People v. Reyes CA2/5

Filed 7/2/21 P. v. Reyes CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B304710
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA445657-01)
v.
JOSE REYES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Leslie A. Swain, Judge. Dismissed.
Rachel Varnell, 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, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and Charles S. Lee, Deputy Attorney
General, for Plaintiff and Respondent.
In 2018, defendant and appellant Jose Reyes (defendant)
was sentenced to spend 42 years and four months to life in prison
for multiple attempted murder and robbery convictions. We
affirmed the judgment of conviction on direct appeal. (People v.
Reyes (Mar. 2, 2020, B290993) [nonpub. opn.] (Reyes I).) While
defendant’s direct appeal was pending in this court, defendant
filed a Penal Code section 1237.2 motion in the trial court seeking
to vacate certain fines and fees under People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas). The trial court denied that motion—
again, while his direct appeal in this court was still pending—and
we now decide whether we have jurisdiction to decide defendant’s
appeal from the trial court’s denial.
I. BACKGROUND
A jury found defendant guilty of two counts of attempted
willful, deliberate, and premeditated murder, three counts of
robbery, and one count of identity theft. The jury additionally
found true associated gang (Pen. Code, § 186.22, subd. (b)(1)) and
firearm (Pen. Code, § 12022.53, subds. (b), (d)) enhancements.
The trial court imposed an aggregate, indeterminate sentence of
42 years and four months to life in prison. The court also ordered
defendant to pay court operations and facilities assessments, plus
a $300 restitution fine.
Defendant filed a notice of appeal from the criminal
judgment on June 25, 2018. The opinion in Dueñas, supra, 30
Cal.App.5th 1157, issued in January 2019. Defendant’s opening
brief in Reyes I—filed several months later, in April 2019—
argued, among other things, that there was insufficient evidence
to support the jury’s true finding on the gang enhancement.
Defendant, however, did not raise a Dueñas argument.
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Defendant’s appeal was fully briefed in December 2019, and both
sides waived oral argument. We filed our opinion in Reyes I on
March 2, 2020.
In November 2019—while the proceedings in Reyes I were
underway in this court—defendant filed a motion in the trial
court to vacate the court operations and facilities assessments
imposed, and to stay his restitution fine, unless and until the
prosecution proved his ability to pay under Dueñas. Defendant
cited Penal Code section 1237.2, a statute that gives a trial court
jurisdiction under limited circumstances to correct an error in the
imposition of fines and fees notwithstanding the filing of a notice
of appeal, as the procedural vehicle for his motion.
The trial court denied defendant’s Penal Code section
1237.2 motion in January 2020. The court’s denial order stated
the court agreed with the holding of People v. Hicks (2019) 40
Cal.App.5th 320, a case that concludes Dueñas was wrongly
decided.
II. DISCUSSION
We have a sua sponte obligation to assure we have
jurisdiction to decide an appeal. (People v. Mendez (1999) 19
Cal.4th 1084, 1094; Jennings v. Marralle (1994) 8 Cal.4th 121,
126-127.) Here, jurisdiction is lacking.
Penal Code section 1237.2 is an exception to the rule that
“the filing of a notice of appeal ordinarily divests the trial court of
jurisdiction over the case.” (People v. Torres (2020) 44
Cal.App.5th 1081, 1086 (Torres).) The statute 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
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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.” (Emphasis added.)
Penal Code section 1237.2’s “primary purpose . . . is to
encourage and facilitate the prompt and efficient resolution in
the trial court of challenges to fines, assessments, and fees that
would otherwise be asserted on direct appeal; and the statute’s
second sentence furthers that purpose by giving trial courts the
power to resolve such challenges notwithstanding the pending
appeal.” (Torres, supra, 44 Cal.App.5th at 1087 [reviewing the
statute’s legislative history].) The last sentence of Penal Code
section 1237.2 recognizes this purpose is not served by permitting
a criminal defendant to challenge fines and fees in the trial court
when a pending appeal raises additional issues. “In this
situation, a defendant must seek relief in the Court of Appeal for
any issue regarding the imposition or calculation of fines,
assessments, and fees, including, if necessary, by requesting
leave to file a supplemental brief. [Citation.] The Court of
Appeal then decides all the issues of the case, preventing
piecemeal [l]itigation in separate forums. [Citation.]” (People v.
Jenkins (2019) 40 Cal.App.5th 30, 38, review granted Nov. 26,
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2019, S258729, review dismissed Jul. 29, 2020, S258729
(Jenkins).)
In Reyes I, defendant raised several issues unrelated to the
Dueñas argument he makes now—and Dueñas was on the books
well before he filed his opening brief. Defendant pursued his
Dueñas claim only in the trial court via a Penal Code section
1237.2 motion. As we have seen, section 1237.2 makes no
provision for continuing trial court jurisdiction under these
circumstances. The trial court therefore lacked jurisdiction to
rule on defendant’s Penal Code section 1237.2 motion and we
must accordingly dismiss his appeal. (Torres, supra, 44
Cal.App.5th at 1084 [“If the trial court does not have jurisdiction
to rule on a motion to vacate or modify a sentence, an order
denying such a motion is nonappealable, and any appeal from
such an order must be dismissed”].)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J. KIM, J.
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