P. v. Menjivar

Filed 10/28/20 P. v. Menjivar CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ISRAEL DeJESUS MENJIVAR,
Defendant and Appellant.
B301203
Los Angeles County
Super. Ct. No. MA074163
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kathleen Blanchard, Judge. Dismissed.
Jeanine G. Strong, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Zee Rodriguez, Michael Keller
and Paul S. Thies, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________

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A jury convicted defendant and appellant Israel
DeJesus Menjivar of dissuading a witness—a felony—and two
misdemeanors: battery on a spouse and contempt of court
for violating a domestic violence protective order. On appeal,
Menjivar contends the trial court violated his due process rights
by imposing a restitution fine and court fees without assessing
his ability to pay them. Because the issue is not properly before
us, we dismiss the appeal.
DISCUSSION
Defense counsel failed to comply with Penal Code
section 1237.2
At sentencing, the trial court imposed a restitution fine
of $300 as well as court operations and conviction assessments
of $40 and $30 per count, respectively, for a total of $210 in fees.
The court imposed and stayed a parole revocation restitution fine
of $300.1 Neither Menjivar nor his attorney objected to the
restitution fine or the court assessments or asserted any inability
to pay.
Menjivar’s sole contention on appeal is that the trial court
violated his constitutional rights by not conducting an ability-to-
pay hearing on the restitution fine and court assessments, and
his counsel’s failure to object constituted ineffective assistance
of counsel. Citing People v. Dueñas (2019) 30 Cal.App.5th 1157,
Menjivar asks us to remand the case for an ability-to-pay
hearing. But, because counsel has not complied with Penal Code
section 1237.2,2 that request is not cognizable in this appeal.
Section 1237.2 provides: “An appeal may not be taken
by the defendant from a judgment of conviction on the ground
1 Menjivar agreed to pay $300 in actual victim restitution
and waived his right to a hearing.
2 References to statutes are to the Penal Code.

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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.” (See also People v. Alexander
(2016) 6 Cal.App.5th 798, 801; People v. Hall (2019) 39
Cal.App.5th 502, 504.)
That prerequisite does not apply when the appeal also
presents other issues. (§ 1237.2.) But this is not such a case.
Accordingly, Menjivar’s challenge to the trial court’s imposition
of the restitution fine and court fees must be dismissed without
prejudice to any right he has to seek relief in the trial court.
DISPOSITION
We dismiss Israel DeJesus Menjivar’s appeal. Menjivar’s
motion to stay the appeal is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J. DHANIDINA, J.

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