Elimination of the Probation Supervision Fee under PC 1465.9 Applies Retroactively

People v. Clark (Cal. Ct. App., July 29, 2021, No. A158238) 2021 WL 3205435, at *1

Summary: Clark appealed and challenged the imposition of a monthly $100 probation supervision fee, following a violation of his probation while his  appeal was pending. Assembly Bill 1869 repealed the statute authorizing the probation supervision fee, Penal Code section 1203.1b.

Clark argued that he is entitled to the retroactive benefit of Assembly Bill 1869, and  asked that  the court order vacatur of the fee imposed on him under section 1203.1b.

Clark’s failure to bring the issues he raises here to the trial court’s attention does not bar the appeal under section 1237.2. Because the $100 probation supervision fee was authorized at the time it was imposed, the “erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs [is not] the sole issue on appeal.” (§ 1237.2.)

The court agreed with  with Clark that Assembly Bill 1869 applies and struck the $100 fee and vacated the sentencing order.

Appealability of Probation Supervision Fee Under Section 1237.2-Issue of First Impression

 Assembly Bill No. 249 added section 1237.2 to the Penal Code and 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.”

Section 1237.2 accurately states the rule that “an appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court.” (Anderson v. Superior Court (1967) 66 Cal.2d 863, 865, 59 Cal.Rptr. 426, 428 P.2d 290.) But section 1237.2, like sections 1237.1 and 1237.5, serves as an exception to this general rule. (People v. Jenkins (2019) 40 Cal.App.5th 30, 37, 252 Cal.Rptr.3d 782 (Jenkins).) Under section 1237.2, the trial court retains jurisdiction to correct any errors related to the imposition or calculation of fines or fees, even after the filing of an appeal. “ ‘There is no time limitation upon the right to make the motion to correct the sentence…. The court’s power to correct its judgment includes corrections required not only by errors of fact (as in the mathematical calculation) but also by errors of law.’ ” (People v. Jordan (2018) 21 Cal.App.5th 1136, 1140, 230 Cal.Rptr.3d 313, quoting People v. Fares (1993) 16 Cal.App.4th 954, 958, 20 Cal.Rptr.2d 314; see People v. Alexander (2016) 6 Cal.App.5th 798, 801, 211 Cal.Rptr.3d 572 [noting section 1237.2 broadly applies to an error in the imposition or calculation of fees and as such, “does not limit [its] reach only to situations where the fee simply did not apply at all or was a result of mathematical error”].)

The general rule is that exclusive jurisdiction shifts to the appellate court once a notice of appeal is filed, but since the review of “ ‘erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs’ ” on appeal may needlessly force the expenditure of appellate resources, the statute carves out an exception preserving trial court jurisdiction to address such error. (§ 1237.2; Jordan, supra, at p. 1142, 230 Cal.Rptr.3d 313.) But the exception is limited. Erroneous imposition or calculation of “fines, penalty assessments, surcharges, fees, or costs” must be the “sole issue” presented on appeal. (§ 1237.2.)

The exception does not apply in appeals where the appellate court must deal with other issues not falling into that category. (Jenkins, supra, 40 Cal.App.5th at p. 37, 252 Cal.Rptr.3d 782.) “[I]f issues other than the imposition or calculation of such fines, assessments, and fees are being appealed, … the limited exception provided by section 1237.2 to section 1235 no longer applies. In this situation, a defendant must seek relief in the Court of Appeal for any issue regarding the imposition or calculation of fines, assessments, and fees, including, if necessary, by requesting leave to file a supplemental brief. (See Cal. Rules of Court, rule 8.200(a)(4).) The Court of Appeal then decides all the issues of the case, preventing piecemeal litigation in separate forums.” (Id. at p. 38, 252 Cal.Rptr.3d 782.)

Here, the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs  was not  the sole issue on appeal.

Clark’s challenge to the $100 probation supervision fee—is not a claim of erroneous imposition or calculation of a fee or fine and  issues presented in this appeal do not fall within section 1237.2.

The challenged fee was correctly imposed and correctly calculated at the time of its imposition, but due to a change in the law—if Assembly Bill 1869 applies to the $100 per month fee imposed—the fee lacks any current legal basis. Because there was no “error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs” (§ 1237.2) at the time the challenged fees and fines were imposed, both the letter and underlying rationale of section 1237.2 militate in favor of addressing the issue Clark raises now, rather than requiring him to bring it to the trial court’s attention first by motion for correction.

This is an issue of first impression.

The $100 Probation Supervision Fee Order Was Not Final for Retroactivity Purposes

When Clark violated his probation in 2019, the trial court executed the original sentence, and Clark timely appealed the 2019 order.

The  decision in People v. France (2020) 58 Cal.App.5th 714, 272 Cal.Rptr.3d 689, review granted February 24, 2021, S266771, determined that an order suspending execution of a sentence is not final for Estrada retroactivity purposes until it reaches final disposition in the highest court authorized to review it.

In People v. Esquivel (2021) 11 Cal.5th 671, 679, 279 Cal.Rptr.3d 659, 487 P.3d 974, the court held that a sentence whose execution is suspended may be final for purposes of appealability, but it is not final for purposes of the Estrada retroactivity analysis.

Assembly Bill 1869 amends the Penal Code by adding the following section: “1465.9. (a) On and after July 1, 2021, the balance of any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 62, italics added.)

The plain language of this statute means that any “balance” on his account for probation supervision fees—that is, any amounts imposed but not paid—is “unenforceable and uncollectible.” (Stats. 2020, ch. 92, § 62.) Clark may not be charged such fees, and to the extent he already has been charged them, any fees not yet paid are no longer collectible. Second, “any portion of” the judgment against Clark that imposes probation supervision fees “shall be vacated.”


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