People v. Jenkins (2019) 40 Cal.App.5th 30, Subsequent history: REVIEW GRANTED on 11/26/2019 (S258729) with briefing deferred pending decision in People v. Frahs (2018) 27 Cal.App.5th 784, review granted 12/27/2018 (S252220/G054674).

Jenkins was convicted of felony offenses with enhancements and was sentenced to 13 years plus 25 years to life under the Three Strikes law. The trial court imposed a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)(1)); an $80 court security fee (Pen. Code, § 1465.8); a $60 immediate critical needs account fee (Gov. Code, § 70373); and a $154 criminal administration justice fee (Gov. Code, § 29550.1). Jenkins did not request an ability to pay hearing. While his appeal was pending, and after the People filed their respondent’s brief, Jenkins moved in the trial court to vacate the fines, assessments, relying on Dueñas.

Holdings/Reasoning:

• The trial court lacked jurisdiction to rule on Jenkins’ motion to vacate. Penal Code section 1237.2 (which provides that a 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) did not apply because Jenkins’ appeal raised issues other than the imposition of fines, assessments, and fees (section 1237.2 only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs is the sole issue on appeal).
• On the facts of this case, Jenkins forfeited his right to challenge the imposition of the fines, assessments, and fees. Jenkins had the statutory right to object to the maximum $10,000 restitution fine imposed by the court based on ability to pay (see Pen. Code, § 1202.4, subd. (c)), but did not do so. (Citing People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) The court reached the same conclusion with respect to the remaining assessments and fees. If Jenkins “chose not to object to the $10,000 restitution fine based on inability to pay, he surely would not complain on similar grounds regarding an additional $294 in fees . . . .”
• Unlike the probationer defendant in Dueñas, it is entirely appropriate to consider the wages Jenkins may earn in prison on the inability-to-pay issue.