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 violating 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)
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
Defendant's motion to correct sentence 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. ( Cal. Rules of Court, rule 8.104.) Thus, we have jurisdiction to hear defendant's instant appeal; however, we decline to do so because defendant failed to raise his penalty assessment claims in his original appeal, failing to comply with section 1237.2 and resulting in waiver of those claims.
Section 1237.2 requires a defendant to first file a motion for correction in the trial court before appealing "the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs." This section, however,
In the opening brief in his original appeal, defendant challenged the denial of his suppression motion, an issue that could have accompanied his penalty assessment claims. (See People v. Jordan , supra , C083182.) Thus, under section 1237.2, defendant could have brought these issues together in his original appeal. Instead, defendant went back to the trial court to request correction of his penalty assessments. Now he appeals from the denial of that request and raises the same claims he could have raised alongside his suppression challenge in his original appeal. (See § 1237.2.) Because defendant did not raise the penalty assessment claims in his original appeal, we conclude he cannot raise them now. To fully explain our conclusion, it is necessary to review the history of section 1237.2 and the related statutory provision of section 1237.1.
In Fares , the defendant sought to correct the presentence 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 ,
After the enactment of section 1237.1, the court in Acosta narrowly construed the language of section 1237.1 to conform to legislative intent and held the statute does not bar a conduct credit claim raised for the first time on appeal if the appeal also raised other issues. ( Acosta , supra , 48 Cal.App.4th at pp. 426-427,
"When the only issue to be raised on appeal 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,
With this in mind, we now turn to section 1237.2, which took effect January 1, 2016. Section 1237.2, reads nearly identical to section 1237.1, but pertains to penalty assessments and fines, and also includes explicit language codifying the holding of Acosta . (See § 1237.2 ["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"].) Thus, the legislative intent of preserving judicial resources and avoiding appellate review of ministerial acts underpinning section 1237.1, also underpins section 1237.2.
Given this history, we conclude that failure to raise a penalty assessment claim in an appellate brief, which also includes at least one other claim, serves to waive that
The doctrine of waiver further supports this point. Waiver precludes successive appeals based on issues ripe for consideration in the prior appeal and not brought in that proceeding. ( People v. Rosas (2010)
The Senior court explained "that the California rule barring a direct attack upon a conviction after a limited remand is a corollary 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 ,
The Senior court determined that the policy considerations supporting the waiver rule applied to the facts before it and held "that where a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay." ( Senior , supra ,
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 section 1237.2. Not so. Section 1237.2 only applies to "cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal ." (Italics added.) As described, defendant's penalty assessment challenges would not have been the sole issue in the original appeal. Thus, the issue was ripe at the time defendant filed his original appeal.
Defendant does not contend, nor can he, that there 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 assessments were erroneously imposed rests on Watts ,
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 ( Cal. Rules of Court, rule 8.200(a)(4) ) or by moving to consolidate his instant appeal with his original ( Cal. Rules of Court, rule 8.54 ). Defendant did
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." (
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)
Thus, defendant waived his penalty assessment claims because he failed to comply with section 1237.2 and raise them in his original appeal with the claims he presented there.
DISPOSITION
The judgment is affirmed.
We concur:
Duarte, J.
Hoch, J.
Notes
All further section references are to the Penal Code unless otherwise indicated.
Watts , supra ,