Filed 8/24/20 P. v. Thomas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B299481
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA066546)
v.
DEMONTE ANTONE
THOMAS,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Daviann L. Mitchell, Judge. Dismissed.
Benjamin Owens, 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, Chung L. Mar and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Demonte Antone Thomas appeals from a
postjudgment order denying his motion to reduce his fines and
assessments, pursuant to People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas).1 We conclude that the trial court did not have
jurisdiction to consider the motion and therefore dismiss the
appeal.
II. BACKGROUND
A. Underlying Criminal Proceedings
The underlying facts in this case were discussed in a prior
appeal. (People v. Thomas (B287376, Feb. 19, 2019) [nonpub.
opn.].) We summarize the relevant facts as follows: A jury
convicted defendant of first degree murder (Pen. Code,2 § 187,
subd. (a)) and found that he personally and intentionally
discharged a firearm causing great bodily injury and death
(§ 12022.53, subd. (d)). On January 5, 2018, the trial court
sentenced defendant to 50 years to life in state prison. The trial
court also imposed: a $10,000 restitution fine (§ 1202.4, subd.
(b)); a parole revocation restitution fine of $10,000, which was
1 There is a split of authority regarding Dueñas and whether
it was correctly decided. (See People v. Belloso (2019) 42
Cal.App.5th 647, 649.) Our Supreme Court has granted review
in People v. Kopp (2019) 38 Cal.App.5th 47, reviewed granted
November 13, 2019, S257844, to resolve this issue.
2 Further statutory references are to the Penal Code unless
otherwise indicated.
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stayed until parole was revoked (§ 1202.45); a $30 criminal
conviction assessment (Gov. Code, § 70373, subd. (a)); and a $40
court facilities assessment (§ 1465.8).
Defendant appealed, arguing that his trial counsel was
ineffective for failing to request a jury instruction. Defendant did
not assert an inability to pay the fines and assessments. On
February 19, 2019, we affirmed the conviction. (People v.
Thomas, supra, B287376.)
On March 23, 2019, defendant submitted a letter to the
trial court challenging the fines and assessments pursuant to
section 1237.2. Defendant requested that the court reduce the
restitution fine to $300 and stay its imposition pending an ability
to pay hearing. He also requested that the court strike the
assessments. On April 26, 2019, the remittitur issued.
B. Ability to Pay Proceedings
On April 9, 2019, the trial court appointed the Los Angeles
County Public Defender’s Office to represent defendant and set
the matter for a hearing. On May 13, 2019, the court ordered the
court’s financial evaluator to produce a report on defendant’s
financial status.
On June 24, 2019, after the trial court heard argument on
the issue and considered the financial evaluator’s report, the
court denied defendant’s motion. Defendant timely appealed.
III. DISCUSSION
Defendant submitted his letter requesting a reduction in
his fines and assessments while his appeal was pending. “[T]he
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general rule [is] that an appeal from an order [or judgment] in a
criminal case removes the subject matter of that order [or
judgment] from the jurisdiction of the trial court.” (Anderson v.
Superior Court of Solano County (1967) 66 Cal.2d 863, 865.)
Notwithstanding this general rule, defendant contends that “by
the terms of section 1237.2, the trial court had concurrent
jurisdiction with the court of appeal to address th[is] issue[,]”
even after defendant filed his notice of appeal. Section 1237.2
provides, in full: “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.”
Defendant interprets the language limiting the application
of section 1237.2 to those “cases where the erroneous imposition
or calculation of fines, penalty assessments, surcharges, fees, or
costs are the sole issue on appeal” to “mean that the requirement
of filing a motion as a prerequisite to raising the issue on appeal
only exists if no other issues for appeal are raised.” This is an
unreasonable interpretation of section 1237.2, which plainly
states that “[t]his section only applies in cases where the
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erroneous imposition or calculation of fines, penalty assessments,
surcharges, fees, or costs are the sole issue on appeal.” (Italics
added.) It does not state that the motion portion of section 1237.2
only applies to appeals solely concerning the imposition of fines
and fees. (Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175,
1198 [in interpreting a statute, “‘“[w]e begin with the plain
language of the statute”’”].) We agree with the holding of People
v. Jenkins (2019) 40 Cal.App.5th 30, 39, that because the
defendant’s appeal was not limited to a challenge of the
imposition or calculation of fines, assessments, and fees, the trial
court lacked jurisdiction to consider defendant’s motion.
That the remittitur issued before the trial court ruled on
defendant’s motion does not change our analysis. “[T]he essence
of remittitur is the returning or revesting of jurisdiction in an
inferior court by a reviewing court.” (Gallenkamp v. Superior
Court (1990) 221 Cal.App.3d 1, 10.) “Once we finally resolve a
criminal appeal, and after the time has passed for the Supreme
Court to grant review, we issue a remittitur to remit the
appellate court judgment to the trial court, to divest the appellate
court of further jurisdiction, and to transfer jurisdiction back to
the trial court. (Cal. Rules of Court, rule 8.272.) ‘Remittitur
transfers jurisdiction back to the inferior court so that it may act
upon the case again, consistent with the judgment of the
reviewing court.’” (People v. Awad (2015) 238 Cal.App.4th 215,
223.) But the jurisdiction of the court to which a matter is
returned “is contained in its remittitur.” (Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 701.) Our Supreme Court
has stated: “When there has been a decision upon appeal, the
trial court is reinvested with jurisdiction of the cause, but only
such jurisdiction as is defined by the terms of the remittitur. The
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trial court is empowered to act only in accordance with the
direction of the reviewing court; action which does not conform to
those directions is void. [Citations.]” (Hampton v. Superior Court
of Los Angeles County (1952) 38 Cal.2d 652, 655.)
Here, the remittitur indicated that the opinion, which
affirmed the judgment of conviction, was final. Accordingly, the
trial court was only empowered to enforce the judgment. (§ 1263
[“If a judgment against the defendant is affirmed, the original
judgment must be enforced”].) Because the trial court did not
have jurisdiction to rule on defendant’s motion to reduce his fines
and assessments, the order denying the motion is nonappealable,
and the appeal from that order must be dismissed. (People v.
Torres (2020) 44 Cal.App.5th 1081, 1084.)
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IV. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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