, assessments, and fees . . . ." (Jenkins, supra, 40 Cal.App.5th at p. 38.)
In sum, the trial court in this case lacked jurisdiction to consider defendant's request to modify his fines and fees. Given that lack of jurisdiction, the court's order denying the motion is not appealable.
II. Disposition
The appeal is dismissed.
WE CONCUR: BAMATTRE-MANOUKIAN, J., LIE, J.