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