People v. Tellez CA2/7

Filed 5/10/21 P. v. Tellez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306365
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA442143)
v.
PEDRO HECHAVARRIA
TELLEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Dismissed.
Janet Gusdorff, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and Yun K. Lee, Deputy Attorney
General for Plaintiff and Respondent.
___________________________________________
INTRODUCTION
Pedro Hechavarria Tellez appeals from a postjudgment
order denying his motion to vacate the restitution fine and
(stayed) parole revocation fine imposed when the court originally
sentenced him. Because the trial court lacked jurisdiction to hear
Tellez’s motion, and Tellez did not challenge the imposition of
these fines in his prior appeal, we dismiss this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. Tellez Appeals His Murder Conviction
On December 11, 2018 a jury found Tellez guilty of second
degree murder (Pen. Code, § 187, subd. (a)),1 and on January 14,
2019 the trial court sentenced him to a prison term of 15 years to
life, plus two one-year enhancements for having served two prior
prison terms (§ 667.5, subd. (b)). The trial court also ordered
Tellez to pay various fines and assessments, including a $5,000
restitution fine (§ 1202.4, subd. (b)), and imposed and stayed
execution of a $5,000 parole revocation fine (§ 1202.45). In
imposing these fines, the trial court stated, “He’s healthy enough
to work, and he’ll be there for a while; so I’ll find [he has the]
ability to pay.”
Tellez filed a notice of appeal on January 30, 2019 and an
opening brief on December 2, 2019. In his opening brief Tellez
argued the trial court erred in inadvertently failing to give the
jury written copies of CALCRIM Nos. 358 and 359. Tellez also
argued the trial court erred in imposing the two one-year
1 Statutory references are to the Penal Code.
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enhancements because a recent amendment to section 667.5,
subdivision (b), authorizes the court to impose the enhancement
only where the defendant served a prior prison term for a
sexually violent offense. Tellez stated in his opening brief the
court ordered him to pay a $5,000 restitution fine, but he did not
challenge the imposition of that fine or any other fine or
assessment.
The People filed their respondent’s brief on February 27,
2020, and Tellez filed his reply on April 17, 2020. On April 17,
2020 we advised the parties that the case was fully briefed and
that we would notify “the parties of the date and time scheduled
for oral argument.”
B. Tellez Files a Motion in the Trial Court To Vacate the
Restitution and Parole Revocation Fines, and We
Decide Tellez I
On April 28, 2020, while his appeal was pending, Tellez
filed a motion in the trial court seeking to vacate the $5,000
restitution and parole revocation fines. Tellez sought to reduce
both fines to $200 based on his inability to pay. Tellez argued
that his earnings while incarcerated “range from $12.00 per
month to $56.00 per month” and that, “even assuming that a
prisoner could earn the rate of $34.00 per month for work
performed in prison, the amount deducted for credit against his
restitution fine will be only $6.00 per month.” Thus, according to
Tellez, “it is absolutely impossible for a prisoner to pay the fine
out of his prison wages.”
The trial court denied the motion the same day. The court
stated: “The court has read and considered the petitioner’s
request to modify sentence by reducing the restitution fine to
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two-hundred dollars. That motion is denied. Court considered
all the factors in [section] 1202.4 in imposing the maximum
restitution fine of $5,000. Express findings by the court as to the
factors bearing on the amount of the fine were not required.”2 On
June 10, 2020 Tellez filed a notice of appeal from the order
denying his motion.
On August 11, 2020 we decided Tellez’s appeal. (See People
v. Tellez (Aug. 11, 2020, B295316) [nonpub. opn.] (Tellez I).) We
agreed with Tellez that the two one-year enhancements imposed
under section 667.5, subdivision (b), should be stricken. We
affirmed the judgment in all other respects.
DISCUSSION
Relying on our opinion in People v. Dueñas (2019)
30 Cal. App. 5th 1157 (Dueñas), Tellez argues in this appeal the
trial court violated his constitutional rights by imposing $5,000
restitution and parole revocation fines without determining his
ability to pay them.3 He asks this court to reduce his restitution
fines to the statutory minimum or to remand the matter for
2 The maximum restitution fine is $10,000. (§ 1202.4,
subd. (b)(1).)
3 In Dueñas we held, among other things, the “execution of
any restitution fine imposed under [section 1202.4,
subdivision (b),] must be stayed unless and until the trial court
holds an ability to pay hearing and concludes that the defendant
has the present ability to pay the restitution fine.” (Dueñas,
supra, 30 Cal.App.5th at p. 1164; see People v. Belloso (2019)
42 Cal. App. 5th 647, 655, review granted Mar. 11, 2020, S259755;
People v. Jones (2019) 36 Cal. App. 5th 1028, 1030-1031.)
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further proceedings. The People argue that the trial court
considered Tellez’s ability to pay and that the court did not
violate Tellez’s constitutional rights in imposing the fines. At our
request, the parties filed supplemental briefs on whether we have
jurisdiction to hear this appeal or whether the appeal should be
dismissed.
“As a general rule, ‘an appeal from an order [or judgment]
in a criminal case removes the subject matter of that order [or
judgment] from the jurisdiction of the trial court.’” (People v.
Jenkins (2019) 40 Cal. App. 5th 30, 37.) There is, however, a
limited exception for fines, fees, and assessments. 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.” (See
People v. Hall (2019) 39 Cal. App. 5th 502, 504 [“Section 1237.2
applies any time a defendant claims the trial court wrongfully
imposed fines, penalty assessments, surcharges, fees, or costs
without having first presented the claim in the trial court, and by
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the terms of the statute, the trial court retains jurisdiction
pending appeal to correct any error.”].)
The last sentence of section 1237.2 limits the application of
the jurisdictional exception in the statute to cases where the
imposition of fines, fees, or assessments is “the sole issue on
appeal.” Thus, “if issues other than the imposition or calculation
of such fines, assessments, and fees are being appealed, . . . the
limited exception provided by section 1237.2 . . . no longer
applies.” (People v. Jenkins, supra, 40 Cal.App.5th at p. 38.)
Tellez’s prior appeal was not limited to the issue of whether the
trial court erred in imposing or calculating fines and
assessments. Indeed, Tellez did not raise that issue at all.
Instead, he argued the trial court committed instructional and
sentencing errors. Therefore, section 1237.2 did not apply, and
the trial court did not have jurisdiction during the pendency of
Tellez I to hear Tellez’s motion to vacate the restitution and
parole revocation fines. (See People v. Jordan (2018)
21 Cal. App. 5th 1136, 1144 [“[s]ection 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’”].) And where “the trial court does not have jurisdiction
to rule on a motion to vacate or modify a sentence, an order
denying such a motion is nonappealable, and any appeal from
such an order must be dismissed.” (People v. Torres (2020)
44 Cal. App. 5th 1081, 1085; see People v. Alexander (2016)
6 Cal. App. 5th 798, 801 [dismissing an appeal under section
1237.2 where the sole issue was an alleged error in imposing a
restitution fine].)
The time for Tellez to raise the Dueñas issue was in his
prior appeal, by making the argument in his opening brief or
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seeking permission to file a supplemental brief. (See People v.
Jenkins, supra, 40 Cal.App.5th at pp. 38-39 [“the limited
exception provided by section 1237.2 did not apply in this case
because defendant’s appeal is not limited to an error in the
imposition or calculation of fines, assessments, and fees,” and
therefore the “defendant was required to submit that issue to this
court for resolution, to be decided along with the others he raised
on appeal,” including, “if necessary, by requesting leave to file a
supplemental brief”].) Requiring Tellez to raise the Dueñas issue
as part of his prior appeal is consistent with the purpose of
section 1237.2. “Section 1237.2 and the legislative history behind
it, mandate that a defendant timely raise his penalty assessment
claims to conserve judicial resources and efficiently present
claims in a single forum. [Citation.] This means that a
defendant must either file a motion to correct sentence with the
trial court when the sole issue he or she seeks to challenge is one
proscribed in section 1237.2, or file an appellate brief including
this issue when a defendant seeks to challenge issues in addition
to the issues proscribed in section 1237.2. Pursuing an appeal,
while also pursuing a motion to correct sentence, accomplishes
the opposite goal the Legislature was trying to accomplish by
enacting sections 1237.1 and 1237.2.” (People v. Jordan, supra,
21 Cal.App.5th at pp. 1142-1143.) This is particularly true
where, as here, the trial court at the original sentencing hearing
made a finding on Tellez’s ability to pay the fines the court
imposed.
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DISPOSITION
Tellez’s request to submit additional briefing is denied.
The appeal is dismissed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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