Appellant’s failure to challenge penalty assessments on drug fees in his first appeal waived that claim for the purposes of future appeals. In 2016 Jordan pleaded no contest to several drug offenses. In his first appeal he challenged the denial of a motion to suppress evidence. After the opening brief was filed, Jordan sent a request to the superior court under Penal Code section 1237.2 to strike penalty assessments that had been applied to a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5; People v. Watts (2016) 2 Cal.App.5th 223). The trial court denied his request. While the first appeal was still pending, Jordan initiated a second appeal where he challenged the penalty assessments on the criminal laboratory analysis fee and the drug program fee. Held: Affirmed. Penal Code section 1237.2 requires a defendant to try and correct a fine or fee issue in the trial court before raising the matter on appeal, where the fine issue is the sole issue on appeal. In his first appeal Jordan raised a suppression issue, so he could have also raised the penalty assessment issue at the same time. Instead he sought correction of the penalty assessment in the superior court and then initiated a separate appeal. He also could have sought leave to file a supplemental brief in his first appeal or to consolidate the two appeals, but he did not. The legislative intent behind section 1237.2 was to conserve judicial resources and require the efficient presentation of claims in a single forum. “[A] defendant must either file a motion to correct sentence with the trial court when the sole issue he or she seeks to challenge is one proscribed in section 1237.2, or file an appellate brief including this issue when a defendant seeks to challenge issues in addition to the issues proscribed in section 1237.2. Pursuing an appeal, while also pursuing a motion to correct sentence, accomplishes the opposite goal the Legislature was trying to accomplish by enacting” section 1237.2. [Editor’s Note: In People v. Moore (2017) 12 Cal.App.5th 558, review granted 9/13/2017 (S243387/C079171), the Third District disagreed with the holding in Watts, concluding the criminal laboratory analysis fee is a fine subject to penalty assessments.]
Imposition of penalty assessments on both the drug program and the criminal laboratory analysis fees did not constitute an unauthorized sentence that was correctable despite waiver of the issue. In People v. Scott (1994) 9 Cal.4th 331, 354, the court held there is an “unauthorized sentence” exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. An “unauthorized” sentence is one that could not be lawfully imposed under any circumstance in the particular case. The Court of Appeal concluded that this case does not fall within that exception because the trial court was authorized to impose penalty assessments on both the drug program and the criminal laboratory analysis fees.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C084592M.PDF