Filed 12/13/16
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION EIGHT


THE PEOPLE,                            B270019

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. MA066694)
       v.

SIMEON ALEXANDER,                     ORDER DISMISSING APPEAL

       Defendant and Appellant.



       Simeon Alexander pled no contest on September 1, 2015,
to forcible rape (count 1; Penal Code1 § 261, subd. (a)(2)),
kidnapping (count 3; § 207, subd. (a)), injuring a spouse,
cohabitant, partner, or parent of child (count 4; § 273.5, subd.
(a)), and attempted murder (count 6; § 664/187(a)). Pursuant to
the plea agreement, additional charges for assault with intent to
commit a felony (count 2; § 207) and criminal threats (count 5;
§ 422, subd. (a)) were dismissed along with sentencing
enhancement allegations under section 667.61, subdivisions (b)
and (e).


1    All further section references are to the Penal Code unless
otherwise specified.
       Alexander stipulated there was a factual basis for his plea
pursuant to People v. West (1970) 3 Cal.3d 595. He waived his
rights under People v. Arbuckle (1978) 22 Cal.3d 749 and People
v. Harvey (1979) 25 Cal.3d 754. He also waived all county jail
custody credits. The trial court accepted his plea, finding
Alexander expressly and intelligently waived his rights and his
plea was freely and voluntarily made with an understanding of
the nature and consequences of it.
      At the January 7, 2016 sentencing hearing, Alexander
moved to withdraw his plea on the ground his medication
rendered him incapable of understanding the consequences of his
plea. The trial court denied the request to withdraw the plea,
finding no good cause to do so. It then denied probation pursuant
to the agreed-upon disposition and sentenced him to the high
term of nine years in state prison for attempted murder plus
consecutive terms of one-third the midterm for the remaining
counts2 for a total sentence of 13 years and eight months.
The trial court also ordered the imposition of a $6,000 victim
restitution fine to be paid to the state fund, a $6,000 parole
revocation fine to be imposed and suspended, a $40 court security
fee per count for a total of $160, and a $30 mandated facility
assessment fee per count for a total of $120. Alexander filed a
notice of appeal on February 3, 2016.




2     As to count 1 for forcible rape, the court selected one-third
the midterm of six years, which is two years. As to count 3 for
kidnapping, the court selected one-third the midterm of 60
months, which is 20 months. As to count 4 for injuring a spouse,
cohabitant, partner or parent of child, the trial court selected one-
third the midterm of three years, which is one year.




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      On appeal, Alexander contends the trial court violated an
implicit term of the plea agreement that the restitution fine
would be the statutory minimum of $300 when it issued a $6,000
victim restitution fine instead. We find Alexander‟s appeal not
cognizable under section 1237.2 and therefore, dismiss it.
      Effective January 1, 2016, 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 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.”
      Alexander‟s sole issue on appeal is the purportedly
erroneous imposition of a $6,000 victim restitution fee. Yet, he
has made no claim of error to the trial court, either at the time of
sentencing or after, as required by section 1237.2. Alexander
argues that provision does not apply to his appeal because he is
complaining of a violation of the plea bargain, not a
miscalculation. We disagree. The plain language of section
1237.2 clearly makes a claim to the trial court a prerequisite to
any appeal which solely involves “an error in the imposition or
calculation of fines, penalty assessments, surcharges, fees, or




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costs . . .” (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1131
[statutory construction begins with “„the plain, commonsense
meaning of the language used by the Legislature‟”].) Contrary to
Alexander‟s interpretation, this language does not limit section
1237.2‟s reach only to situations where the fee simply did not
apply at all or was a result of mathematical error. The phrase
“an error in the imposition . . . of . . . fees” includes an error
involving the imposition of a higher than bargained for fee.
       Accordingly, we dismiss Alexander‟s appeal filed February
3, 2016. (See People v. Clavel (2002) 103 Cal.App.4th 516, 519
[in section 1237.1, a parallel provision requiring a motion to trial
court to correct errors in presentence custody credits before an
appeal is cognizable, dismissal is required where no motion to
correct was made to the trial court].)
CERTIFIED FOR PUBLICATION




                                           BIGELOW, P.J.

We concur:



                  RUBIN, J.




                  FLIER, J.




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