People v. Zavala CA3 ( 2022 )


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  • Filed 6/28/22 P. v. Zavala 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    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
    (Butte)
    ----
    THE PEOPLE,                                                                                   C095179
    Plaintiff and Respondent,                                     (Super. Ct. No. 20CF06250)
    v.
    PEDRO LYBRAND ZAVALA,
    Defendant and Appellant.
    Defendant Pedro Lybrand Zavala appeals the trial court’s imposition of court fees
    and a restitution fine after denying his request for an ability to pay hearing. We affirm.
    BACKGROUND
    Due to the limited scope of issues presented on appeal, a full recital of the facts is
    unnecessary. It suffices to say that after the victim broke out the rear window of
    defendant’s car, defendant drove his car into the victim, causing injuries that resulted in
    the amputation of the victim’s leg.
    1
    The People filed a complaint charging defendant with mayhem (Pen. Code,
    § 203)1 and assault with a deadly weapon. (§ 245, subd. (a)(1).) The complaint also
    alleged defendant inflicted great bodily injury on the victim in the assault. (§ 12022.7,
    subd. (a).)
    On September 9, 2021, pursuant to a plea agreement, defendant pleaded no contest
    to assault with a deadly weapon and admitted he inflicted great bodily injury in exchange
    for a sentence of seven years. (§§ 245, subd. (a)(1), 12022.7, subd. (a).) The remaining
    charge was dismissed pursuant to a Harvey2 waiver. The same day, the trial court
    sentenced defendant to seven years in prison. It also imposed a $300 restitution fine
    (§ 1202.4, subd. (b)), a suspended $300 parole revocation restitution fine (§ 1202.45), a
    $40 court operations assessment (§ 1465.8), and a $30 conviction assessment. (Gov.
    Code, § 70373.) Defendant did not object to any of the fees or fines.
    Two months later, on November 8, 2021, defendant filed a notice of appeal. Five
    months after sentencing, defendant’s counsel wrote a letter to the trial court asking it to
    stay the restitution fine in order for the prosecution to demonstrate defendant had the
    ability to pay it and strike the assessments pursuant to People v. Dueñas (2019) 
    30 Cal.App.5th 1157
     (Dueñas). The trial court acknowledged receipt of the communication
    and denied the request.
    DISCUSSION
    Defendant contends the trial court abused its discretion in failing to stay the
    restitution fine and strike the assessments. The Attorney General responds that defendant
    forfeited this contention by failing to raise a contemporaneous objection at sentencing.
    We agree with the Attorney General.
    1      Undesignated statutory references are to the Penal Code.
    2      People v. Harvey (1979) 
    25 Cal.3d 754
    .
    2
    Defendant was sentenced on September 9, 2021, almost three years after issuance
    of the Dueñas decision (Dueñas, supra, 
    30 Cal.App.5th 1157
     [decided Jan. 8, 2019]).
    The plea agreement form defendant signed specified he understood he may be ordered to
    pay a restitution fine of a minimum of $300 to a maximum of $10,000. Defendant,
    however, did not request an ability to pay hearing, and did not object to the imposition of
    the fine and assessments at issue or assert his inability to pay during sentencing. We
    conclude that defendant has forfeited his challenge. (People v. Greeley (2021) 
    70 Cal.App.5th 609
    , 624; People v. Scott (1994) 
    9 Cal.4th 331
    , 351-353; People v. Nelson
    (2011) 
    51 Cal.4th 198
    , 227.)
    We also reject defendant’s argument that section 1237.2 cures his forfeiture.
    Section 1237.2 states: “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.”
    Although this section makes the issue of fines and assessments cognizable on
    appeal, it does not bar the application of the forfeiture doctrine based on a failure to
    object when the fine was imposed. (People v. Jenkins (2019) 
    40 Cal.App.5th 30
    , 39.)
    This is especially true here given that the law defendant seeks to apply existed for almost
    three years before sentencing and he waited five more months to object. Under these
    circumstances, the belated assertion of this preexisting legal claim does not constitute an
    error that was discovered after sentencing. Likewise, filing a letter with the trial court
    3
    five months after sentencing, while the case was already on appeal, does not cure his
    failure to object at sentencing. (See People v. Chlad (1992) 
    6 Cal.App.4th 1719
    , 1725.)
    DISPOSITION
    The judgment is affirmed.
    KRAUSE               , J.
    We concur:
    MAURO                , Acting P. J.
    EARL                 , J.
    4
    

Document Info

Docket Number: C095179

Filed Date: 6/28/2022

Precedential Status: Non-Precedential

Modified Date: 6/28/2022