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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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,

Plaintiff and Respondent, 

v.

JOSE REYES,

Defendant and Appellant.

 B304710

 (Los Angeles County

 Super. Ct. No. BA445657-01)

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.
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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, 
5

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.