People v. Delgado CA4/2 ( 2021 )

Filed 6/28/21 P. v. Delgado CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074677
v. (Super.Ct.No. SWF1502109)
HECTOR DELGADO, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Kelly L. Hansen, Judge.
Dismissed.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Matthew Rodriquez, Acting Attorney General,
Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Charles C. Ragland, Scott Taylor and Laura Baggett, Deputy Attorneys General,
for Plaintiff and Respondent.
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PROCEDURAL HISTORY1
On November 6, 2015, a complaint charged defendant and appellant Hector
Delgado, Jr. with inflicting corporal injury resulting in a traumatic condition upon Jane
Doe under Penal Code section 273.5 (count 1).
On May 5, 2016, defendant pled guilty to count 1 and admitted that the factual
basis for his plea was based on the complaint. The court sentenced defendant to three
years of formal probation and ordered that defendant enroll and complete a 52-week
domestic violence program.
On February 5, 2020, after numerous probation violations, the court sentenced
defendant to three years in prison. The court also imposed various fines and fees.
On February 6, 2020, defendant filed a timely notice of appeal.
On March 16, 2021, this court requested supplemental briefing from the parties
addressing the following issue: “Should this appeal be dismissed under Penal Code
1237.2?” The parties have submitted supplemental briefing, which we have considered
in deciding this case.
DISCUSSION
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant appeals the
judgment solely on the grounds the trial court imposed the fines and fees at issue without
determining he had the ability to pay them. Defendant contends that “the trial court erred
by imposing fines and fees absent a hearing regarding appellant’s ability to pay which
1 Because defendant raises a sentencing issue on appeal, a statement of facts is not
included. Relevant facts will be discussed as necessary.
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violates due process and the excess fines clause of the Eighth Amendment.” (All caps.
omitted.)
In this case, the trial court imposed a $300 restitution fine under Penal Code
section 1202.4, subdivision (b); a suspended $300 parole revocation fine under Penal
Code section 1202.45, subdivision (c); a $40 court operations assessment fee under Penal
Code section 1465.8, subdivision (a)(1); and a $30 criminal conviction assessment fee
under Government Code section 70373. Defense counsel requested that the court waive
any fines and fees “due to the length of [defendant’s] incarceration.” The court replied,
“I’m just imposing the minimum mandatory. It could have been higher, but I’m not
imposing the booking fees, the probation costs, none of that. It’s just the minimum
mandatories.” Defense counsel responded, “Thank you.” The trial court made no
determination regarding defendant’s ability to pay these fines and fees.
Under Penal Code section 1237.2, “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
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calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on
appeal.” (Italics added.)
As our colleagues in the Second District have noted, “section 1237.2 broadly
applies to an error in the imposition or calculation of fees. The plain language of the
statute ‘does not limit [its] reach only to situations where the fee simply did not apply at
all or was a result of mathematical error.’ [Citation.] Section 1237.2 applies any time a
defendant claims the trial court wrongly imposed fines, penalty assessments, surcharges,
fees, or costs without having first presented the claim in the trial court.” (People v. Hall
(2019) 39 Cal.App.5th 502, 504.)
Because the sole issue in this appeal concerns the imposition of fines and fees, and
defendant failed to present this issue in the trial court, Penal Code section 1237.2 compels
that we dismiss the appeal. (People v. Hall, supra, 39 Cal.App.5th at p. 505 [applying
section 1237.2 and dismissing single-issue appeal in which the defendant alleged a
Dueñas violation]; cf. People v. Jenkins (2010) 40 Cal.App.5th 30, 38, review granted
Nov. 26, 2019, S258729, review dismissed Jul. 29, 2020 [a defendant need not seek relief
in the trial court first “if issues other than the imposition or calculation of such fines,
assessments, and fees are being appealed”].)
In response to our request for additional briefing, defendant contends that Penal
Code section 1237.2 does not apply because defendant “did object at the time of
sentencing to the court’s imposition of fines and fees.” We are not persuaded. In this
case, as noted above, at the conclusion of the sentencing hearing, defense counsel asked
the court to “waive any fines and fees due to the length of incarceration.” Defendant did
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not raise an objection based defendant’s ability to pay. In response to defendant’s
objection, the trial court noted that it was “just imposing the minimum mandatories.”
Then defense counsel responded, “Thank you.” There was no discussion regarding
defendant’s ability to pay the fines and fees. Moreover, defendant did not file any motion
to challenge the imposition of fines and fees.
Therefore, because defendant is required to seek relief in the trial court in the first
instance before pursuing this single-issue appeal under Penal Code section 1237.2,
defendant’s appeal is dismissed.
DISPOSITION
The appeal is dismissed, without prejudice to further appeal once defendant has
appropriately addressed this issue in the trial court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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