BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 249


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          Date of Hearing:  March 17, 2015
          Counsel:               Sandra Uribe



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                   249 (Obernolte) - As Introduced  February 9, 2015


                       As Proposed to be Amended in Committee

          SUMMARY:  Requires a defendant to make a motion in the trial  
          court before filing an appellate brief alleging only errors in  
          the imposition or calculation of fines, fees, and assessments.   
          Specifically, this bill:  

          1)Prohibits an appeal by a defendant on the ground of an error  
            either in the imposition or calculation of fines and fees  
            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.

          2)Specifies that this limitation applies only in cases where the  
            erroneous imposition or calculation of fines, penalty  
            assessments, surcharges, fees, or costs are the only issue on  
            appeal.

          3)Provides that a motion to correct an error in the imposition  
            or calculation of fines and fees in the trial court may be  
            made via an informal written letter.

          4)Amends the statute detailing which court actions are  








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            appealable by a criminal defendant to include this new  
            exception in the list of exceptions.

          5)Clarifies that a request to correct presentence custody  
            credits in the trial court may be made informally in writing.

          EXISTING LAW:  

          1)Provides that either party in a felony case may appeal on  
            questions of law alone.  (Pen. Code, § 1235.)

          2)Allows a defendant to appeal a final judgment of conviction,  
            subject to a few limitations, and from any order made after  
            judgment affecting the defendant's substantial rights.  (Pen.  
            Code, § 1237.)

          3)Defines a "final judgment" for purposes of appeal as "[a]  
            sentence, an order granting probation, or the commitment of  
            the 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."  
             (Pen. Code, §1237, subd. (a).)

          4)Provides that a defendant cannot appeal from a judgment of  
            conviction on the ground of an error in the calculation of  
            presentence custody credits, 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  
            of the record in the trial court.  (Pen. Code, § 1237.1.)

          5)Limits the issues a defendant can appeal in a guilty plea  
            case, unless he or she obtains a certificate of probable  
            cause.  (Pen. Code, § 1237.5.)

          6)Allows the prosecution to appeal certain specified orders,  
            such as a motion to dismiss, and order granting a new trial,  
            and an unauthorized sentence. (Pen. Code, § 1238.)

          FISCAL EFFECT:  Unknown

          COMMENTS:  








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          1)Author's Statement:  According to the author, "When a fines  
            and fees error is the sole issue on appeal, trial and  
            appellate courts incur significant costs and burdens  
            associated with preparation of the formal record on appeal and  
            resulting resentencing proceedings. AB 249 would prohibit a  
            defendant from appealing a final conviction solely on the  
            basis of an error in the imposition or calculation of fines,  
            penalty assessments, surcharges, fees, or costs, unless the  
            issue is raised in the trial court at the time of sentencing.  
            AB 249 would not prohibit defendants from seeking appeals on  
            the grounds of any substantive concern, but rather allow  
            courts to handle the correction administratively."

          2)Comparison with Penal Code Section 1237.1:  In People v. Fares  
            (1993) 16 Cal.App.4th 954, the Court of Appeal held that the  
            appropriate way of correcting credit errors was to seek  
            correction in the trial court because, under Penal Code  
            section 2900.5, it is the obligation of the superior court to  
            calculate the number of credits.  (Id. at p. 958)  The Court  
            of Appeal was "disturbed that this attempt at a minor  
            correction of a sentence error has required the formal  
            appellate process."  (Id. at p. 957.)  The court warned it  
            would reserve "the right in the future summarily to dismiss  
            appeals directed to correction of presentence custody  
            calculations when it appear[ed] that prior resort to the  
            superior court in all likelihood would have afforded an  
            adequate remedy."

          The Legislature then codified the Fares opinion by enacting  
            Penal Code section 1237.1, which became effective in 1996, and  
            states:  "No appeal shall be taken by the defendant from a  
            judgment of conviction on the ground of an error in the  
            calculation of presentence custody credits, 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 of the record in the trial court."

          As was the case with the calculation of presentence custody  
            credits, appellate courts are often called upon to correct  
            sentences that contain errors in fines and penalty  








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            assessments.  (People v. Hamed (2013) 221 Cal.App.4th 928,  
            939.)  Appellate courts have voiced frustration about  
            correcting these errors which can easily be resolved by the  
            trial court.  (Id.)  This bill requires that criminal  
            defendants resolve issues regarding fines, fees, and  
            assessments in the trial court before raising them in the  
            Court of Appeal.

             a)   Legal vs. Mathematical Errors:  Penal Code section  
               1237.1 does not on its face make a distinction between a  
               mathematical miscalculation of credits and a substantive  
               issue dealing with statutory interpretation of credits  
               statutes, or an exercise of judicial discretion in applying  
               a credits statute.  The language of the statute broadly  
               states its mandate applies to "an error in the calculation  
               of presentence custody credits."  (Pen. Code, § 1237.1.)     
               However, the error in question in Fares, was a minor,  
               mathematical miscalculation which the Court of Appeal  
               "deemed clerical, inadvertent, or at most negligent."   
               (People v. Fares, supra, 16 Cal.App.4th at p. 957.)   
               Further, the legislative history of Penal Code section  
               1237.1 described the purpose of the new law as "to curtail  
               misuse of the formal appellate process to correct minor  
               sentencing errors when alternative forums for resolution  
               exist."  (Sen. Com. on Criminal Procedure, Analysis of  
               Assem. Bill No. 354 (1995-1996 Reg. Sess.).)  

             However, if there is a substantive legal issue involving the  
               application of a credits statute, appellate courts have  
               addressed the legal issue without reference to compliance  
               with Penal Code section 1237.1.  (See e.g, People v.  
               Delgado (2012) 210 Cal.App.4th 761, 766-767.)

             The provision of this bill directing correction of fines and  
               fees in the trial court is broader than Penal Code section  
               1237.1 in that it directs an appellant not only to seek  
               correction of miscalculations of fines and fees, but also  
               to raise issues regarding their imposition, which may be  
               strictly a legal issue.

             b)   Formal Motion vs. Informal Written Request:  In People  
               v. Clavel (2002) 103 Cal.App.4th 516, 519, the Court of  








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               Appeal dismissed an appeal because the sole issue raised  
               was whether the trial court had miscalculated the credits  
               and no formal motion had been filed.  In Clavel, appellate  
               counsel had filed an informal request for correction of  
               credits before raising the issue on appeal, but the trial  
               court failed to act on the request.  (Id. at p. 518.)   
               Because section 1237.1 requires the defendant to "make a  
               motion" in the trial court, an informal request is not a  
               motion, and an appeal raising a credits issue without such  
               a motion is subject to dismissal.  While the Clavel court  
               expressly condoned the informal procedure to the extent  
               that it gets the desired result, it held that if no action  
               is taken by the superior court, counsel must proceed to  
               make a formal motion.  (Id. at p. 519.)

             This bill specifies that as to "motions" to correct either  
               presentence credits or errors in the imposition or  
               calculation of fines and fees, the requests may be made  
               informally in writing.

             c)   Other issues on Appeal:  The appellate courts recognize  
               an exception to compliance with Penal Code section 1237.1  
               when the credits error is not the only issue to be raised  
               on appeal.  (People v. Acosta (1996) 48 Cal.App.4th 411,  
               see also People v. Duran (1998) 67 Cal.App.4th 267.)   
               However, the California Supreme Court has stated that an  
               appellate court is not obligated to consider an appellant's  
               credits claim even if other issues are raised on appeal.  
               (People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101 [the  
               Court of Appeal may consider defendant's claim of  
               miscalculated presentence credits but is not obligated to  
               do so].)  

             This bill specifies that as to errors regarding fines and  
               fees, the prerequisite to seek correction in the trial  
               court only applies if that error is the only issue being  
               raised on appeal. Should Penal Code section 1237.1 also be  
               amended to clarify that compliance with the statute is only  
               required when an alleged credits error is the only issue on  
               appeal?
             
          3)Fines and Fees Generally:  The trial court is required to  








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            itemize the fines, fees, and penalties on the record.  All  
            fines and fees must be set forth in the abstract of judgment.   
            (People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.)  A  
            classification of the fines and fees on the abstract of  
            judgment assists the Department of Corrections and  
            Rehabilitation to collect and forward deductions from prison  
            wages to the appropriate agency based on the nature of the  
            fine imposed.  (People v. Hong (1998) 64 Cal.App.4th 1071,  
            1078-1079.)  Including the breakdown of all fines and fees in  
            the abstract also assists state and local agencies in their  
            efforts to collect fines. (People v. High (2004) 119  
            Cal.App.4th 1192, 1200.)  Thus, when the trial court fails to  
            announce the separation of the fines, the matter should be  
            remanded to the trial court for a detailed recitation of the  
            fines/fees. (Ibid.)

          The fines, fees, penalty assessments, and surcharges imposed by  
            the Legislature has become increasingly complicated.  As one  
            court recently noted, "when [People v.] High was decided in  
            June 2004, there were only four penalty assessments. This area  
            has become more complex since then, with the addition of three  
            more penalty assessments and multiple amendments to the  
            statutes that impose base fines and penalty assessments. In  
            light of this history, additional fines and penalty  
            assessments-or amendments to those already in existence-- may  
            be enacted by the Legislature in the years to come."  (People  
            v. Hamed (2013) 221 Cal.App.4th 928, 939.)

          4)Jurisdiction: As a general rule a trial court loses  
            jurisdiction to vacate its own judgment once a party files a  
            notice of appeal, thus shifting jurisdiction over the case to  
            the Court of Appeal.   (People v. Alanis (2008) 158  
            Cal.App.4th 1467, 1472.)  The appellate court maintains  
            jurisdiction of the case until the appeal is determined and  
            the remittitur has issued.  The purpose of this rule "'is to  
            protect the appellate court's jurisdiction by preserving the  
            status quo until the appeal is decided.  The rule prevents the  
            trial court from rendering an appeal futile by altering the  
            appealed judgment.'"  (Ibid., quoting Townsel v. Superior  
            Court (1999) 20 Cal.4th 1084, 1089.")

          There are, however, a few exceptions to the rule removing  








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            subject matter jurisdiction from the trial court.  First,  
            after the notice of appeal is filed, the trial court retains  
            jurisdiction to correct clerical errors, but not judicial  
            errors.  A clerical error is one that is made in recording the  
            judgment, whereas a judicial error is one made in rendering  
            the judgment.  (People v. Mitchell (2001) 26 Cal.4th 181, 185;  
            In re Candelario (1970) 3 Cal.3d 702, 705.)  Additionally, the  
            trial court may recall the sentence for 120 days under Penal  
            Code section 1170 subdivision (d), if the recall is only for  
            reasons rationally related to sentencing.  (Portillo v.  
            Superior Court (1992) 10 Cal.App.4th 1829, 1834-1836.)  The  
            trial court also has jurisdiction to vacate a void --but not  
            voidable-- judgment, such as an unauthorized sentence.  A  
            judgment is void, rather than voidable, only if the trial  
            court lacked subject matter jurisdiction.  (People v. Malveaux  
            (1996) 50 Cal.App.4th 1425, 1434.)

          This bill would require alleged errors regarding the imposition  
            of fine, fees, and assessments to be raised in the trial  
            court, rather than the appellate court, when there are no  
            other issues to be raised on appeal.  While some issues  
            involving fines and fees may involve clerical changes or  
            unauthorized sentences, others will not.  The latter would  
            fall outside the scope of the trial court's jurisdiction.   
            However, the Legislature may regulate the mode of exercising  
            appellate jurisdiction.  (See e.g., Powers v. City of Richmond  
            (1995) 10 Cal.4th 85.)  Thus, the bill appears to give  
            concurrent jurisdiction to the appellate court and the trial  
            court as to these matters, arguably in contravention of the  
            established rules.  
          
          5)Juvenile Delinquency Proceedings:  Juvenile delinquency  
            appeals are not subject to Penal Code section 1237.1.  (In re  
            Antwon R. (2001) 87 Cal.App.4th 348, 350.)  Section 1237.1  
            referred to an appeal by the defendant from a "judgment of  
            conviction."  Adjudications of juvenile wrongdoing are not  
            "criminal convictions."  (Id. at pp. 351-352.)  Moreover,  
            juvenile appeals are authorized by Welfare and Institutions  
            Code section 800, not Penal Code section 1237.  (Id. at p.  
            350.)

          Presumably then, if this bill were to become law,  juvenile  








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            delinquency appeals would not be subject to compliance with  
            newly-created Penal Code section 1237.2.

          6)Argument in Support:  According to the Judicial Council, the  
            sponsor of this bill, "AB 249 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 costs and burdens associated with a formal  
            appeal."

          7)Argument in Opposition:  According to the California Public  
            Defenders Association, "Although we applaud the effort to  
            increase judicial economy and agree that the court of appeals  
            should not be the court of first resort to correct errors in  
            fines and fees, the proposed language of AB 249 would leave  
            the defendant without any venue to correct errors in fines in  
            fees.

          "Under existing law, the defendant has a limited time to file a  
            notice of appeal.  (30 days in misdemeanor cases and 60 days  
            in felony cases.)  Once the notice of appeal is filed, the  
            trial court loses jurisdiction over the case.  (CCP section  
            916(a); People v. Johnson (1992) 3 C4th 1183.)

          "Typically, most defendants are represented by different lawyers  
            with different skills at the trial and the appellate level.   
            The trial lawyer will believe that there are valid grounds for  
            an appeal beyond any errors in the calculation of fines and  
            fees at the time the notice of appeal filed is.  It is only  
            later, that the appellate lawyer, a second set of eyes, if you  
            will, might determine that the only basis for an appeal is the  
            error in the calculation of fines and fees.  This proposed  
            legislation unless amended would effectively prevent the  
            defendant from being heard in either the trial court or the  
            appellate court.

          "We suggest adding the following amendment at line 24 before the  
            last sentence to address our concerns:








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          "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 motion for correction."

          8)Prior Legislation:  AB 354 (Rogan), Chapter 18, Statutes of  
            1995, prohibit an appeal by a defendant on the ground of an  
            error in the calculation of presentence custody credits unless  
            specified conditions are met.

          REGISTERED SUPPORT / OPPOSITION:
          
          Support


          Judicial Council (Sponsor)


          Opposition


          California Public Defenders Association


          Analysis Prepared  
          by:              Sandy Uribe/PUB. S./(916) 319-3744