People v. Lee CA3 ( 2021 )

Filed 5/20/21 P. v. Lee 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
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THE PEOPLE, C083364
Plaintiff and Respondent, (Super. Ct. No. 16FE007428)
v.
LESHONE LEE,
Defendant and Appellant.
Defendant Leshone Darsell Lee attempted to scam individuals out of money by
feigning they hit him with their car. When one of his victims refused to give him money
and insisted on calling the police, he displayed what appeared to be a gun and grabbed
money from the victim’s purse. A jury convicted defendant of second degree robbery
and misdemeanor drug possession. The trial court sentenced him to three years in prison.
Defendant does not challenge his convictions on appeal. Rather, his sole
contention is that the court intended to impose the minimum restitution fines under Penal
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Code sections 1202.4 and 1202.45, but mistakenly believed that that amount was $400
rather than the actual statutory minimum of $300.1 The People agree, and request that we
modify the restitution fines on appeal rather than remand the matter to the trial court so as
to preserve judicial resources. Because we conclude defendant’s appeal is not cognizable
under section 1237.2, we must dismiss it.
PROCEDURAL BACKGROUND2
Defendant was charged with second degree robbery (§ 211), extortion by means of
force and threat (§ 520), and misdemeanor possession of a controlled substance (Health
& Saf. Code, § 11350, subd. (a)). A jury found him guilty of robbery and possession of a
controlled substance, but acquitted him of extortion. On November 1, 2016, the court
sentenced defendant to the midterm of three years in state prison for the robbery
conviction, and a concurrent six-month term for the drug possession offense. The court
assessed various fines and fees, including a restitution fine of $400 pursuant to section
1202.4 and a matching $400 parole revocation restitution fine under section 1202.45, the
latter stayed pending successful completion of parole.
Regarding the restitution fine, the court initially ordered defendant to pay a
restitution fine in the amount of $900, which it called the statutory minimum. Defense
counsel then informed the court that she thought the minimum was $400. She also asked
the court to “impose the minimum fines and fees.” The court then asked the prosecutor
whether she knew the statutory minimum restitution fine. Although the prosecutor said
she did not believe $900 was the minimum, she was unsure of the exact minimum
amount. Following this exchange with counsel, the court imposed a $400 restitution fine
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
2 The facts underlying defendant’s offenses are not relevant to the issue on appeal.
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as well as an identical $400 parole revocation restitution fine, which was stayed pending
successful completion of parole.
At the time, the minimum restitution fine was $300 and not $400 as defense
counsel mistakenly suggested. (§ 1202.4, subd. (b)(1), as amended by Stats. 2015,
ch. 569 (A.B. 1140), § 15, eff. Jan. 1, 2016 to June 26, 2016.)
DISCUSSION
Defendant’s sole contention on appeal is that the trial court intended to impose the
minimum restitution fines under sections 1202.4 and 1202.45, but that it mistakenly
believed the amount was $400 rather than the actual statutory minimum of $300.
Effective January 1, 2016, section 1237.2 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.” Thus, an appeal may not be taken on the ground of error in
imposing fines unless the defendant first presents the claim to the trial court. “A primary
impetus for section 1237.2 was judicial economy. As the Judicial Council—the law’s
sponsor—advised the Legislature, the law will reduce ‘ “ ‘the burdens associated with
formal appeals and resentencing proceedings stemming from a common sentencing error.
By requiring that this sentencing error first be raised in the trial court, which has ready
access to the court records and other information necessary to review and resolve such
issues, this proposal would promote judicial economies and efficiencies by avoiding the
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costs and burdens associated with a formal appeal.’ ” [Citation]” ’ (People v. Torres
(2020) 44 Cal.App.5th 1081, 1086.)
Neither defendant’s briefing, nor the record before us indicates defendant
presented a section 1237.2 claim to the trial court. Briefing began long after section
1237.2 was enacted and long after the first case construing its provisions was published.
(See People v. Alexander (2016) 6 Cal.App.5th 798.) Because of the failure to comply
with section 1237.2, we have no jurisdiction and must dismiss this appeal. (People v.
Hall (2019) 39 Cal.App.5th 502, 504-504; Alexander, at pp. 800-801.)
DISPOSITION
The appeal is dismissed.
/s/
MURRAY, Acting P. J.
We concur:
/s/
DUARTE, J.
/s/
HOCH, J.
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