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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B 304710

(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 C ourt 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 Charl es S. Lee, Deputy Attorney General, for Plaintiff and Respondent.2 In 2018, d efendant and appellant Jose Reyes (defendant) was sentenced to spend 42 years and four months to life in prison for multiple attempted murder and robbery co nvictions. We
affirm ed the judgment of conviction on direct appeal. ( People v. Reyes ( Mar . 2, 2020 , B 290993 ) [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

t o 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 dec ide defendan t’ 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 as sociated 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
defend ant 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. T he opinion in Dueñas

, supra , 30 Cal.App.5th 11 57, 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.3

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 h is ability to pay under Dueñas

. Defendant
cited Penal Code section 1237.2
, a statute that gives a trial court ju risdiction under limited circumstances to correct an error in the imposition of fines and fees notwithstanding th e filing of a notice of appeal, as the procedural vehicle for his motion.
T he 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 conclude s Dueñas was wrongly
decided.

II. DISCUSSION We have a sua sponte obligation to assure we have jurisdic tion 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 or dinarily divests the trial court of jurisdiction over the case.” ( People v. Torres (2020) 44 Cal.App.5th 1081, 1086 ( Torres ).) The statute provides : “ A n 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, or4

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 firs t 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 defe ndant ’ 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 ad ded.)
Penal Code section 12 37.2’ 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 notwi thstanding the pending appeal.” ( Torres

, supra , 44 Cal.App.5th at 1087 [reviewing the statute’s legislative history].) The last sentence of Penal Co de 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 a ppeal raises additional issues. “In this situation, a defendant must seek relief in the Court of Appe al for any issue regarding the imposition or calculation of fines, assessments, and fees, including, if necessary, by requesting leave to file a suppleme ntal brief. [Citation.] The Court of Appeal then decides all the issues of the case, preventing piece meal [ 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
D ueñas argument he makes now

— and Dueñas was on the books
well before he filed his opening brief. D efendant pursued his
Dueñas claim only in the trial court via a Penal Code section 1237.2 motion. As we have seen, s ection 1237.2 makes no provision for cont inuing trial court jurisdiction under these
circum stances. T he trial court therefore lacked ju risdiction 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 t rial 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 I N THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J. KIM, J.