People v. Robinson CA1/4 ( 2021 )

Filed 2/17/21 P. v. Robinson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A159799
v.
(Contra Costa County
MICHAEL RAY ROBINSON, Super. Ct. No. 5-172175-2)
Defendant and Appellant.
I.
Defendant Michael Ray Robinson pled no contest to one felony count of
assault on a peace officer with a semiautomatic firearm (Pen. Code, § 245,
subd. (d)(2))1 and one felony count of assault with a firearm (§ 245,
subd. (a)(2)); admitted a strike prior; and was sentenced to 16 years in state
prison.
At sentencing, the trial court ordered appellant to pay a $4,800
restitution fine (§ 1202.4); a $40 court operations assessment (§ 1465.8); and
a $30 conviction assessment (Gov. Code, § 70373). A parole revocation fine
(§ 1202.45) of $4,800 was imposed and stayed. There was no objection at
sentencing to the imposition of these fines and assessments.
1 Further undesignated statutory references are to the Penal Code.
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Robinson timely filed a notice of appeal from his judgment of conviction
on January 14, 2019. In that appeal, which is currently pending before this
court in a separate docket (No. A156273), the sole issue raised is whether,
under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the court erred
by imposing fines and fees without considering Robinson’s ability to pay.
On June 25, 2019, Robinson filed a motion in the trial court pursuant to
section 1237.2 arguing that the court should vacate or stay the fines and fees
imposed on him at sentencing pursuant to Dueñas. At a November 6, 2019
hearing on this motion, the trial court observed that the imposition of fines
upon appellant without an ability-to-pay hearing was not harmless because,
since Robinson is disabled (he has a prosthetic leg), “the amount of fines and
fees assessments exceed the amount that [he] could likely earn over the
course of his prison sentence.” The court nonetheless denied the motion
without prejudice, holding that it lacked jurisdiction under section 1170,
subdivision (d) to recall the sentence.
This appeal followed.
II.
Section 1237.2 is an exception to the rule that “the filing of a notice of
appeal ordinarily divests the trial court of jurisdiction over the case.” (People
v. Torres (2020) 44 Cal.App.5th 1081, 1086.) The statute provides: “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
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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 the sole issue on
appeal.” (§ 1237.2.)
“[A] primary purpose of section 1237.2 is to encourage and facilitate the
prompt and efficient resolution in the trial court of challenges to fines,
assessments, and fees that would otherwise be asserted on direct appeal . . .
by giving trial courts the power to resolve such challenges notwithstanding
the pending appeal.” (People v. Torres, supra, 44 Cal.App.5th at p. 1087.)
The trial court’s jurisdiction to correct such errors under section 1237.2 is
retained during the pendency of the defendant’s direct appeal from his or her
judgment of conviction. (Torres, at p. 1088.)
Another exception is found in section 1170, subdivision (d), which,
where a defendant has been sentenced to imprisonment, “allows the [trial]
court to recall a sentence within [120 days of the date of commitment to the
custody of prison or jail officials, as the case may be], and then to resentence,
for any reason that could influence the exercise of sentencing discretion
generally . . . .” (Dix v. Superior Court (1991) 53 Cal.3d 442, 448.) This broad
resentencing power survives the filing of a notice of appeal for only a brief
period of time (120 days from the date of commitment to prison or jail),
effectively preventing the trial court in most cases from using section 1170,
subdivision (d)(1), to render an appeal moot. (See People v. Scarbrough
(2015) 240 Cal.App.4th 916, 923 [“This rule protects the appellate court’s
jurisdiction by protecting the status quo so that an appeal is not rendered
futile by alteration.”].)
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There is a key distinction between sections 1170, subdivision (d)(1) and
section 1237.2. While section 1170, subdivision (d)(1) is limited in duration,
which as a practical matter prevents the trial court from mooting the appeal
by changing the sentence while an appeal is well under way, the trial court
may act pursuant to section 1237.2 for the duration of a pending appeal. Just
the opposite of section 1170, subdivision (d)(1), section 1237.2 is designed to
render a concurrent appeal moot where the sole issue on appeal is the
erroneous imposition or calculation of fines, which promotes efficiency.
Acknowledging the temporal breadth of a trial court’s jurisdiction
under section 1237.2, the Attorney General concedes that the trial court had
jurisdiction to entertain Robinson’s Dueñas motion in this case, despite the
pendency of appeal No. A156273. From this undisputed premise, we conclude
that the denial of the motion was an appealable order because it affected
Robinson’s substantial rights. (§ 1237, subd. (b); People v. Jordan (2018)
21 Cal.App.5th 1136, 1140.) The Attorney General declines to take that
logical step, arguing that the scope of the trial court’s jurisdiction under
section 1237.2 is limited to correction of computational errors or other minor
errors in a sentence. Robinson “was not asking the court to ‘correct minor
errors in the sentence,’ ” the Attorney General contends. “Rather, he was
attempting to raise an entirely new legal claim, i.e., that the trial court
should have considered his ability to pay when it imposed fines and fees,” an
argument he has the ability to raise—and should be limited to raising—in
appeal No. A156273.
We do not agree. “[S]ection 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
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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, 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, original italics.)
DISPOSITION
Without intimating any view of the merits of Robinson’s Dueñas
motion, the order denying the motion is reversed and the cause is remanded
for further proceedings.
STREETER, Acting P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
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