Filed 7/13/21 P. v. Duran CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077346
Plaintiff and Respondent,
v. (Super. Ct. No. SCD280275)
CARLOS REGINO DURAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Melinda J. Lasater, Judge. Dismissed.
Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Steve Oetting and Heather B. Arambarri, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Carlos Regino Duran was convicted of various offenses in
three separate cases, but was sentenced in a single proceeding. His sole
claim on appeal is that under People v. Dueñas (2019) 30 Cal.App.5th 1157,
the trial court violated his constitutional rights to due process and equal
protection by imposing excessive fines, fees and assessments without first
determining his ability to pay them. Alternatively, he summarily asserts
that his counsel provided ineffective assistance by not objecting to the
imposition of those sums of money.
The People maintain Duran forfeited the constitutional challenge by
not raising it below, and the fines and assessments are not unconstitutionally
excessive and did not violate due process.
Duran did not make a claim of error on Dueñas grounds in the trial
court and it is his sole claim on appeal. Therefore, applying Penal Code
section 1237.2,1 we conclude Duran’s appeal is not cognizable and dismiss the
appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In San Diego case No. SCD280275, a jury convicted Duran of unlawful
driving of a vehicle (Veh. Code, § 10851, subd. (a); count 1); buying, receiving,
concealing, selling or withholding a stolen vehicle (§ 496d; count 2); evading
an officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 3);
possession of burglary tools (§ 466; count 4); obtaining personal identifying
information with intent to defraud (§ 530.5, subd. (c)(1); count 5); and
resisting an officer (§148, subd. (a)(1); count 6). The jury found true
allegations that Duran had committed counts 1 through 3 while on bail
release for a felony in San Diego case No. SCE386718 (§ 12022.1, subd. (b)).
In San Diego case No. SCD282291, Duran pleaded guilty to possession
for sale of narcotics (Health & Saf. Code, § 11379, subd. (a); count 1),
transportation of narcotics (Health & Saf. Code, § 11378; count 2) and
resisting arrest (§ 148, subd. (a)(1); count 3). He admitted allegations that he
possessed 28.5 grams or more of methamphetamine (§ 1203.073, subd. (b)(2)),
1 All undesignated statutory references are to the Penal Code.
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that the methamphetamine was not for personal use (§ 1210, subd. (a)) and
that when he committed counts 1 through 3, he was on bail release for a
felony in No. SCE386718 (§ 12022.1, subd. (b)).
In No. SCE386718, Duran pleaded guilty to one count of receiving
stolen property with a prior allegation involving a stolen vehicle. (§§ 496d,
666.5 subd. (a).)
The court sentenced Duran for all three cases to an aggregate term of
13 years four months. In case No. SCD280275, the court imposed six years
on count 1 and one year four months on count 3, plus two years for the
section 12022.1, subdivision (b) enhancement. In case No. SCD282291, the
court imposed two years on count 1. In case No. SCE386718, the court
imposed a term of two years on count 1. It imposed fines fees and
assessments, which are challenged here.
DISCUSSION
As stated, Duran’s sole contention on appeal is a challenge under
People v. Dueñas, supra, 30 Cal.App.5th 1157, to the trial court’s imposition
of restitution, fines, and assessments without first considering his ability to
pay them. But Duran did not first raise this claim in the trial court.
Section 1237.2 provides that an appeal “may not be taken” unless a
defendant “first presents the claim in the trial court at the time of
sentencing” or made a “motion for correction” in the trial court after
sentencing if the defendant seeks to challenge an “error in the imposition or
calculation of fines penalty assessments, surcharges, fees, or costs . . . .”
(§ 1237.2; see § 1237, subd. (a) [“An appeal may be taken by the defendant . . .
[¶] . . . Except as provided in Sections 1237.1, 1237.2, and 1237.5, from a
final judgment of conviction”]; see also People v. Jenkins (2019) 40
Cal.App.5th 30, 37 (review granted, dism. and remanded); People v. Hall
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(2019) 39 Cal.App.5th 502, 504-505 [dismissing appeal]; People v. Alexander
(2016) 6 Cal.App.5th 798, 800-801 [dismissing appeal].)
In People v. Hall, supra, 39 Cal.App.5th 502, the Court of Appeal
observed section 1237.2 “broadly applies to an error in the imposition or
calculation of fees. The plain language of the statute ‘does not limit [its]
reach only to situations where the fee simply did not apply at all or was a
result of mathematical error.’ [Citation.] Section 1237.2 applies any time a
defendant claims the trial court wrongly imposed fines, penalty assessments,
surcharges, fees, or costs without having first presented the claim in the trial
court . . . .” (Id. at p. 504.) We agree with Hall’s reasoning, and conclude that
under section 1237.2’s broad language, Duran’s appeal is not cognizable.
Accordingly, we dismiss the appeal.
DISPOSITION
The appeal is dismissed.
O’ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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