People v. Castillo CA6 ( 2022 )

Filed 7/5/22 P. v. Castillo CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049195
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 19CR012452)
v.
SAMUEL CASTILLO,
Defendant and Appellant.
Following a court trial, the trial court convicted defendant Samuel Castillo of
felony violation of a protective order and three misdemeanors. The court suspended
imposition of sentence and ordered Castillo to serve a three-year probation term. The
court also ordered Castillo to pay a $350 restitution fine and various fees and
assessments, and imposed and suspended a $350 probation revocation restitution fine.
Castillo did not appeal the trial court’s order. Approximately one year later, the trial
court found that Castillo had violated his probation and sentenced him to 16 months in
the county jail. In addition, the court ordered Castillo to pay the previously suspended
$350 probation revocation restitution fine and any outstanding balance on the previously
ordered $350 restitution fine. Castillo now appeals.
In his opening brief, Castillo claims that the trial court violated his constitutional
rights by imposing the restitution fines without first determining whether he had the
ability to pay and, alternatively, his trial counsel was prejudicially ineffective for failing
to object to the court’s imposition of the restitution fines. Castillo also asserts that,
pursuant to Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Assembly Bill 1869), this
court should amend the judgment and direct the trial court to vacate any unpaid debt
owing on a criminal justice administration fee and probation services fees imposed at the
initial sentencing proceeding.
After the matter was fully briefed in this court, we asked the parties to file
supplemental briefs addressing whether this appeal should be dismissed as untimely
because Castillo failed to take an appeal from the trial court’s initial order suspending
imposition of sentence, granting probation with conditions, and ord ering payment of
various restitution fines, fees, and assessments.
In his supplemental brief, Castillo requests that we construe his appellate claims
“as an attack on the initial imposition of fines and fees” because the trial court “adopted
the [previous] findings” when sentencing him after finding that he had violated probation.
He also asserts that he has timely appealed from the later sentencing proceeding, at which
the trial court “executed the sentence and ordered” him to pay any previously suspended
fines and any outstanding balance on the $350 restitution fine. The Attorney General
contends that Castillo’s current challenge to the restitution fines and fees is untimely
because he did not appeal from the trial court’s initial order imposing those fines and
fees.
For the reasons explained below, we decide that we do not have the authority to
grant Castillo the remedies he seeks in this appeal because he failed to timely appeal the
trial court’s initial order imposing the challenged restitution fine, probation revocation
restitution fine, criminal justice administration fee, and probation services fees. We thus
lack jurisdiction to review or modify that order. Because Castillo has not asserted any
claim of error regarding his violation of probation or subsequent sentence, we affirm the
judgment.
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I. FACTS AND PROCEDURAL BACKGROUND 1
On February 11, 2020, following a court trial, Castillo was convicted of violating a
protective order by violence or threats with prior convictions (Pen. Code, § 166,
subd. (c)(4);2 count 1), two counts of misdemeanor battery (§ 242; counts 2 & 3), and
misdemeanor vandalism with a prior conviction (§ 594, subd. (b)(2)(B); count 4).
On June 10, 2020, the trial court suspended imposition of sentence and placed
Castillo on formal probation for three years with various conditions. The probation
conditions included direction to pay (among other fines, fees, and assessments) a $350
restitution fine (§ 1202.4, subd. (b)) and “in accordance with his/her ability to pay,” a
criminal justice administration fee (former Gov. Code, §§ 29550.1, 29550.2). In
addition, the court made further orders for payment of fines, fees, and assessments that
were “not conditions of probation.” The additional orders included the imposition and
suspension of a $350 probation revocation restitution fine (§ 1202.44) and a direction that
Castillo pay probation services fees comprising an $864 probation report preparation fee
plus $81 per month for the cost of supervised probation “in accordance with his/her
ability to pay” (former § 1203.1b).
At the conclusion of its recitation of the probation conditions and other fines, fees,
and assessments, the trial court said, “The defendant is entitled to a hearing if he can’t
afford to pay any of the fines and fees I imposed today.” Castillo did not request a
hearing on his ability to pay or otherwise object to any of the fines, fees, and assessments.
Furthermore, Castillo answered “Yes, your Honor” when the court asked him, “Do you
understand and accept all those terms [of probation]?” In addition, after Castillo’s trial
counsel waived a formal reading of appellate rights, the court told Castillo that he had a
right to appeal and suggested that he “[k]eep in touch with [his] attorney because there’s
1We do not state the facts regarding Castillo’s offenses or violation of probation
because they are not relevant to the issues raised in this appeal.
2 Unspecified statutory references are to the Penal Code.
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a time limit on that.” Castillo did not appeal any aspect of the June 10, 2020 sentencing,
including the imposition of fines, fees, and assessments.
On May 14, 2021, the trial court held a formal contested hearing on alleged
probation violations and found the violations true.
On June 11, 2021, the trial court terminated probation and sentenced Castillo to
the lower term of 16 months in county jail, with 293 days credit for time served. In
addition, the court directed, “And at this time, you are ordered to pay any previously
suspended fines and fees in addition to any outstanding balance on the state restitution
fine of [] $350 through the Monterey County Revenue Division.” Castillo did not object
to the court’s order or request a hearing on his ability to pay. In accord with the court’s
order, the abstract of judgment indicates that a probation revocation restitution fine of
“$350 per [Penal Code section] 1202.44 is now due, probation having been revoked.” No
other fine, fee, or assessment is indicated on the abstract of judgment.
Castillo filed a notice of appeal on June 16, 2021.
II. DISCUSSION
Castillo raises two claims related to the restitution fines and another claim
regarding the criminal justice administration and probation services fees. Relying on
People v. Dueñas (2019) 30 Cal.App.5th 1157, Castillo asserts the imposition of the
restitution fines of $350 without first determining whether he had the ability to pay them
violated his federal and constitutional rights to due process and equal protection and
against excessive fines, and, alternatively, he received ineffective assistance of counsel
because his trial counsel did not object to those restitution fines. Castillo urges us to
remedy the alleged error by ordering the trial court to stay the restitution fines unless and
until the trial court holds an ability to pay hearing and determines that Castillo has the
present ability to pay them.
Regarding the criminal justice administration and probation services fees, Castillo
contends that this court should, pursuant to Assembly Bill 1869, amend the judgment and
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direct the trial court to vacate any unpaid debt owing on those fees. The respondent’s
brief argues the merits of the appellate claims and does not raise any argument regarding
the timeliness of Castillo’s claims.
This court requested supplemental briefing on whether the appeal should be
dismissed as untimely because Castillo failed to take an appeal from the June 10, 2020
order suspending imposition of sentence, granting probation with conditions, and
ordering payment of certain restitution fines, fees, and assessments. (See § 1237,
subd. (a).)
Both parties filed a supplemental brief. The Attorney General contends that we
should dismiss this appeal as untimely because the trial court’s June 10, 2020 order was
an appealable order and the time for Castillo to challenge the terms of that order expired
before he filed his notice of appeal on June 16, 2021 (following the termination of his
probation and sentencing on June 11, 2021).
In his supplemental brief, Castillo requests that we “construe the argument set
forth in the instant appeal [] as an attack on the initial imposition of fines and fees
without an ability-to-pay hearing (June 10, 2020) because on June 11, 2021, the
sentencing court adopted the findings of the June 10, 2020 sentencing court.” In
addition, Castillo asserts that his “sentence was not executed until [June] 11, 2021, at
which time the notice of appeal was timely filed.”
We begin our analysis of Castillo’s appellate claims by examining the threshold
issue of our jurisdiction to consider his challenge to the restitution fine (§ 1202.4, subd.
(b)), probation revocation restitution fine (§ 1202.44), criminal justice administration fee
(former Gov. Code, §§ 29550.1, 29550.2), and probation services fees (former
§ 1203.1b), all of which were ordered by the trial court on June 10, 2020.
“A criminal appeal must generally be filed within 60 days of the making of the
order being appealed. [Citation.] ‘A timely notice of appeal, as a general matter, is
“essential to appellate jurisdiction.” ’ ” (People v. Ramirez (2008) 159 Cal.App.4th 1412,
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1420–1421 (Ramirez), quoting People v. Mendez (1999) 19 Cal.4th 1084, 1094; see also
People v. Slobodion (1947) 30 Cal.2d 362, 365–366.) “Unless the notice is actually or
constructively filed within the appropriate filing period, an appellate court is without
jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (In re
Jordan (1992) 4 Cal.4th 116, 121.)
An order granting probation is considered a final judgment, even when the trial
court has suspended imposition of sentence. (§ 1237, subd. (a); People v. Douglas (1999)
20 Cal.4th 85, 91 [“an order suspending imposition of sentence and granting probation is
considered a final judgment”].) A notice of appeal from a probation order must
ordinarily be filed within 60 days after it is made. (See Cal. Rules of Court, rule
8.308(a).)
Castillo current appeal is taken from his violation of probation and June 11, 2021
sentencing. As he timely filed the notice of appeal, we have jurisdiction over it. But we
lack jurisdiction to consider any of Castillo’s current legal claims because they only
challenge the restitution fines and indicated fees that the trial court had imposed one year
earlier on June 10, 2020.
Our analysis of the timeliness of Castillo’s appellate claims is informed by the
Court of Appeal decision in Ramirez, supra, 159 Cal.App.4th 1412. In that case, the trial
court initially sentenced the defendant in 2003 to four years in prison, suspended
execution of that sentence, and granted probation. (Id. at p. 1418.) In 2004, pursuant to a
negotiated disposition, the defendant admitted a probation violation and probation was
reinstated, but the court increased the defendant’s unexecuted sentence from four years to
five years. (Id. at pp. 1418–1419.) In 2006, the trial court found the defendant had
violated his probation, terminated that probation, and executed the five-year sentence.
(Id. at pp. 1419–1420.) The defendant appealed the executed sentence, raising three
claims that challenged earlier actions taken by the trial court in 2004; the defendant did
not directly challenge the 2006 order from which he had appealed. (Id. at p. 1420.) The
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Court of Appeal agreed with the defendant that the trial court acted improperly in 2004
when it increased the defendant’s unexecuted sentence. (Id. at p. 1425.) Nevertheless,
the Court of Appeal concluded the defendant’s appellate claims were untimely—and
affirmed the judgment—because the defendant should have raised his claims in a timely
appeal from the 2004 order. (Id. at p. 1421.)
In reaching its conclusion, the Court of Appeal explained: “In general, an
appealable order that is not appealed becomes final and binding and may not
subsequently be attacked on an appeal from a later appealable order or judgment.
[Citations.] Thus, a defendant who elects not to appeal an order granting or modifying
probation cannot raise claims of error with respect to the grant or modification of
probation in a later appeal from a judgment following revocation of probation.”
(Ramirez, supra, 159 Cal.App.4th at p. 1421.)
Here, in contrast to Ramirez, the trial court originally suspended imposition of
sentence and placed Castillo on probation (as compared to imposing sentence and
suspending its execution pending a term of probation). We recognize that this difference
could, in certain circumstances, affect the jurisdictional analysis. (See People v.
McKenzie (2020) 9 Cal.5th 40, 46–48 (McKenzie).) Nevertheless, for the purpose of our
evaluation of the timeliness of the claims Castillo makes in this appeal, the relevant
triggering event for imposition of the challenged restitution fines and fees is the
conviction itself. The time to appeal does not run from a subsequent entry of judgment
or, as occurred here, a mere reiteration of Castillo’s obligation to pay the previously
imposed restitution fines. (See People v. Chambers (1998) 65 Cal.App.4th 819, 822;
§§ 1202.4, subd. (m), 1202.44, former § 1203.1b, subd. (b); former Gov. Code, § 29550,
subd. (d).)
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An order suspending imposition of sentence and granting probation is “deemed to
be a final judgment within the meaning of” section 1237 and thus is an appealable order.3
(§ 1237, subd. (a); People v. Wilcox (2013) 217 Cal.App.4th 618, 625; People v. Silva
(1966) 241 Cal.App.2d 80, 82–83; see also People v. Superior Court (Giron) (1974) 11
Cal.3d 793, 796.) “By providing that an order granting probation is ‘deemed to be a final
judgment within the meaning of [section 1237, subdivision (a)],’ ” that section “ ‘mak[es]
the scope of review the same as though the appeal were taken from a final judgment of
conviction.’ ” (McKenzie, supra, 9 Cal.5th at p. 47, italics omitted.)
Like the defendant in Ramirez, Castillo could have appealed the initial June 2020
order imposing the restitution fines and fees that are currently the subject of his appellate
claims, but he did not. In this circumstance, we apply the reasoning of the Court of
Appeal in Ramirez and conclude that, to challenge the restitution fines and fees imposed,
Castillo was required to timely appeal from the trial court’s grant of probation and
imposition of the restitution fines and fees on June 10, 2020. He failed to do so.
That Castillo timely filed a notice of appeal from his subsequent June 11, 2021
sentencing proceeding does not absolve his failure to timely challenge the restitution
fines and fees imposed in June 2020, by appealing that order. (See Ramirez, supra, 159
Cal.App.4th at p. 1421.) Because Castillo did not file a notice of appeal within 60 days
of the order imposing the restitution fines and fees that he now challenges (Cal. Rules of
Court, rule 8.308(a)), that order became “final and binding.” (Ramirez, at p. 1421.) We
3 Section 1237 provides: “An appeal may be taken by the defendant from both of
the following: [¶] (a) Except as provided in Sections 1237.1, 1237.2, and 1237.5, from a
final judgment of conviction. A sentence, an order granting probation, or the
commitment of a defendant for insanity, the indeterminate commitment of a defendant as
a mentally disordered sex offender, or the commitment of a defendant for controlled
substance addiction shall be deemed to be a final judgment within the meaning of this
section. Upon appeal from a final judgment the court may review any order denying a
motion for a new trial. [¶] (b) From any order made after judgment, affecting the
substantial rights of the party.” (§ 1237.)
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therefore lack jurisdiction to consider the alleged errors related to the June 2020 order.4
Because Castillo raises no cognizable legal claims challenging the determination that he
violated probation or the June 11, 2021 sentencing proceeding, we affirm the judgment.5
III. DISPOSITION
The judgment is affirmed.
4 Regarding the criminal justice administration and probation services fees and
Castillo’s claim related to Assembly Bill 1869, this court has stated that “by its plain
terms the ameliorative changes of Assembly Bill 1869 apply retroactively to make any
unpaid portion of the identified assessments, as they existed on June 30, 2021,
‘unenforceable and uncollectible’ as of July 1, 2021. (Stats. 2020, ch. 92, §§ 11, 62.).”
(People v. Greeley (2021) 70 Cal.App.5th 609, 626.) While we lack jurisdiction over the
trial court order imposing the criminal justice administration and probation services fees,
Castillo (should he so choose) is not prejudiced from raising any claims in the trial court
regarding the unpaid portion of the identified fees. (See Gov. Code, § 6111; § 1465.9;
see also People v. Nelms (2008) 165 Cal.App.4th 1465, 1472 [“The trial court retains
jurisdiction to vacate a void, but not a voidable, judgment. . . . The trial court also
retains jurisdiction . . . to correct an unauthorized sentence.”].)
5 In light of our conclusion that we lack jurisdiction to consider Castillo’s
appellate claims, we deny as unnecessary Castillo’s motion for judicial notice filed on
April 6, 2022.
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______________________________________
Danner, J.
WE CONCUR:
____________________________________
Bamattre-Manoukian, Acting P.J.
____________________________________
Wilson, J.
H049195
People v. Castillo