People v. Chessman CA2/3 ( 2021 )

Filed 10/27/21 P. v. Chessman CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B311528
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA266098)
v.
KELVIN SCOTT CHESSMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Dismissed.
Richard B. Lennon and Cheryl Lutz, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
——————————
Kelvin Scott Chessman appeals from an order denying his
postjudgment motion to waive or modify a $10,000 restitution
fine imposed pursuant to Penal Code1 section 1202.4, subdivision
(b). His appellate counsel has filed a brief asking this court to
proceed under People v. Serrano (2012) 211 Cal.App.4th 496.
Because the superior court lacked jurisdiction to rule on
Chessman’s motion, its order denying the motion is not
appealable. We accordingly dismiss the appeal.
On August 1, 2006, following his conviction of multiple
offenses, Chessman was sentenced to a term of life without the
possibility of parole plus 25 years to life for one count of murder,
a consecutive life term plus 20 years for one count of attempted
murder, and a consecutive life term plus 25 years to life for a
separate count of attempted murder. The sentences imposed on
all remaining counts were ordered to run concurrently. Without
objection, the trial court also imposed a $10,000 restitution fine
pursuant to section 1202.4, subdivision (b), and a $20 court
operations assessment pursuant to section 1465.8, subdivision
(a)(1).
A number of years after his sentencing, Chessman filed
a motion to waive or modify the restitution fine.2 Citing People v.
Dueñas (2019) 30 Cal.App.5th 1157, Chessman argued that he
was indigent, and that the imposition of the restitution fine
without determining his ability to pay violated his constitutional
right to due process of law and the Eighth Amendment
1 All statutory references are to the Penal Code.
2 The specific date on which Chessman filed his motion is
not set forth in the record.
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prohibition against excessive fines. On January 27, 2021, the
superior court summarily denied Chessman’s motion.
On March 15, 2021, Chessman filed an appeal from the
order denying his motion. We appointed counsel to represent
Chessman on appeal. After examining the record, appellate
counsel filed an opening brief raising no issues and asking this
court to follow the procedures set forth in People v. Serrano,
supra, 211 Cal.App.4th 496. On August 25, 2021, we advised
Chessman that he had 30 days in which to submit a
supplemental brief setting forth any grounds for appeal or
contentions he wished for this court to consider. Chessman
did not submit a supplemental brief.3
“Generally, once a judgment is rendered and execution of
the sentence has begun, the trial court does not have jurisdiction
to vacate or modify the sentence. [Citations.] 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
3 People v. Serrano, supra, 211 Cal.App.4th 496 concluded
that review under People v. Wende (1979) 25 Cal.3d 436 does
not apply to appeals from orders denying postconviction relief.
People v. Cole (2020) 52 Cal.App.5th 1023, 1039 to 1040, review
granted October 14, 2020, S264278, held that an appeal from a
postconviction order may be dismissed if counsel has found no
arguable issues and the defendant has not filed a supplemental
brief. The California Supreme Court is currently considering
what procedures appointed counsel and appellate courts should
follow when counsel determines that an appeal from an order
denying postconviction relief lacks arguable merit. (People v.
Delgadillo, review granted Feb. 17, 2021, S266305.) Pending
further guidance from our Supreme Court, and out of an
abundance of caution, we examine Chessman’s appeal under
Wende.
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any appeal from such an order must be dismissed.” (People v.
Torres (2020) 44 Cal.App.5th 1081, 1084; accord, People v.
Jinkins (2020) 58 Cal.App.5th 707, 712.) Here, the execution of
Chessman’s sentence began well before he filed the motion that
is the subject of this appeal. While “[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), Chessman’s claim of error, which is based on a factual
evaluation of his ability to pay a restitution fine, does not fall
within any of these exceptions. Because the superior court did
not have jurisdiction to rule on Chessman’s motion, its order
denying the motion is nonappealable, and the appeal from such
order must be dismissed. (See Torres, at p. 1083 [order denying
postjudgment motion to modify restitution fine based on inability
to pay was nonappealable]; Jinkins, at p. 713 [same]; People v.
Turrin (2009) 176 Cal.App.4th 1200, 1203 [same].)
Even if the order were appealable, Chessman forfeited his
claim of error by failing to object to the restitution fine when it
was imposed. Decided in 2019, People v. Dueñas, supra, 30
Cal.App.5th at page 1164, held that “due process of law requires
the trial court to conduct an ability to pay hearing and ascertain
a defendant’s present ability to pay” before imposing a court
facilities or court operations assessment or a restitution fine.
However, prior to the Dueñas decision, a defendant had a
statutory right to challenge the amount of a restitution fine
imposed under section 1202.4 based on an inability to pay.
Indeed, at the time of Chessman’s sentencing in 2006, section
1202.4 expressly authorized the court to consider a defendant’s
inability to pay when setting the amount of a restitution fine
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above the then $200 statutory minimum. (See former § 1202.4,
subd. (d) (Stats. 2005, ch. 240, § 10.5) [in “setting the amount of
the fine . . . in excess of the two hundred-dollar
($200) . . . minimum, the court shall consider any relevant factors
including . . . the defendant’s inability to pay”].) Because
Chessman never raised any objection to the $10,000 restitution
fine at his sentencing, he has forfeited his claim on appeal. (See
People v. Miracle (2018) 6 Cal.5th 318, 356 [where “defendant did
not object to the [restitution] fine at his sentencing hearing, he
has forfeited his challenge”]; People v. Smith (2020) 46
Cal.App.5th 375, 395 [“defendant forfeits a challenge to the
trial court’s imposition of a restitution fine above the statutory
minimum for failing to consider his or her ability to pay if the
defendant did not object in the trial court”]; People v. Gutierrez
(2019) 35 Cal.App.5th 1027, 1033 [defendant “forfeited any
ability-to-pay argument regarding the restitution fine by failing
to object”].)
We have examined the entire record, and are satisfied
Chessman’s attorney has fully complied with the responsibilities
of counsel and no arguable issue exists. (People v. Kelly (2006) 40
Cal.4th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.)
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
MATTHEWS, J.*
We concur:
EDMON, P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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