Filed 1/9/20 P. v. Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOUTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

NASIM JOHNSON,

Defendant and Appellant.

D074954

(Super. Ct. No. SCN389397)

APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed.

Stephanie M. Adraktas, under the appointment by Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Donald W. Ostertag and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.

Two months before the decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) was filed, defendant Nasim Johnson was sentenced to probation after she was convicted of unlawfully taking and driving a motor vehicle. Various fines and fees totaling $563 were also imposed. At sentencing, her trial counsel made no objection based on Johnson’s inability to pay those fines and fees. In this single-issue appeal, however, Johnson now relies on Dueñas in seeking to challenge the imposition of the fines and fees without any finding that she was or would ever be able to pay them.

The People contest Johnson’s argument on several levels. They first contend this court cannot consider her argument because Johnson failed to comply with Penal Code section 1237.2 by first seeking relief in the trial court. Even if we address it, they maintain Johnson forfeited her argument by failing to raise it at sentencing. Finally, they take issue with some doctrinal foundations of Dueñas even as they disclaim any intent to collect certain of the assessments from someone with no ability to pay.

We disagree with the People’s first argument but accept the second, making it unnecessary to comment on the third. Ultimately, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In what can only be described as a strange set of circumstances, a man parked his car but left the engine running as he went to pick up some papers at the Fallbrook fire station. Johnson, barefoot with short, unevenly cut hair and wearing pajamas, approached the car, got into it and began to back out of the parking space. Seeing what was happening, the man yelled at Johnson to stop, banged on the car window, and opened the driver’s side door. Johnson stopped the car, apologized, got out and asked the man for a ride. When he said no, she walked off down the road.

Johnson waived her right to a jury and was convicted in a bench trial of unlawfully taking and driving a vehicle. (Veh. Code, § 10851, subd. (a).) The court suspended imposition of Johnson’s sentence and placed her on formal probation for three years with certain terms and conditions. It also imposed various fines and fees.

DISCUSSION

Relying on Dueñas, supra, 30 Cal.App.5th 1157, Johnson contends the trial court should not have imposed any fines or fees as part of the judgment without first determining whether she had the ability to pay them.

1. Penal Code Section 1237.2

Section 1237.2 was added to the Penal Code by Assembly Bill No. 249 in 2015. (Stats. 2015. ch. 194, § 3.) In specified circumstances, the section limits the ability of criminal defendants to appeal certain issues related to fines and fees unless they first seek relief in the trial court: “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.” Significantly, the statute provides for limited concurrent jurisdiction in the trial and appellate courts, allowing the trial court to “retain[] 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.” Section 1237.2 “only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal.” This statutory requirement to first seek relief in the trial court governs single-issue Dueñas challenges asserting an inability to pay fines and fees. (People v. Hall (2019) 39 Cal.App.5th 502, 504; compare People v. Jenkins (2019) 40 Cal.App.5th 30, 38 [a defendant need not request correction in the trial court “if issues other than the imposition or calculation of such fines, assessments, and fees are being appealed”], review granted Sep. 18, 2019, S258729.)

Although the People rely on section 1237.2 in arguing that the appeal must be dismissed, Johnson points us to an informal letter-request submitted by her counsel to the trial judge on June 8, 2019. This letter cites both Dueñas as well as the United States Supreme Court’s recent decision in Timbs v. Indiana (2019) ___ U.S. ___ [139 S.Ct. 682], arguing that the imposition of fines and fees without a finding of Johnson’s ability to pay them violates her due process rights and amounts to an excessive fine within the meaning of the Eighth Amendment.

Johnson’s informal letter-request satisfies the requirements of section 1237.2. By specifically giving the trial court jurisdiction to consider such requests after the filing of the notice of appeal, the statute contemplates the exercise of concurrent jurisdiction by trial and appellate courts in this narrow area. (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 249 (2015‒2016 Reg. Sess.) Mar. 17, 2015, p. 5.) Here, appellate counsel discovered the asserted error after the filing of the Dueñas opinion while she was preparing appellant’s opening brief. The informal written request was submitted to the trial judge shortly thereafter and—critically—well before the filing of respondent’s brief.

Moreover, the fact that the trial court has failed to act on Johnson’s request does not affect our ability to consider her claim. Section 1237.2 statute merely requires that the defendant “first present[] the claim in the trial court.” The superior court has had more than a reasonable period of time to act. We treat its failure to do so as effectively a denial of Johnson’s request.

2. Forfeiture

The trial court imposed a total of $563 in fines and fees, including: (1) a $300 restitution fine (§ 1202.4, subd. (b)); (2) a $40 court operations fee (§ 1465.8); (3) a $30 criminal conviction fee (Gov. Code, § 70373); (4) a $154 criminal justice administration fee (Gov. Code, § 29550); and (5) a $39 theft fine (§ 1202.5). A $300 mandatory supervision revocation fine (§ 1202.45, subd. (b)), was suspended and an additional fine of $820 pursuant to section 1465.7, subdivision (a) was deemed satisfied by Johnson’s time in custody. Of the $563 actually imposed, the $300 minimum restitution fine is by statute assessed without regard to a defendant’s ability to pay. (§ 1202.4, subd. (c).) As to the $40 court operations fee and the $30 criminal conviction fee, “[b]oth Government Code section 70373 and Penal Code section 1465.8 are silent as to the consideration of a defendant’s ability to pay in imposing the assessments.” (Dueñas, supra, 30 Cal.App.5th at p. 1166.) On the other hand, defendants are only required to reimburse the criminal justice administration fee and theft fine if they have an ability to pay. (Gov. Code, § 29550, subd. (d)(2); Pen. Code, § 1202.5, subd. (a).)

Johnson did not object to any of the fines and fees imposed by the trial court based on an inability to pay or otherwise. Even if we assume that the court operations fee and criminal conviction fee are imposed without regard to a defendant’s ability to pay, she had the opportunity and more-than-sufficient incentive to challenge both the criminal justice administration fee and theft fine—$193 and 34 percent of the $563 total. A 34 percent reduction of her financial burden would be substantial by any measure, yet no objection was raised. Under these circumstances her failure to object forfeits the ability to pay argument. (See, e.g., People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)

DISPOSITION

The judgment is affirmed.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.