Filed 12/31/19 P. v. Johnson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

DENNIS JOHNSON,

Defendant and Appellant.

C086748

(Super. Ct. No. 15F07494)

Appointed counsel for defendant Dennis Johnson asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We asked the parties to file supplemental letter briefs addressing the applicability of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to this case. Having reviewed the record and the supplemental briefs, we will remand the matter to permit a hearing on defendant’s ability to pay the imposed fines and assessments. We will otherwise affirm the judgment.

I

P.H. went to defendant’s apartment to speak with R.G. about money owed for the purchase of a dog. Defendant answered the door, said that R.G. was not there, and shut the door. P.H. knocked again and explained that she wanted the money or the dog. Defendant gave her the dog and she left without seeing R.G. P.H. picked up her girlfriend M.F. and they went back to defendant’s neighborhood to retrieve a bag from a person who lived near defendant.

As P.H. was parking her car, she noticed defendant quickly driving toward her in a dark SUV. Defendant’s Ford Expedition drove into P.H.’s Acura sedan. P.H. tried to drive away, but defendant followed her, boxed her in, and struck her car again. P.H. declined medical treatment but had pain in her back and neck.

Defendant testified that when he told P.H. that R.G. was not available, P.H. tried to enter the apartment anyway. Defendant told her she could not come in, but she forced her way in. R.G. told P.H. that she would pay the debt later that day. Soon after, however, defendant received a phone call telling him P.H. attacked R.G. and took the dog. Defendant attempted to repay the debt himself, but on his way home he saw P.H. and M.F. with a golf club and a bat. Defendant hit P.H.’s car to protect R.G.

A police officer testified that defendant never mentioned an attempt to repay the debt and never mentioned P.H. or M.F. having weapons.

The jury convicted defendant on two counts of assault with a deadly weapon (a motor vehicle). (Pen. Code, § 245, subd. (a)(1).) The trial court suspended imposition of sentence, placed defendant on probation for five years with 300 days in county jail, and ordered him to pay a $300 restitution fine (§ 1202.4, subd.(b)), a $300 probation revocation fine (§ 1202.44), two $40 court operations assessments (§ 1465.8), and two $30 conviction assessments (Gov. Code, § 70373). The trial court declined to impose other recommended fees and costs, but did not articulate a reason on the record.

II

Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no initial communication from defendant. However, we requested supplemental letter briefs addressing the applicability of Dueñas, supra, 30 Cal.App.5th 1157 to this case, and the parties filed such briefs.

The People argue this appeal should be dismissed because defendant failed to seek relief from the fines and fees in the trial court as required by section 1237.2. That section 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 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.” (Ibid.)

We decline to dismiss the appeal because we raised the Dueñas issue as part of our Wende review. Moreover, unlike in People v. Jordan (2018) 21 Cal.App.5th 1136, 1142-1144, judicial economy would not be served by dismissing the appeal after our Wende review has been completed.

In the event we do not find forfeiture, the People agree remand would be appropriate to permit a hearing on defendant’s ability to pay the imposed fines and assessments. Defendant’s failure to object to the imposition of the imposed fines and assessments did not forfeit his ability to seek relief under Dueñas because he had no statutory right to do so and Dueñas was not a sufficiently foreseeable extension of case law. (People v. Johnson (2019) 35 Cal.App.5th 134, 137-138.) Accordingly, we will remand the matter to permit a hearing on defendant’s ability to pay the imposed fines and assessments.

Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The matter is remanded to permit a hearing on defendant’s ability to pay the imposed fines and assessments. The judgment is otherwise affirmed.

/S/

MAURO, J.

I concur:

/S/

BLEASE, J.

RAYE, P. J., Concurring and Dissenting.

Because I disagree with People v. Dueñas (2019) 30 Cal.App.5th 1157, for the reasons set forth in People v. Hicks (2019) 40 Cal.App.5th 320, review granted November 26, 2019, S258946, I do not perceive a need to remand for the purpose of determining defendant’s ability to pay the restitution fine and probation revocation fine. However, the Attorney General concedes the assessments for court operations and for court facilities serve a nonpunitive purpose to fund court-related operations and cannot be imposed on those who have no ability to pay. Accepting the concession, I will not object to the proposed remand to determine the ability to pay those assessments.

/S/ ,

RAYE, P. J.