Filed 2/23/22 P. v. Dixon CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON EDWARD DIXON,

Defendant and Appellant.

 D079067

 (Super. Ct. No. C1765213)

APPEAL from a judgment of the Superior Court of Santa Clara County, 

Socrates Manoukian, Judge. Affirmed.

Lori A. Quick, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters and Jeffrey M. 

Laurence, Assistant Attorneys General, Rene A. Chacon and Juliet B. Haley, 

Deputy Attorneys General for Plaintiff and Respondent. 
2

Jason Edward Dixon pleaded no contest to several charges in case Nos.

C1765213, B1793132, C1770118, C1771354, C1887270, and C1892750. As to 

case No. C1892750, he admitted he committed six crimes while released on

bail. (Pen. Code,1 § 12022.1.)

Under the plea agreement, the court sentenced Dixon to 12 years in 

state prison. It ordered total victim restitution of $172,988.04 as follows: in 

case No. B1793132, $1800 to Steven Foster; in case No. C1770118, $500 to 

Maekin Healy; in case No. C1892750 jointly and severally $27.97 to Veronica 

Niem, $4445.86 to Linda Hambly, $714.21 to the United States Postal Service 

and $500 to Shandesh Veerapur; and in case No. C1765213, $165,000 to 

David Delano Ward. It also ordered Dixon to pay total restitution fines of 

$14,500 (§ 1202.4, subd. (b)), a $40 fee (§ 1202.5), $124 in penalty 

assessments, a court operations assessment of $2160 (§ 1465.8) and a 

criminal conviction assessment of $1620. 

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164

(Dueñas), in which the court held that imposition of a restitution fine without 

consideration of a defendant’s ability to pay violates the constitutional 

guarantee of due process, Dixon contends the trial court erred by imposing 

the court facilities fee, court operations assessment, section 1202.4 restitution 

fine of $14,500, and the victim restitution fine of $172,988.04 without 

determining his ability to pay them.2 He also argues imposition of the 

1 Undesignated statutory references are to the Penal Code. 

2 Several cases have held that Dueñas was wrongly decided, reasoning

that restitution fines should be reviewed not under due process principles but 

under the Eighth Amendment’s excessive fines clause, as this court held in 

People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, 

S257844. The California Supreme Court will resolve two issues in Kopp: “(1) 

Must a court consider a defendant’s ability to pay before imposing or 
3

restitution fine violated his Eighth Amendment protection against excessive 

fines. He alternatively claims his counsel provided ineffective assistance by

failing to object to the fines, fees and assessments at trial. Dixon maintains 

the record supports an inference he has no future ability to pay the fines, fees 

and assessments now that he has been sentenced to a prison term. 

The People argue we should dismiss this appeal because Dixon failed to 

comply with section 1237.2.3 They alternatively argue Dixon has not made 

out a claim for ineffective assistance of counsel; his punitive restitution fine is 

not unconstitutionally excessive and any error was harmless because the 

record did not indicate Dixon lacked the ability to pay the fines, fees and 

assessments. We affirm.

executing fines, fees, and assessments? [and] (2) If so, which party bears the 

burden of proof regarding defendant’s inability to pay?” Because we conclude 

any error was harmless, we need not address the areas of disagreement with 

Dueñas by this and other courts. (See, e.g., People v. Allen (2019) 41 

Cal.App.5th 312, 318, 326-327; People v. Hicks (2019) 40 Cal.App.5th 320, 

review granted Nov. 26, 2019, S258946.)

3 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.”
4

FACTUAL AND PROCEDURAL BACKGROUND

Case No. C1765213 

On June 6, 2017, the People charged Dixon with first degree burglary 

(§§ 459/460, subd. (a); count 1) and theft or unauthorized use of a vehicle 

(Veh. Code, § 10851, subd. (a); count 2). 

Case No. B1793132 

On July 24, 2017, the People charged Dixon with second degree 

burglary (§§ 459/460, subd. (b); count 1); first degree burglary (§§ 459/460 

subd. (a); count 2); reckless driving while evading an officer (Veh. Code, 

§ 2800.2, subd. (a); count 3) and misdemeanor vandalism (§ 594, subd. 

(a)/(b)(2)(A); counts 4 and 5). It was also alleged that he had three prison 

priors within the meaning of section 667.5, subdivision (b). 

Case No. C1770118 

On August 3, 2017, the People charged Dixon with second degree 

burglary (§§ 459/460, subd. (b); counts 1 and 6); attempted theft or 

unauthorized use of a vehicle (§ 664, Veh. Code, § 10851, subd. (a); count 2); 

attempted mail theft (§§ 664/530.5, subd. (e); count 3); petty theft of personal 

property (§§ 484/488; count 4); driving with a suspended or revoked license 

(Veh. Code, § 14601.1, subd. (a); count 5); and theft or unauthorized use of a 

vehicle (Veh. Code, § 10851, subd. (a); count 7). It was further alleged with 

respect to counts 1, 2, 6 and 7, that he had been on bail when he committed 

the offenses (§ 12022.1), and that he had three prior convictions within the 

meaning of section 667.5, subdivision (b). 

Case No. C1771354 

On August 18, 2017, the People charged Dixon with reckless driving 

while fleeing a police officer (Veh. Code, § 2800.2, subd. (a); count 1),

possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); 
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count 2); possession of burglary tools (§ 466; count 3); driving with a 

suspended or revoked license (Veh. Code, § 14601.1, subd. (a); counts 4 and 

7); resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1); count 5); 

and hit and run driving causing property damage. (Veh. Code, § 20002, 

subd. (a); count 6.) It was further alleged that he had been on bail when he 

committed the offenses (§ 12022.1) and that he had three prison priors 

(§ 667.5, subd. (b)).

Case No. C1887270 

On March 27, 2018, the People charged Dixon with reckless driving 

while fleeing an officer (Veh. Code, § 2800.2, subd. (a); count 1). It was also 

alleged he was on bail when the offense was committed. (§ 12022.1.) 

Case No. C1892750 

On June 7, 2018, the People charged Dixon with using personal 

identifying information without authorization (§ 530.5, subd. (a); counts 1, 3, 

5, 7, 9, 11, 13, 17, 18, 21, 23, 25, 26, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47, 

and 48); using an altered stolen or counterfeit access card with an aggregate 

value of $950 (§ 484g, subd. (a); counts 2, 4, 6, 8, 10, 12, 14, 18, 20, 22, 24, 28, 

30, 32, 34, 36, 38, 40, 42, 44, 46, and 49); acquiring four or more access cards 

(§ 484e, subd. (b); count 15); second degree burglary (§ 460, subd. (b); count 

16); acquiring or retaining possession of personal identifying information of 

10 or more people with intent to defraud (§ 530.5, subd. (c)(3); count 50); 

felony vandalism (§ 594, subd. (b)(1); count 51); taking a vehicle with intent 

to permanently deprive the owner of possession (Veh. Code, § 10851, subd. 

(a); count 52); buying or receiving a stolen motor vehicle (§ 496d, subd. (a); 

counts 53-55); failure to appear while released on bail (§ 1320.5; counts 56-

61); battery on a peace officer (§ 243, subd. (b); count 62); resisting a peace 

officer (§ 148.1, subd. (a)(1); count 63); making, altering, or repairing a key 
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and other instrument knowing and believing it to be used in the commission 

of a crime (§ 466; count 64); possession of methamphetamine (Health & Saf. 

Code, § 11377, subd. (a); count 65); and possession of controlled substance 

paraphernalia (Health & Saf. Code, § 11364; counts 66, 67). Six on-bail 

enhancements were also alleged. (§ 12022.1.)

At the sentencing hearing, David Ward, the victim with the largest 

monetary claim, testified regarding his losses following the burglary by Dixon 

and others: “[D]uring the theft, [Dixon] destroyed furniture, looted our 

garage and cabinets in our house, he stole cash, heirlooms and other 

sentimental items. Overall, he participated in a theft and destruction of 

about $165,000 of monetary loss and untold suffering. This includes the 

firearms, scopes, accessories, clips, theft of the [all-terrain vehicle] ATV and 

farm equipment as well as damage to personal property and property loss. 

[¶] We provided the Sheriff’s Department, District Attorney, and probation 

officer a full listing of the firearms, which you have, the scopes and 

accessories, with make, model, and serial numbers so they can try and 

recover them and get them off the street. They were all in brand new 

condition. Our life’s work collecting these firearms is now lost[.]”

The court ruled: “I’ll make the order joint and several. Restitution is 

as prayed for. There being no probative evidence in contradiction to what Mr. 

Ward testified, that’s the order.”

Although at sentencing defense counsel failed to object to the 

imposition of the fines, fees, and assessments, defense counsel subsequently 

filed a motion with the trial court under section 1237.2 to vacate the fines 

and fees and stay the restitution fee under Dueñas, supra, 30 Cal.App.5th 

1157. The superior court denied Dixon’s request: “The fines and fees 

imposed were the statutory minimum and therefore did not implicate any 
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issue of whether [Dixon] had the ability to pay the fines and fees that were 

ordered. [¶] [He] knows his employment history and his prospects for 

current and future employment better than does the Prosecution and this 

Court. [¶] [ ] Dixon has provided information that he has had employment in 

the construction trades as a plumber. At one point he reported that he had 

been self-employed in the construction trade for three years. He attempted to 

take over his father’s construction business when his father died in 2016 but 

let it go because he did not have a license. [¶] Therefore, the appropriate 

burden of producing evidence on his inability to pay statutory fines and fees 

should be on [ ] Dixon. He would have been provided with a hearing to 

determine his ability to pay fines and fees if he requested one.” We therefore 

do not regard the issue as forfeited or need to address the ineffective 

assistance of counsel claim. 

DISCUSSION

As the People argue, we agree any assumed error was harmless beyond 

a reasonable doubt given future wages Dixon may earn in prison and upon 

his release from prison. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035 

[Dueñas error subject to harmless error analysis under Chapman v. 

California (1967) 386 U.S. 18]; People v. Johnson (2019) 35 Cal.App.5th 134, 

139-140 [same]; see People v. Jenkins (2019) 40 Cal.App.5th 30, 41, review 

granted Oct. 23, 2019, S258729, review dismissed and cause remanded July 

29, 2020 [court may consider wages defendant may earn in prison on his 

ability to pay fines and assessments]; People v. Aviles (2019) 39 Cal.App.5th 

1055, 1076 [“ ‘ “Ability to pay does not necessarily require existing 

employment or cash on hand.” [Citation.] “[I]n determining whether a 

defendant has the ability to pay a restitution fine, the court is not limited to 

considering a defendant’s present ability but may consider a defendant’s 
8

ability to pay in the future.” [Citation.] This include[s] the defendant’s 

ability to obtain prison wages and to earn money after his release from 

custody]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; § 2085.5 

[outlining how a restitution fine balance may be collected from prison 

wages].) 

The probation report states Dixon was 34 years old at the time of 

sentencing, and he had no “health problems/handicaps.” In 2015, he 

completed a plumbing program. Dixon completed his General Educational 

Development (GED) program and worked for three years in the construction

industry before his arrest for the instant offenses.

“[E]very able-bodied” prisoner must work while imprisoned. (§ 2700.) 

“Wages in California prisons currently range from $12 to $56 a month.” 

(People v. Jones, supra, 36 Cal.App.5th at p. 1035, citing in part Cal. Code 

Regs., tit. 15, § 3041.2, subd. (a)(1).) “ ‘The state may garnish between 20 and 

50 percent of those wages to pay the section 1202.4, subdivision (b) 

restitution fine.’ ” (People v. Lowery (2020) 43 Cal.App.5th 1046, 1060; see 

also Jones, at p. 1035, citing § 2085.5, subd. (a) & Cal. Code Regs., tit. 15, 

§ 3097, subd. (f).) We conclude that while it may take some time for Dixon to 

pay the fines, fees and assessments, that circumstance does not support his 

inability to make payments on these amounts from prison wages. (People v. 

Aviles, supra, 39 Cal.App.5th at p. 1077; accord, People v. Lowery (2020) 43 

Cal.App.5th 1046, 1060-1061 [“While it may take [defendants] considerable 

time to pay the amounts imposed against them, it is clear they can make 

payments from either prison wages or monetary gifts from family and friends 

during their lengthy prison sentences”].) Nothing in the record suggests 

Dixon is unable to work a prison job; rather, given his work history, 
9

inferences may be drawn to the contrary. “In our view, this forecloses a 

meritorious inability to pay argument.” (Jones, at p. 1035.) 

DISPOSITION

The judgment is affirmed. 

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.