Opinion
H046552
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. GREGORY STESHENKO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Cruz County Super. Ct. No. 18CR03415)
I. INTRODUCTION
Appellant Gregory Steshenko was charged with two felony counts. The trial court appointed counsel and assessed appellant a $50 registration fee in connection with the appointment. (See Pen. Code, § 987.5, subd. (a).) A few days before trial, on motion of the prosecution, the trial court dismissed the case. Appellant filed a motion for an order refunding the $50 registration fee. The trial court denied the motion.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant contends that the trial court erred in denying his motion for a refund of the $50 registration fee. For reasons that we will explain, we determine that the order is not appealable and therefore we will dismiss the appeal.
II. BACKGROUND
In June 2018, appellant was charged by complaint with two felony counts. At his arraignment, he was appointed a public defender and assessed a $50 registration fee in connection with the appointment of counsel. (See § 987.5, subd. (a).)
Section 987.5, subdivision (a) states in part: "Every defendant shall be assessed a registration fee not to exceed fifty dollars ($50) when represented by appointed counsel." Subdivision (e) provides that "[t]his section shall be operative in a county only upon the adoption of a resolution or ordinance by the board of supervisors electing to establish the registration fee and setting forth the manner in which the funds shall be collected and distributed. Collection procedures, accounting measures, and the distribution of the funds received pursuant to this section shall be within the discretion of the board of supervisors." (§ 987.5.) --------
After a preliminary examination, appellant was held to answer. In October 2018, appellant was charged by first amended information with fraudulently receiving welfare benefits (Welf. & Inst. Code, § 10980, subd. (c)(2); count 1) and committing perjury by false application for aid (§ 118, subd. (a); count 2).
In November 2018, a few days before the scheduled trial date, the prosecutor moved to dismiss based on insufficient evidence. The prosecutor explained that the necessary witnesses were out of state and could not be procured in time. The prosecutor intended to refile the charges when the witnesses were available. The trial court found good cause to grant the motion and dismissed the case.
In December 2018, appellant filed a petition seeking a finding of factual innocence. (See § 851.8, subd. (c).) He also filed a motion for an order refunding the $50 registration fee that he was assessed when he was appointed counsel. Appellant contended that he was entitled to a refund of the fee based on the due process clause of the federal Constitution and Nelson v. Colorado (2017) ___U.S.___ [137 S.Ct. 1249, 197 L.Ed.2d 611].
The prosecutor opposed the petition for a finding of factual innocence, contending that appellant failed to meet his burden of showing that no reasonable cause existed to believe he committed the offenses for which he was arrested.
On January 11, 2019, the trial court denied appellant's (1) petition for a finding of factual innocence and (2) motion for a refund of the registration fee. A few days later, appellant filed a notice of appeal.
III. DISCUSSION
Appellant contends the trial court erred in denying his motion for a refund of the registration fee. He also argues that the order is appealable under section 1237, subdivision (b), because the trial court's order, which was made after a judgment of dismissal, affects his substantial rights.
The Attorney General contends that the order is not appealable because it does not affect appellant's substantial rights, and therefore the appeal should be dismissed. Regarding the substance of appellant's appeal, the Attorney General does "not take a position on the propriety of the trial court's" order.
"The right to appeal is statutory only, and a party may not appeal a trial court's judgment, order or ruling unless such is expressly made appealable by statute. [Citations.] Appeals by criminal defendants are governed by section 1237." (People v. Loper (2015) 60 Cal.4th 1155, 1159 (Loper).) Section 1237, subdivision (b) authorizes a defendant to appeal "[f]rom any order made after judgment, affecting the substantial rights of the party."
Section 1237 does not define the term "substantial rights." Moreover, the California Supreme Court has observed that "cases do not provide a comprehensive interpretation of the term 'substantial rights' as used in section 1237, subdivision (b)." (Loper, supra, 60 Cal.4th at p. 1161, fn. 3.) In analyzing that term, however, the court has stated that "a postjudgment order 'affecting the substantial rights of the party' (§ 1237, subd. (b)) does not turn on whether that party's claim is meritorious, but instead on the nature of the claim and the court's ruling thereto." (Teal v. Superior Court (2014) 60 Cal.4th 595, 600, fn. omitted.)
Courts have determined that a defendant's "substantial rights" within the meaning of section 1237, subdivision (b) include personal liberty interests that are implicated by, for example, compassionate release from prison due to a terminal illness, resentencing under the Three Strikes law, and the revocation of probation. (Gray v. Superior Court (2016) 247 Cal.App.4th 1159, 1164 (Gray) [citing cases].) "In addition, a criminal defendant's obligation to pay victim restitution for losses caused by the defendant's criminal conduct [citations] has been said to affect the defendant's substantial rights. [Citations.]" (Id. at pp. 1164-1165.)
"By contrast, courts generally do not find a defendant's substantial rights are implicated when a postjudgment order merely deprives the defendant of personal property." (Gray, supra, 247 Cal.App.4th at p. 1165.) For example, in People v. Tuttle (1966) 242 Cal.App.2d 883, the defendant was convicted of forgery. (Id. at p. 884.) His subsequent motion for the return of personal property, including money, cigarettes, and liquor, that had been taken by the police upon his arrest was denied by the trial court. (Ibid.) On appeal, the appellate court determined that, even as to property that was used as an exhibit in the criminal action, the trial court's order denying the release of the property did "not affect any substantial right which was the subject of [the criminal] action." (Id. at p. 885.) The court reasoned that "[t]he proceeding resulting in such an order is entirely separate from the criminal proceeding as such because it does not involve in any manner the charge against defendant or his rights as affected by that charge." (Ibid.; see People v. Gershenhorn (1964) 225 Cal.App.2d 122, 125 [motion for return of property improperly seized under a void warrant or without a warrant "is a separate procedure from the criminal trial" and "an order of denial is not among any of the matters for which an appeal is provided by section 1237 of the Penal Code"]; People v. Hopkins (2009) 171 Cal.App.4th 305, 308.)
Here, the trial court denied appellant's motion for a refund of the $50 registration fee that was assessed pursuant to section 987.5. Appellant contends that, unlike the above-cited cases in which the motions for return of property resulted in nonappealable orders, his motion resulted in an appealable order. In support of this argument, appellant primarily relies on People v. Beck (1994) 25 Cal.App.4th 1095 (Beck).
In Beck, the defendant pleaded guilty to cultivation of marijuana and then moved for return of firearms. (Beck, supra, 25 Cal.App.4th at p. 1097.) The trial court denied the motion, apparently based on former section 12028, which provided that a firearm used in the commission of a crime was a nuisance and subject to confiscation and destruction. (Beck, supra, at p. 1097.)
The appellate court determined that a ruling based on former section 12028 "is appealable as an order after judgment." (Beck, supra, 25 Cal.App.4th at p. 1104.) The court explained that former section 12028 "involve[s] an issue 'affect[ing a] substantial right which was a subject of [the criminal] action.' (People v. Tuttle, supra, 242 Cal.App.2d 883, 885.) By contrast to a motion for return of property--either nonstatutory or pursuant to the provisions for return of exhibits--there is no 'separate' proceeding under [former] Penal Code section 12028. Its operation is automatic, upon conviction of an offense involving use of a firearm. Moreover, there is no separate hearing or proceeding precisely because the issue (use of the firearm in the commission of the offense) was an issue in the criminal trial. Thus, the confiscation provision of [former] Penal Code section 12028 does 'involve . . . the charge against defendant or his rights as affected by that charge.' (People v. Tuttle, supra, 242 Cal.App.2d 883, 885.) The deprivation of firearms used in the commission of a convicted offense is one of the rights of the defendant automatically 'affected by [the] charge.' " (Beck, supra, at p. 1104.)
In this case, appellant sought a refund of the $50 registration fee that he had previously paid pursuant to section 987.5. Appellant contends that "the property sought to be returned is integral to the criminal proceeding." He argues that he "was ordered by the court in the criminal proceeding to pay the fee so that [he] could exercise his constitutional right to counsel. The fee was paid before the case was dismissed and would never be refunded unless [he] made a motion for return of the monies. Moreover, as in Beck, the dismissal of this appeal would result in the deprivation of property without due process of law."
Whether the property sought to be returned was "integral to the criminal proceeding," as argued by appellant, is not the test for determining whether the order denying return of property is appealable. Indeed, in Tuttle, the order was deemed nonappealable, even as to property that was admitted into evidence. (Tuttle, supra, 242 Cal.App.2d at pp. 884, 885.)
The relevant inquiry instead is whether the trial court's order "affect[s] any substantial right which was a subject of [the criminal] action," meaning that the proceeding resulting in the order "involve[s] in any manner the charge against defendant or his rights as affected by that charge." (Tuttle, supra, 242 Cal.App.2d at p. 885.) In this case, the trial court's order refusing appellant a refund of the $50 registration fee did "not affect any substantial right which was a subject of [the criminal] action," nor did the hearing concerning whether appellant was entitled to the refund "involve in any manner the charge against [appellant] or his rights as affected by that charge." (Ibid.) Likewise, the propriety of assessing the registration fee against appellant under section 987.5, subdivision (a), or the right to a refund of the fee, would not have been "an issue in the criminal trial" (Beck, supra, 25 Cal.App.4th at p. 1104) against appellant. That the trial court's refusal to refund the registration fee implicated, according to appellant, his federal due process right does not change this analysis.
We conclude that the trial court's order denying appellant's motion to refund the registration fee is not an appealable order.
IV. DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.