Opinion
B298282
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. DERRICK WRIGHT, Defendant and Appellant.
Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Chief Assistant Attorney General, David E. Madeo and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA139004) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael J. Shultz, Judge. Dismissed. Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Chief Assistant Attorney General, David E. Madeo and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
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In May 2017 a jury convicted Derrick Wright of various crimes, and the trial court sentenced him to a prison term of 39 years four months. The court also imposed six $30 court facilities assessments under Government Code section 70373, six $40 court operations assessments under Penal Code section 1465.8, and a $10,000 restitution fine under section 1202.4, subdivision (b). The court also imposed and suspended a $10,000 parole revocation fine under section 1202.45. Regarding the two $10,000 fines, the court stated: "The court is making the finding that [Wright] either has the ability to pay or will have the ability to pay over the 42 years that he serves in the state prison." In November 2018 we affirmed Wright's conviction but remanded for resentencing. (People v. Wright (Nov. 19, 2018, B282932) [nonpub. opn.].)
Undesignated statutory references are to the Penal Code.
In January 2019 this court decided People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held "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 . . . section 1465.8 and Government Code section 70373." (Dueñas, at p. 1164.) This court also held that, although "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." (Dueñas, at p. 1164; see People v. Belloso (2019) 42 Cal.App.5th 647 (Belloso); People v. Castellano (2019) 33 Cal.App.5th 485, 489 (Castellano).)
Our holding in Dueñas applies to the parole revocation fines as well because section 1202.45, subdivision (a), states the court shall impose a parole revocation restitution fine "in the same amount as that imposed" under section 1202.4, subdivision (b). --------
In May 2019 the trial court resentenced Wright to a prison term of 34 months four months. Wright did not raise, and the court did not address, any issue regarding the assessments and fines.
Wright appealed again. Citing Dueñas, supra, 30 Cal.App.5th 1157, Wright asks this court to strike the assessments and fines in the absence of evidence he has the ability to pay them. Wright also asks this court to stay execution of the restitution fine until there is evidence Wright can afford to pay it.
Under section 1237.2, however, we do not have jurisdiction to consider Wright's appeal. That statute provides, in part: "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 statute applies when "defendant claims the trial court wrongly imposed fines, penalty assessments, surcharges, fees, or costs without having first presented the claim in the trial court, and by the terms of the statute, the trial court retains jurisdiction pending appeal to correct any error." (People v. Hall (2019) 39 Cal.App.5th 502, 504; cf. People v. Torres (2020) 44 Cal.App.5th 1081, 1088 [defendant may not challenge the imposition of fines, fees, and assessments under section 1237.2 when "the defendant's direct appeal has been concluded and the judgment has long been final" because "the trial court jurisdiction created by section 1237.2 is jurisdiction that exists 'pending appeal'"].) Section 1237.2 states that it "only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal."
Wright did not present his due process claim under Dueñas in the trial court. Because his appeal has not become final, the trial court retains jurisdiction to hear a motion by Wright that the trial court violated his constitutional rights under Dueñas, Castellano, and Belloso by imposing statutory assessments and fines without giving Wright an opportunity to show he does not have the ability to pay them. (See People v. Hall, supra, 39 Cal.App.5th at p. 504.)
Wright argues section 1237.2 does not apply and People v. Hall is distinguishable because the trial court, in imposing the maximum restitution fine of $10,000, stated Wright either had or will have the ability to pay the fine, which, according to Wright, means "it would have been futile to argue that he lacked the ability to pay the $420 in assessments that prompted the constitutional, due process arguments under Dueñas . . . ." Section 1237.2, however, does not have a futility exception. It states that where, as here, the defendant has not raised the issue in the trial court, "[a]n appeal may not be taken."
The appeal is dismissed.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.