People v. Lopez CA5

Filed 6/9/22 P. v. Lopez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083270
Plaintiff and Respondent,
(Super. Ct. No. 1064916)
v.
VICTOR LOPEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William
K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Snauffer, J.
Defendant Victor Lopez was convicted of first degree murder in 2007. He was
sentenced to 25 years to life in prison and ordered to pay $5,187.44 in direct victim
restitution and a $10,000 restitution fine. In 2021, approximately 14 years after his
conviction, he filed a motion, in propria persona, “to strike or modify court ordered
restitution, fees, or fines.” (Capitalization omitted.) The trial court understood the
motion to challenge imposition of defendant’s direct victim restitution order and denied
defendant’s motion for multiple reasons, including that it lacked the jurisdiction to hear
the motion. Defendant contends the trial court erred in failing to construe his motion as a
challenge to the restitution fine (rather than merely direct victim restitution) and failing to
reach the merits of that portion of his motion. The People disagree, arguing that the trial
court lacked jurisdiction to hear defendant’s motion, even insofar as it challenged
restitution fines. We dismiss defendant’s appeal.
PROCEDURAL SUMMARY
On February 8, 2007, the Stanislaus County District Attorney filed an amended
information charging defendant with the premeditated murder of Eric Adorno (Pen.
Code,1 § 187, subd. (a); count 1). The amended information further alleged that
defendant committed the offense for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)) and personally discharged a firearm causing death (§ 12022.53, subd. (d)).
On June 7, 2007, the jury found defendant guilty on count 1 and found true that
defendant committed the offense for the benefit of a criminal street gang. The jury found
that defendant did not personally discharge a firearm causing death.
On July 10, 2007, the trial court sentenced defendant to 25 years to life in prison,
and imposed $5,187.44 in direct victim restitution (§ 1202.4, subd. (f)) and a $10,000
restitution fine (§ 1202.4, subd. (b)).
1 All further statutory references are to the Penal Code.
2.
On November 24, 2008, this court conditionally reversed the judgment with
directions to make additional findings. (People v. Lopez (2008) 168 Cal.App.4th 801,
816.) On April 27, 2009, the trial court made additional findings and reinstated the
judgment.
On August 17, 2021, defendant filed a “motion to strike or modify court ordered
restitution, fees, or fines.” (Capitalization omitted.) On the same date, the trial court
denied defendant’s motion in a written order.
DISCUSSION2
Defendant’s motion broadly challenged imposition of “fees, fines, and restitution.”
It also requested that the trial court strike or modify “his [r]estitution in the amount of
$10,000.” Defendant acknowledges that his motion was “not a model of clarity because
it appears to be taken from a boilerplate, omnibus-type pleading attacking fines and fees,”
but nevertheless argues that the trial court erred in failing to construe his motion as a
challenge to the $10,000 restitution fine, and not just the direct victim restitution, which
was imposed in the amount of $5,187.44. He contends that the matter must be remanded
for the trial court to consider whether it should modify the restitution fine. The People
respond that the trial court lacked jurisdiction to hear defendant’s motion insofar as it
challenged or sought modification of the restitution fine, and we must therefore dismiss
defendant’s appeal.3 We agree with the People.
In People v. Turrin (2009) 176 Cal.App.4th 1200 (Turrin), the Court of Appeal
considered whether the trial court had jurisdiction to entertain a motion to modify
restitution fines (imposed in three cases) made after the time to appeal from the
2 Because defendant raises only legal issues on appeal, a factual summary is
omitted.
3 Defendant does not challenge the trial court’s determination that it was without
jurisdiction to modify the direct victim restitution order. The trial court correctly noted
that a trial court lacks jurisdiction to modify a restitution order at a defendant’s request
after execution of the sentence. (People v. Littlefield (2018) 24 Cal.App.5th 1086.)
3.
judgments had passed and after the defendant had commenced serving his aggregate
prison term. (Id. at p. 1203.) The trial court denied the motion without prejudice, and the
defendant appealed. The Court of Appeal dismissed the appeal. (Id. at p. 1208.) The
court noted that generally a trial court lacks jurisdiction to resentence a criminal
defendant after execution of the sentence has begun. (Id. at p. 1204.) There are few
exceptions, and none applied. (Id. at pp. 1204–1206.) Specifically, the trial court had not
been asked to correct a “clerical” error, nor was the sentence “unauthorized” and
therefore correctable at any time. (Id. at p. 1205.) As the appellate court explained,
“ ‘[t]he unauthorized sentence exception is “a narrow exception” to the waiver doctrine
that normally applies where the sentence “could not lawfully be imposed under any
circumstance in the particular case,” for example, “where the court violates mandatory
provisions governing the length of confinement.” [Citations.] The class of nonwaivable
claims includes “obvious legal errors at sentencing that are correctable without referring
to factual findings in the record or remanding for further findings.” ’ ” (Ibid.) Whether
the restitution fine could be lawfully imposed, of course, involved factual issues and did
not present a “pure question of law.” (Turrin, at p. 1207.) Accordingly, there was no
basis upon which the trial court could have acted.
The trial court’s order denying relief in Turrin therefore “did not affect [the
defendant’s] substantial rights and [was] not an appealable postjudgment order.” (Turrin,
supra, 176 Cal.App.4th at p. 1208.) As a consequence, no right to appeal was granted
pursuant to section 1237, subdivision (b) or any other statute. (§ 1237, subd. (b)
[granting a right to appeal “[f]rom any order made after judgment, affecting the
substantial rights of the party”]); Turrin, at p. 1208.) The Court of Appeal therefore
lacked appellate jurisdiction and was required to dismiss the appeal. (Turrin, at p. 1208;
accord, People v. Jinkins (2020) 58 Cal.App.5th 707, 712–713 [no appellate jurisdiction
over defendant’s appeal from an order denying a motion to reduce restitution fine made
after he commenced serving prison sentence].)
4.
The same result as to defendant’s appeal of the order denying his motion is
indicated here. The trial court was without jurisdiction to hear defendant’s motion even
if it should have been construed as a motion to strike or modify the restitution fine.
Because the trial court lacked jurisdiction to hear a motion to strike or modify a
restitution fine, even assuming the trial court should have construed defendant’s motion
as including a request to strike or modify the restitution fine, such a failure did not affect
defendant’s substantial rights. (§ 1237, subd. (b).) For that reason, we dismiss
defendant’s appeal.
DISPOSITION
Defendant’s appeal is dismissed.
5.