Filed 3/9/21 P. v. Dixon CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303629
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA288736)
v.
HERMAN JAY DIXON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, George G. Lomeli, Judge. Dismissed.
Eric E. Reynolds, 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, Assistant
Attorney General, David E. Madeo and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
________
Herman Jay Dixon appeals from the superior court’s denial
of his postjudgment motion for modification of sentence to reduce
the restitution fine and parole revocation restitution fine the trial
court imposed in 2006 following Dixon’s conviction of first degree
murder. Because Dixon is appealing from a nonappealable order,
we dismiss the appeal.
PROCEDURAL BACKGROUND
In 2006 a jury found Dixon guilty of first degree murder
(Pen. Code,1 § 187, subd. (a)) and found true multiple firearm
enhancement allegations. In a bifurcated proceeding the trial
court found true Dixon had suffered a prior conviction of a serious
or violent felony within the meaning of the three strikes law
(§§ 667, subds. (b)-(j), 1170.12), which was a serious felony under
section 667, subdivision (a), and he had served three prior prison
terms within the meaning of section 667.5, subdivision (b). The
trial court sentenced Dixon to 80 years to life in prison. The
court imposed a restitution fine of $10,000 (§ 1202.4, subd. (b))
and imposed and suspended a parole revocation restitution fine
in the same amount (§ 1202.45). Dixon appealed, and we
affirmed. (People v. Dixon (Feb. 20, 2008, B196146) [nonpub.
opn.].)
On December 3, 2019 Dixon, representing himself, filed a
“motion for modification of sentence per given restitution . . .
pursuant to . . . § 1202.4(b) [and] 1202.45.” In his motion, Dixon
requested his sentence be modified to reduce the restitution fine
and parole revocation restitution fine to $200 each based on his
1 All further statutory references are to the Penal Code.
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inability to pay the $10,000 fines imposed. On December 6 the
superior court summarily denied the motion. Dixon again
appealed.
DISCUSSION
On appeal, Dixon argues this court’s opinion in People v.
Dueñas (2019) 30 Cal.App.5th 1157 should be applied
retroactively to Dixon’s sentence to allow him to argue his
entitlement to a hearing on his ability to pay the fines imposed at
sentencing in 2006. Dixon asserts it would violate his right to
equal protection under the federal and state constitutions not to
apply Dueñas to his sentence because defendants whose appeals
were not final at the time Dueñas was decided were entitled to
relief, but because Dixon’s appeal was final before Dueñas was
decided, he was not. The People contend Dixon’s appeal should
be dismissed because the superior court did not have jurisdiction
to modify Dixon’s long-since final sentence. The People are
correct.
Generally, a trial court has no jurisdiction to resentence a
defendant after execution of the sentence has begun. (People v.
Karaman (1992) 4 Cal.4th 335, 344; People v. Torres (2020)
44 Cal.App.5th 1081, 1084 [order denying defendant’s motion to
modify sentence to reduce restitution fine imposed at sentencing
was nonappealable order because motion was filed after
defendant’s direct appeal was concluded, and there was no other
basis for trial court jurisdiction].) However, the trial court may
recall the sentence and resentence a defendant within 120 days of
his or her commitment into custody or upon a recommendation of
the secretary of the California Department of Corrections and
3
Rehabilitation, the Board of Parole Hearings, or the district
attorney. (§ 1170, subd. (d)(1); see Dix v. Superior Court (1991)
53 Cal.3d 442, 455 [“Section 1170(d) is an exception to the
common law rule that the court loses resentencing jurisdiction
once execution of sentence has begun.”].) In addition,
“[u]nauthorized sentences and “‘“‘obvious legal errors at
sentencing that are correctable without referring to factual
findings in the record or remanding for further findings’”’” are
correctable at any time. (Torres, at p. 1085.)
Here, Dixon filed his petition for recall and resentencing
more than 120 days after execution of his sentence commenced
(in 2008), and he does not fall within any of the exceptions
allowing correction after the 120-day period. (People v. Torres,
supra, 44 Cal.App.5th at p. 1085.)2 If the trial court does not
have jurisdiction to rule on a motion to vacate or modify a
sentence, an order denying the motion is nonappealable, and any
appeal from the order must be dismissed. (Torres, at p. 1084;
People v. Turrin (2009) 176 Cal.App.4th 1200, 1208; see People v.
Fuimaono (2019) 32 Cal.App.5th 132, 135.)
2 Dixon bases his motion on sections 1202.4, subdivision (b),
and 1202.45. Section 1202.4, subdivision (b), provides for
imposition of a restitution fine; section 1202.45, subdivision (a),
provides for imposition of a parole revocation restitution fine.
Neither section provides the superior court with jurisdiction to
modify a fine imposed at sentencing after a defendant’s judgment
of conviction becomes final.
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DISPOSITION
The appeal is dismissed.
FEUER, J.
We concur:
SEGAL, Acting P. J.
MCCORMICK, J.*
* Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
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