People v. Kelley CA3

Filed 6/28/21 P. v. Kelley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C091376

Plaintiff and Respondent, (Super. Ct. Nos. 19CF07295, 19CF04540) v.

ANDREW LAWRENCE KELLEY,

Defendant and Appellant.

After defendant Andrew Lawrence Kelley pleaded no contest to two counts of possessing a controlled substance in jail, the trial court sentenced him to five years in prison and imposed mandatory minimum statutory costs. On appeal, defendant argues the trial court violated due process and Eighth Amendment principles when it imposed costs without first assessing defendant’s ability to pay. Disagreeing, we affirm. FACTUAL AND PROCEDURAL BACKGROUND The underlying facts of defendant’s crimes of conviction are largely irrelevant to the issues raised on appeal. Simply put, in case No. 19CF04540 (case No. 40), defendant

1

pleaded no contest in August 2019 to one count of possessing a controlled substance in jail. (Pen. Code, § 4573.6.)1 In case No. 19CF07295 (case No. 95), defendant pleaded no contest in December 2019 to a new violation of section 4573.6. At a January 2020 sentencing hearing, defense counsel said: “As far as fines and fees goes . . . I see no ability to pay anything there. I’d ask the [c]ourt to strike everything.” The trial court imposed a sentence of five years in state prison, consisting of: four years (the upper term) in case No. 95, and a consecutive term of one year (one-third the middle term) in case No. 40. Regarding costs, the trial court ordered a $300 restitution fine for each case (§ 1202.4), a $40 court operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373) for each conviction. Defendant timely appealed. DISCUSSION I The People argue we should dismiss this appeal for lack of jurisdiction pursuant to section 1237.2, because the sole issue is a claimed error regarding costs, and defendant did not “exhaust available remedies in the trial court,” having failed to move “for correction in the trial court,” regarding the costs. Section 1237.2 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