Opinion
A156076
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. RONNY DIXON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 228827)
Ronny Dixon's sole argument on appeal is that the trial court erred by imposing a restitution fine and certain assessments upon him without determining his ability to pay them. Before such an appeal may be taken, Penal Code section 1237.2 requires a defendant to first seek relief and obtain a ruling in the trial court, which Dixon has not done. Since the trial court retains jurisdiction to decide this issue, we dismiss the appeal.
All statutory references are to the Penal Code. --------
BACKGROUND
In May 2018, Dixon pleaded guilty to possessing cocaine for sale. In December 2018, after violating his probation, he was sentenced to three years in county jail with credit for time served. The trial court also imposed certain fees, including a $300 restitution fine, a $40 court operations assessment, and a $30 "immediate critical needs" assessment. Dixon did not object to the imposition of the fine or assessments in the trial court. He appealed from the judgment.
In March 2019, while his appeal was pending, Dixon filed a motion in the trial court pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to vacate or stay the fines and assessments. Twice, he applied for extensions of time to file his opening brief in order to "afford the Superior Court the time to rule on the motion," and we granted those requests. In July 2019, Dixon submitted his opening brief without obtaining any ruling from the trial court on his pending motion.
DISCUSSION
Relying on Dueñas, supra, 30 Cal.App.5th 1157, Dixon's only contention on appeal is the court's imposition of the restitution fine and assessments without a finding of his ability to pay violated his constitutional rights. His appeal is not cognizable, so we dismiss it.
Section 1237.2 states: "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." (§ 1237.2.)
Here, the sole issue Dixon raises on appeal is alleged error in the trial court's imposition of a restitution fine and two assessments. Dixon did not discover the alleged errors until after sentencing, so he moved the trial court to vacate or stay the fines and assessments until the court determined his ability to pay them. To date, however, the trial court has not ruled on the motion. Under these circumstances, section 1237.2 states "[a]n appeal may not be taken" and that "[t]he trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition . . . of fines [or] penalty assessments . . . upon the defendant's request for correction." (§ 1237.2.) Thus, we must dismiss Dixon's appeal.
Dixon describes his efforts to secure a ruling on his motion from the trial court and contends "the remedy for the [trial court's] failure to rule on a motion that [he] was statutorily required to make . . . cannot be the dismissal of the appeal." He says that instead of dismissing this appeal, we should stay it and remand or issue an order directing the trial court to rule on his motion. We cannot. Section 1237 allows a defendant to take an appeal from a final judgment of conviction, which includes a sentence, "[e]xcept as provided in Sections 1237.1, 1237.2, and 1237.5." (§ 1237, italics added.) Section 1237.2 says the trial court retains jurisdiction to correct any error in the imposition of fines or assessments upon the defendant's request for such a correction. (§ 1237.2.) Dixon has made such a request. The trial court has jurisdiction over the matter.
Dixon has filed no petition for writ relief seeking an order directing the trial court to act. In light of our dismissal, such a petition should not be necessary for the court to rule on Dixon's motion under section 1237.2, over which the trial court's jurisdiction is clear.
DISPOSITION
The appeal is dismissed without prejudice to Dixon's possible appeal following the trial court's ruling on his motion brought under section 1237.2.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.