People v. JordanPeople v. Jordan
It is ordered that the opinion filed herein on March 15, 2018, be modified as follows:
On page 10, delete the first two full paragraphs and insert the following in its place:
This case does not fall within that exception because the trial court was authorized to impose penalty assessments on both the drug program and the criminal laboratory analysis fees. (People v. Sierra (1995) 37 Cal.App.4th 1690, 1695 [drug program fee is
There is no change in the judgment.
BY THE COURT:
/s/
Robie, Acting P. J.
/s/
Duarte, J.
/s/
Hoch, J.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2016, defendant pled no contest to unlawful possession of a controlled substance for sale and unlawful transportation of a controlled substance for sale. In October 2016, the trial court suspended imposition of sentence and placed him on probation for five years with various terms and conditions. The court also imposed various fines and fees, including a criminal laboratory analysis fee plus penalty assessments, and a drug program fee plus penalty assessments. At sentencing, defendant did not object to the imposition of these fees or the penalty assessments attached to them. Defendant filed his original appeal from this entry of judgment.
In February 2017, defendant admitted to viоlating the terms of his probation by testing positive for methamphetamine on two occasions. The trial court revoked and reinstated probation on the same terms and conditions but added a 90-day county jail term with a recommendation to the sheriff‘s work project program.
On March 20, 2017, defendant filed his opening brief in his original appeal. His sole contention was the trial court erred in denying his suppression motion. (See People v. Jordan, supra, C083182.)
On March 23, 2017, defendant filed a motion to correct sentence in the trial court pursuant to People v. Fares (1993) 16 Cal.App.4th 954 (Fares) and
In July 2017, we issued an opinion disposing of defendant‘s first appeal. We affirmed the judgment after concluding the trial court did not err in denying defendant‘s motion to suppress. (See People v. Jordan, supra, C083182.)
DISCUSSION
The People initially contend we must dismiss defendant‘s appeal for lack of jurisdiction. We disagree because defendant appealed the denial of his motion to correct sentence, which is an appealable order.
On March 23, 2017, defendant filed a letter pursuant to Fares, alleging the court made a mistake of law by imposing penalty assessments on the criminal laboratory analysis fee. A Fares letter serves to request the court correct minor errors in the sentence. (Fares, supra, 16 Cal.App.4th at pp. 957-958.) “There is no time limitation upon the right to make the motion to correct the sentence. . . . The court‘s power to correct its judgment includes corrections required not only by errors of fact (as in the mathematical calculation) but also by errors of law.” (Id. at p. 958.) The denial of a motion to correct sentence is an appealable order because it is a postjudgment order affecting a defendant‘s substantial rights. (See
Defendant‘s motion to correct sentencе was denied on April 24 and he filed a notice of appeal from that denial on May 3, 2017 -- within the 60 days proscribed by law.
In the opening brief in his original appeal, defendant challenged the denial of his suрpression motion, an issue that could have accompanied his penalty assessment claims. (See People v. Jordan, supra, C083182.) Thus, under
In Fares, the defendant sought to correct the presentenсe custody credits the trial court awarded to him through the appellate process. The appellate court was “disturbed that this attempt at a minor correction of a sentence error has required the formal appellate process.” (Fares, supra, 16 Cal.App.4th at p. 957.) After wondering whether “there [was] a better way of going about this sort of corrective jurisprudence than by
After the enactment of
“When the only issue to be raised on apрeal involves a matter such as presentence credits, the Legislature‘s determination that the issue should first be presented in the trial court makes sound economic sense” because the expenditure of public funds on preparation of an appellate record and appointment of appellate counsel may be avoided. (Acosta, supra, 48 Cal.App.4th at pp. 426-427.) “However, when there are other issues which are to be litigated on appeal, the economic good sense . . . no longer exists.” (Id. at p. 426.) “[I]f there are other appellate issues such as occurred in the present case, requiring a motion be made in the trial court in order to raise the question on appeal no longer is an economical expenditure of public moneys. Virtually all counsel on appeal
With this in mind, we now turn to
Given this history, we сonclude that failure to raise a penalty assessment claim in an appellate brief, which also includes at least one other claim, serves to waive that claim for the purposes of future appeals.
The Senior court explained “that the California rule barring a direct attack upon a conviction after a limited remand is a corollаry of the more expansive rule recognized under federal law requiring all available arguments to be raised in the initial appeal from the judgment.” (Senior, supra, 33 Cal.App.4th at p. 535.) Similar rules are “recognized and applied in various state jurisdictions.” (Id. at p. 536.) Also, California law prohibits a defendant from raising contentions in a piecemeal fashion by successive proceedings. When a defendant had an opportunity to challenge his or her sentence in an earlier appeal and failed to do so, he or she may not belatedly raise the same issue in a later appeal or a collateral attack on the judgment, absent good cause. (Id. at pp. 537-538.) These prohibitions are “justified by various policy considerations, including the state‘s ‘powerful interest in the finаlity of its judgments’ [citation], the protection of ‘scarce judicial resources’ [citation], and the recognition that ‘piecemeal litigation prevents the positive values of deterrence, certainty, and public confidence from attaching to the judgment.’ ” (Id. at p. 538.)
Defendant argues his penalty assessment claims were not ripe during his original appeal because he was required to first request the trial court strike the assessments pursuant to
Defendant does not contend, nor can he, that thеre has been a significant change in the facts or law underlying his penalty assessment claims. The only factual change the court made when reinstating probation was the addition of a 90-day county jail term; the imposed fines and penalty assessments remained the same. The law underlying defendant‘s claim remained unchanged as well. Defendant‘s entire argument that his penalty аssessments were erroneously imposed rests on Watts,2 which was issued in
Neither does defendant provide a justification for failing to raise his penalty assessment challenges in his original appeal. The record clearly establishes that defendant was aware of these issues and wanted them remedied at the time his original appeal was filed and during the time it was pending. Instead of including the claims in his original appeal, defendant expended scarce judicial resources by filing a motion in the trial court and then appealing the denial of that motion. Instead of appealing the denial of the motion, defendant could have properly presented his claims to this court by either requesting leave to file a supplemental brief in his original appeal (
Defendant argues he did not waive his penalty assessment claims by failing to raise them in his original appeal because they constitute unauthorized sentences, which we have the power to correct at any time. An ” ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354.) “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to
This case does not fall within that exception. The unauthorized sentence exception excuses forfeiture when a party fails to preserve a claim of error in the trial court. (People v. Scott, supra, 9 Cal.4th at pp. 348, 351.) Here, defendant‘s failure to object in the trial court to a purportedly unauthorized sentence would have been excused and we would have reached the merits of his claims had he brought them with his suppression claim in his original appeal. Defendant‘s failure to comply with
Defendant‘s citations to People v. Dotson (1997) 16 Cal.4th 547 and People v. Serrato (1973) 9 Cal.3d 753, do not persuade us otherwise. In Dotson, our Supreme Court reached the merits of a sentencing claim despite the appealing party‘s failure to object in the trial court. (Dotson, at p. 554, fn. 6.) In Serrato, our Supreme Court stated in dicta that it had authority to correct a sentence unauthorized by law. (Serrato, at p. 763.) In both cases, however, the parties’ claims were properly presented as part of an initial аppeal. (Dotson, at p. 551; Serrato, at p. 756.)
Thus, defendant waived his penalty assessment claims because he failed to comply with
DISPOSITION
The judgment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Duarte, J.
/s/
Hoch, J.