Opinion
H046807
04-23-2020
THE PEOPLE, Plaintiff and Respondent, v. JASMINE UNIQUE TUCKER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS151353A)
In 2016, defendant Jasmine Unique Tucker pleaded no contest to identity theft (Pen. Code, § 530.5, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years under various terms and conditions, including that she pay certain fines and assessments. In 2019, the trial court revoked defendant's probation and sentenced her to a two-year term in county jail. The trial court also imposed a probation revocation restitution fine that had previously been imposed and suspended in 2016.
All further statutory references are to the Penal Code unless stated otherwise.
Defendant appeals from the judgment in 2019. She contends that trial counsel provided ineffective assistance of counsel in 2016 when she failed to object to the trial court's imposition of fines and assessments without holding a hearing on her ability to pay them. The Attorney General contends that her claim is untimely and thus this court lacks jurisdiction to hear the appeal. We agree with the Attorney General and dismiss the appeal.
I. Factual and Procedural Background
In May 2015, defendant fraudulently charged $433.86 to a credit card at a store in Pacific Grove.
In August 2015, defendant was charged with identity theft (§ 530.5, subd. (a)). Defendant pleaded no contest to the charge on condition that she receive felony probation and no additional jail time.
In May 2016, the trial court suspended imposition of sentence and placed defendant on probation for three years. The trial court imposed, among other terms, a restitution fine of $300 (§ 1202.4, subd. (b)), a probation revocation restitution fine of $300, which was suspended and "not to be paid unless and until probation [was] revoked and not reinstated" (§ 1202.44), a court operations assessment of $40 (§ 1465.8, subd. (a)(1)), and a court facilities assessment of $30 (Gov. Code, § 70373).
In July 2016, the probation department filed a petition alleging that defendant had violated her probation by failing to obey all laws. Defendant had been arrested for several theft-related offenses. In August 2016, defendant failed to appear for arraignment on the petition.
On March 19, 2019, defendant admitted violating probation. The trial court terminated probation and imposed a two-year jail term. The trial court also imposed the previously suspended probation revocation restitution fine of $300 pursuant to section 1202.44.
On April 11, 2019, defendant filed a notice of appeal.
II. Discussion
Defendant notes that when the trial court imposed the fines and assessments at the sentencing hearing in May 2016, there was no requirement that it determine whether she was able to pay them. Relying on People v. Duenas (2019) 30 Cal.App.5th 1157, she contends that trial counsel rendered ineffective assistance at the sentencing hearing in 2019 when she failed to object to the trial court's imposition of the restitution fines and assessments without holding a hearing on her ability to pay them.
The Duenas court held that under the state and federal Constitutions, "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Duenas, supra, 30 Cal.App.5th at p. 1164.) As to the restitution fines, the Court of Appeal further held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
We conclude that the appeal must be dismissed, because it is untimely.
"A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' [Citation.] . . . An untimely notice of appeal is 'wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.' [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all." (People v. Mendez (1999) 19 Cal.4th 1084, 1094.)
A defendant may appeal from an order granting probation, which is considered a final judgment, even when the trial court has suspended imposition of sentence. (§ 1237, subd. (a) ; People v. Douglas (1999) 20 Cal.4th 85, 91 ["an order suspending imposition of sentence and granting probation is considered a final judgment (§ 1237, subd. (a))"].) A notice of appeal from a probation order must ordinarily be filed within 60 days after it is made. (See Cal. Rules of Court, rule 8.308(a).)
Section 1237, subdivision (a) provides in relevant part: "An appeal may be taken by the defendant from . . . [¶] (a) . . . a final judgment of conviction. . . . [A]n order granting probation . . . shall be deemed to be a final judgment within the meaning of this section."
Defendant argues that the appeal is timely because when the trial court sentenced her in March 2019, it imposed the previously suspended restitution fine of $300. She also argues that since the law changed under Duenas, supra, 30 Cal.5th 1157, she could "challenge the sentence imposed by the court . . . under the newly amended law at the time of her sentencing."
When the trial court suspends imposition of sentence before placing a defendant on probation, it has "full sentencing discretion [up]on revoking probation" (People v. Howard (1997) 16 Cal.4th 1081, 1087), and the defendant need not challenge the yet-to-be-imposed sentence on appeal from the order granting probation. However, the trial court does not retain the same flexibility as to fines and assessments. For example, section 1202.4, subdivision (b) requires the trial court to impose a restitution fine. "[T]here is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction." (People v. Chambers (1998) 65 Cal.App.4th 819, 822.) Similarly, section 1202.44 provides: "In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202 .4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record." (Italics added.) The same reasoning applies to the court operations assessment (§ 1465.8) and the court facilities assessment of $30 (Gov. Code, § 70373), which must also be imposed on conviction. (See § 1465.8, subd. (a)(1) ["an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense"]; Gov. Code, § 70373, subd. (a)(1) ["an assessment shall be imposed on every conviction for a criminal offense"].) Thus, when the trial court placed defendant on probation in 2016, it was statutorily required to impose all the fines and assessments that she challenges in the present appeal. (See §§ 1202.4, 1202.44, 1465.8; Gov. Code, § 70373.)
Pursuant to section 1237, the 2016 probation order was a final judgment of conviction for purposes of taking an appeal, and defendant was required to challenge the trial court's imposition of fines and assessments by appealing from that order. Since she failed to do so, she cannot challenge these fines and assessments in the present appeal. Accordingly, this appeal must be dismissed as untimely.
Defendant also argues that she was deprived of fundamental constitutional rights when the trial court imposed the fines and assessments without determining whether she had the ability to pay them. Relying on People v. Vera (1997) 15 Cal.4th 269 (Vera), she claims such rights are not subject to the traditional forfeiture rules. Vera does not support defendant's claim. In Vera, the California Supreme Court stated that "[a] defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights. [Citations.]" (Vera, at pp. 276-277.) At issue in Vera was whether the defendant had forfeited his statutory right to a jury trial on allegations that he had suffered a prior prison term when he failed to object in the trial court. (Vera, at p. 278.) The Vera court did not consider whether a court had appellate jurisdiction when the defendant's notice of appeal was untimely.
Vera, supra, 15 Cal.4th 269 was disapproved on other grounds in People v. French (2008) 43 Cal.4th 36, 47, fn. 3.)
III. Disposition
The appeal is dismissed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.