Filed 5/11/22 P. v. B.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Daniel Rogers, Acting Assistant Attorney General, and Arlene A. Sevidal, Randall D. Einhorn, and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.

In 2021, B.M. admitted to first degree murder and, as part of her disposition, the judge imposed the mandatory minimum restitution fine of $100. On appeal, B.M. argues the judge violated her due process right to a determination on her ability to pay as articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The People argue B.M. forfeited her challenge by failing to object to the fine. We agree B.M. has forfeited her challenge, and therefore affirm.

I. FACTS

The Riverside County District Attorney charged B.M. under a juvenile wardship petition (Welf. & Inst. Code, § 602, unlabeled statutory references refer to this code) with first degree murder (Pen. Code, § 187, subd. (a)) with an arson special circumstance allegation. (Pen. Code, § 190.2, subd. (a)(17)(H).)

On July 1, 2021, B.M. admitted to the first degree murder charge in exchange for the prosecution and judge dismissing the special circumstance allegation. The judge declared B.M. a ward under section 602 and ordered her committed to a secure youth treatment facility. He set her maximum length of confinement at 25 years to life, with her wardship to terminate at age 25. The judge also imposed a $100 restitution fine, to which B.M. raised no objection.

On July 29, 2021, B.M. appealed the disposition.

While her appeal was pending, on August 31, 2021, she filed a letter motion in the trial court in which she cited Dueñas and argued the judge erred by imposing the minimum restitution fine without first determining whether she could pay it.

The judge held a hearing on the letter motion on September 10, 2021. After expressing skepticism that Dueñas was rightly decided, he concluded that in any event, B.M.’s due process rights had not been violated as he had no doubt she could afford the fine.

On September 24, 2021, B.M. filed a second notice of appeal, this one challenging the post-disposition order denying her letter motion. We now consider both her appeal from the judgment and post-disposition order denying her letter motion.

II. ANALYSIS

B.M. argues the judge erred by imposing a $100 restitution fine without first determining whether she had the ability to pay it. She contends the holding of Dueñas—which required courts to determine whether an adult defendant has the ability to pay a minimum restitution fine before imposing it—applies equally to the juvenile justice system.

The People argue B.M. forfeited her right to challenge the restitution fine on appeal because she failed to object to the fine when the judge imposed it. They also argue that B.M.’s post-judgment letter motion was not sufficient to preserve the issue for appeal because the trial court lacked jurisdiction to hear the motion given the pending appeal. B.M. argues her letter motion was sufficient to preserve the issue as a trial court retains jurisdiction to correct errors in the imposition or calculation of fines. (Pen. Code, § 1237.2) In the alternative, B.M. argues any failure to object constituted ineffective assistance of counsel.

Generally speaking, we are limited to deciding issues the appellant preserved for appeal. “In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim.” (People v. Scott (1994) 9 Cal.4th 331, 351.) “ ‘ “ ‘[A] constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ” ’ ” (People v. McCullough (2013) 56 Cal.4th 589, 593, citing In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) Because any constitutional right may be forfeited by a failure to object, these rules apply regardless of whether a defendant claims a violation of her due process rights or violation of the prohibition against excessive fines. These general forfeiture rules also apply to a defendant claiming they did not receive an ability to pay hearing under Dueñas if they were sentenced after Dueñas was decided. (See People v. Nelson (2011) 51 Cal.4th 198, 227 [holding defendant forfeited his right to challenge a $10,000 restitution fine on ability to pay grounds because it did “At the time of his . . . sentencing, the law called for the court to consider defendant’s ability to pay in setting a restitution fine, and defendant could have objected at the time.”].)

On this record, we conclude B.M. forfeited her right to challenge the trial judge’s alleged failure to hold an ability to pay hearing. Dueñas had been published for more than two years by the time of B.M.’s disposition on July 1, 2021. While no court has extended Dueñas’s holding to apply to juvenile offenders, we see no reason why it shouldn’t, and we also see no reason for not objecting on that ground (unless, as we discuss below, that reason was strategic because the judge had selected the minimum fine).[1] Whether such an objection would have been successful is beside the point; it was necessary to preserve the issue for our review.

Nor did B.M.’s post-disposition letter preserve this issue for appeal because the trial court lacked jurisdiction to consider the letter motion. “A timely notice of appeal, as a general matter, . . . largely divests the superior court of jurisdiction and vests it in the Court of Appeal.” (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) “Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. [Citations.] Thus, action by the trial court while an appeal is pending is null and void.” (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473.)

B.M. argues her letter motion was an attempt to correct an error in the judge’s disposition order. She points to Penal Code section 1237.2, which states, “[t]he 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.” However, these sorts of clerical errors are “to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ [Citation.] Any attempt by a court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted.” (In re Candelario (1970) 3 Cal.3d 702, 705.)

Here, the fine was authorized (indeed, statutorily required), and there was no clerical error. (See People v. Clark (2021) 67 Cal.App.5th 248, 257 [“The situation we have here is . . . one where the challenged fee was correctly imposed and correctly calculated at the time of its imposition”].) In the alternative, B.M. argues her counsel was constitutionally ineffective for failing to object and request an ability to pay hearing. To establish ineffective assistance of counsel, “the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) On direct appeal, a defendant establishes ineffective assistance “only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (Ibid.) “[R]arely will an appellate record establish ineffective assistance of counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 122.) We will find ineffective assistance of counsel only if “there could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.)

“[A] defense counsel’s decision whether to object to the imposition of fines and fees can encompass factors beyond a defendant’s financial circumstances, especially in serious cases involving potentially long prison sentences.” (People v. Acosta (2018) 28 Cal.App.5th 701, 707.) In general, “[w]e cannot speculate, given the absence of information before us, what led to defense counsel’s decision not to object, but a myopic focus on [the juvenile offender’s] financial circumstances that neglects any of the other factors at play in a sentencing hearing may not provide an accurate picture of counsel’s strategic calculus.” (Id. at p. 707.)

In this case, we can easily hypothesize a strategic reason for counsel’s failure to object to the fine. When imposing a fine greater than the minimum, section 730.6 requires the judge to consider a number of factors, including “the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the minor as a result of the offense, and the extent to which others suffered losses as a result of the offense.” (§ 730.6, subd. (d)(1).) The judge imposed the minimum fine despite B.M. admitting to a heinous crime. It is entirely possible that defense counsel declined to object for fear of calling attention to this disparity and causing the judge to impose a higher fine. This hypothesis is supported by the fact that if the judge had wanted to impose a higher fine, he would have also been required to consider B.M.’s ability to pay.

But even if we couldn’t identify a clear strategic reason defense counsel might have chosen not to object, that wouldn’t necessarily mean finding counsel was ineffective. In the adult context, other courts have held that where “[w]e have no idea why counsel did not raise the ability to pay issue,” or “whether the fine[ ] . . . or [fees] were of any consequence,” a defendant’s ineffective assistance of counsel claim would be better addressed through a petition for habeas corpus, not on direct appeal. (People v. Keene (2019) 43 Cal.App.5th 861, 864-865.)

For these reasons, we conclude B.M. forfeited her right to challenge the restitution fine on appeal and affirm the order imposing the fine under section 730.6.

III. DISPOSITION

We affirm.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.

[1] We note that one court has held that Dueñas’s holding does not apply to juvenile offenders. (In re M.B. (2020) 44 Cal.App.5th 281.) Though we need not decide the issue here, we respectfully note that we find the analysis in In re M.B. unpersuasive.