People v. Rivera CA3 ( 2023 )

Filed 12/8/23 P. v. Rivera 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C097733
Plaintiff and Respondent, (Super. Ct. Nos. 20CF06527,
22CF05627 )
v.
RICHIE JOE RIVERA,
Defendant and Appellant.
Defendant Richie Joe Rivera contends that several fees imposed by the trial court
as part of his sentence in case No. 20CF06527 (the elder abuse case)1 must be vacated
due to recently enacted legislation. The People agree. We modify the judgment to vacate
1 Although defendant filed a notice of appeal in two different cases, the only issue
raised in defendant’s brief concerns the elder abuse case. As such, this opinion only
addresses the judgment from that case.
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those fees, direct preparation of an amended abstract of judgment as necessary, and
otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As relevant here, on April 1, 2021, defendant pled no contest in the elder abuse
case to elder or dependent adult abuse, battery, and disobeying a domestic relations court
order. On April 29, 2021, the trial court imposed the upper term of four years
imprisonment for the elder abuse conviction and concurrent terms of six months for the
battery and one year for disobeying a court order. The court suspended execution of that
sentence and granted defendant three years’ formal probation. The court also ordered
defendant to pay a monthly $164 probation supervision fee (Pen. Code,2 former
§ 1203.1b) and a $25 criminal justice administration fee (Gov. Code, former § 29550.2,
subd. (a)).
The trial court terminated defendant’s probation as unsuccessful on December 29,
2022, and lifted the stay of execution of the previously imposed sentence. The court then
resentenced defendant to the middle term of three years for the elder abuse conviction
pursuant to section 1170, subdivision (b)(6). At the sentencing hearing, the court
pronounced that “[i]n [the elder abuse case], previously imposed fines, fees, and any
restitution are reimposed.”
Defendant timely appealed the judgment in the elder abuse case as well as the
judgment in a different matter, case No. 22CF05627.
DISCUSSION
Defendant’s sole contention on appeal is that the criminal justice administration
fee and probation supervision fee imposed in the elder abuse case should be vacated as
they are no longer authorized. The People agree, as do we.
2 Undesignated statutory references are to the Penal Code.
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Effective July 1, 2021, Assembly Bill No. 1869 (2019-2020 Reg. Sess.)
“eliminate[d] the range of administrative fees that agencies and courts are authorized to
impose to fund elements of the criminal legal system and . . . eliminate[d] all outstanding
debt incurred as a result of the imposition of [identified] administrative fees.” (Stats.
2020, ch. 92, § 2.) As relevant here, the bill repeals the authority to collect the Penal
Code former section 1203.1b probation supervision fee and the Government Code former
section 29550.2 criminal administration fee challenged by defendant. (Stats. 2020,
ch. 92, §§ 25, 48.) It also renders any balance as to those fees uncollectible and directs
that any portion of a judgment imposing those costs be vacated. (Pen. Code, § 1465.9,
subd. (a); Gov. Code, § 6111, subd. (a).)
Before reaching the merits, we must address a threshold issue. Generally, “where
the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or
costs are the sole issue on appeal,” an appeal may not be taken on that basis unless it is
first presented to the trial court. (§ 1237.2.) Defendant did not present the fee issue now
raised at any time in the trial court. But, relying on People v. Clark (2021)
67 Cal.App.5th 248, defendant argues he was not required to do so because the fees were
not erroneous when originally imposed in April 2021. Rather, the fees became
unauthorized later due to a change in the law. In similar circumstances, the court in
Clark reasoned that “[b]ecause there was no ‘error in the imposition or calculation of
fines, penalty assessments, surcharges, fees, or costs’ (§ 1237.2) at the time the
challenged fees and fines were imposed, both the letter and underlying rationale of
section 1237.2 militate in favor of addressing the issue [the defendant] raises now, rather
than requiring him to bring it to the trial court’s attention first by motion for correction.”
(Clark, at p. 257.) We adopt this approach and will thus consider defendant’s claim.
Although the fees challenged by defendant do not appear to be included in the
abstract of judgment, the parties reasonably interpret the trial court’s order reimposing all
previously imposed fees to include the now-unauthorized criminal justice administration
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fee and probation supervision fee. In accordance with Penal Code section 1465.9 and
Government Code section 6111, we vacate any portion of the judgment imposing those
fees.
DISPOSITION
The judgment in case No. 20CF06527 is modified the vacate the probation
supervision fee pursuant to Penal Code former section 1203.1b and the criminal justice
administration fee pursuant to Government Code former section 29550.2. The trial court
is directed to prepare an amended abstract of judgment as necessary and forward a
certified copy to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.
/s/
ROBIE, J.
We concur:
/s/
EARL, P. J.
/s/
BOULWARE EURIE, J.
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