People v. Jinkins

Filed 12/15/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301344
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. MA067109)
v.
JAIMIE JINKINS,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Denise McLaughlin-Bennett, Judge.
Dismissed.
Sarvenaz Bahar, 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, David E. Madeo and
Analee J. Brodie, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________________
Defendant and appellant Jaimie Jinkins appeals the
trial court’s order denying his motion to modify a $5,100
restitution fine imposed pursuant to Penal Code section
1202.4, subdivision (b)(1).1 He contends that the fine was
unauthorized because the trial court did not assess his
ability to pay at the sentencing hearing or when it ruled on
his motion to modify the fine two years later. Jinkins
contends that the trial court’s denial of his motion to modify
the restitution fine is an appealable order because it is an
“order made after judgment affecting the substantial rights
of a party” under section 1237.2 We conclude that Jinkins’s
motion requesting that the trial court reduce the restitution
fine is a nonappealable order, and dismiss the appeal.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 On appeal, Jinkins also contends that a
corresponding $5,100 parole revocation fine that was
imposed and suspended pursuant to section 1202.45 is
unauthorized. Jinkins did not challenge the parole
revocation fine in the trial court; however, as the parole
revocation fine is set in the same amount as the restitution
fine pursuant to statute (§ 1202.45, subd. (a)), a reduction of
the restitution fine would necessarily require a reduction of
the parole revocation fine.
2
PROCEDURAL HISTORY
Plea and Sentencing
On February 6, 2017, Jinkins pleaded no contest to
assault by means likely to cause great bodily injury (§ 245,
subd. (a)(4)), and the allegations that: he personally inflicted
great bodily injury to the victim (§ 12022.7, subd. (a)); he
acted for the benefit of or at the direction of a criminal street
gang (§ 186.22, subd. (b)(1)(A)); and a principal used a
firearm in the commission of the crime (§ 12022.53, subds.
(b) & (e)). Jinkins agreed to a 17-year sentence with waiver
of all earned custody credits, and imposition of a restitution
fine and corresponding parole revocation fine of between
$300 and $10,000 (§§ 1202.4, subd. (b), 1202.45). At the plea
colloquy, the court advised Jinkins that it would impose a
restitution fine “ranging from $300 to $10,000. The court
typically will impose a minimum restitution fine of $300 a
year of incarceration, so it will be 17 times that number.”
Jinkins stated that he understood.
The trial court then sentenced Jinkins to 17 years in
state prison, and imposed various fines and fees including a
$5,100 restitution fine (the $300 minimum multiplied by the
17 years of Jinkins’s sentence) and a $5,100 parole
revocation fine. (§§ 1202.4, subd. (b), 1202.45.) Jinkins did
not object to imposition of the fines and fees or request an
ability to pay hearing.
3
Motion to Reduce Restitution Fine to $200
On July 8, 2019, Jinkins filed a motion in the Superior
Court, seeking to reduce the $5,100 restitution fine to $200,
an amount he contended was the statutory minimum.3
Jinkins contended that People v. Frye (1994) 21 Cal.App.4th
1483 (Frye), was wrongly decided. In Frye, the appellate
court held that the trial court did not err in imposing a
statutory minimum restitution fine of $200, despite the
defendant’s statement that he was unable to pay the fine,
because in the absence of evidence that the defendant was
ineligible for prison work assignment, the court could
presume the fine would be paid out of the defendant’s prison
wages. (Id. at pp. 1486–1487.) In so holding, the court
reconciled former Government Code section 13967,
subdivision (a), which provided that, upon conviction of
felony, the court must impose a restitution fine of no less
than $200 subject to the defendant’s ability to pay, and
former section 1202.4, subdivision (a), which provided that,
upon conviction of felony, the court must impose a
3 Jinkins made the request that his restitution fine be
reduced to $200 pursuant to former Government Code
section 13967, which was repealed in 2003. Imposition of
restitution fines is now governed by section 1202.4, which
requires imposition of a $300 minimum fine for felony
convictions. Jinkins’s motion appears to have been copied
from a motion written in the mid-1990’s to early 2000’s, as it
was based on statutes that had been repealed or amended
well before he was sentenced.
4
restitution fine as provided in Government Code section
13967, subdivision (a), regardless of the defendant’s present
ability to pay. (Ibid.) It interpreted the statutes to require
the trial court to consider a defendant’s ability to pay when
imposing even a minimum restitution fine, but permitted the
court to consider the defendant’s future financial prospects,
including prison wages. (Ibid.) The Frye court further held
that trial courts are not required to make an express
determination of a defendant’s ability to pay on the record.
(Id. at pp. 1485–1486.) Jenkins contended that, correctly
interpreted, former Government Code section 13967
required the trial court to impose the minimum fine of $200
unless it had evidence before it that the defendant was able
to pay a greater fine.
Jinkins argued that the trial court erred in imposing
the $5,100 restitution fine in his case, based on its
assumption that he could pay the fine using future prison
wages. Jinkins asserted that he would not have the
opportunity to work in prison, and that it was unlikely he
would obtain regular employment after release as he lacked
necessary work skills.
Jinkins further contended that his challenge had not
been forfeited by counsel’s failure to raise it at the
sentencing hearing, even if the decision were discretionary.
In making his argument against forfeiture, Jinkins
contended that People v. Scott (1994) 9 Cal.4th 331, which
held that a defendant forfeits any challenge to a trial court’s
discretionary sentencing determinations that the defendant
5
failed to raise in the trial court, had prospective application
only, and was decided after he was sentenced. Moreover,
Jinkins argued the trial court’s imposition of the restitution
fine without first holding an ability to pay hearing
constituted an unauthorized sentence that could be
challenged at any time.
The People did not oppose Jinkins’s motion.
Trial Court’s Ruling
The trial court denied Jinkins’s motion without holding
a hearing to determine his ability to pay. The court
construed Jinkins’s statutory arguments as “due process
claims” based on the claims raised in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).4 First, it found that Jinkins
4 In Dueñas, the defendant requested, and the trial
court granted, a hearing to determine her ability to pay a
$30 court facilities assessment (Gov. Code, § 70373), a $40
court operations assessment (§ 1465.8, subd. (a)(1)), and a
$150 restitution fine (§ 1202.4, subd. (b)), as well as
previously imposed attorney fees. (Dueñas, supra, 30
Cal.App.5th at pp. 1161–1162.) Dueñas presented
undisputed evidence of her inability to pay, and the trial
court waived the attorney fees. (Id. at p. 1163.) However,
the court was statutorily required to impose the court
facilities assessment and court operations assessment, and
prohibited from considering Dueñas’s inability to pay as a
“‘compelling and extraordinary reason[]’” that would permit
waiver of the minimum restitution fine. (Ibid.) It therefore
imposed the assessments and fine despite its finding that
6
had forfeited his claims: “Consistent with Dueñas, a
defendant must have, in the first instance, contested in the
trial court his or her ability to pay the fines, fees and
assessments to be imposed, and at a hearing present
evidence of his or her inability to pay the amounts
contemplated by the trial court.” Second, “because the
sentencing judge imposed a restitution fine above the
statutory minimum, the statutory scheme expressly
permitted the judge to take the defendant’s ability to pay
into account in setting the fine. (See § 1202.4, subd. (c).)”
The restitution fine “appear[ed] appropriate, based on the
nature of the crimes committed and the sentence imposed.”
Jinkins timely appealed. His notice of appeal
additionally argued that he was unemployed at the time of
his arrest and that prison work would compensate him at a
rate of between “$0.8 to $0.18 per hour.”
Dueñas was unable to pay them. (Ibid.) The Court of
Appeal reversed, holding that due process requires trial
courts to determine a defendant’s ability to pay before it
may impose the assessments mandated by section 1465.8
and Government Code section 70373, and requires trial
courts to stay execution of any restitution fine imposed
under section 1202.4, subdivision (b), until it has been
determined that the defendant has the ability to pay the
fine. (Id. at pp. 1172–1173.)
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DISCUSSION
“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 any appeal from such an order
must be dismissed. [Citations.] . . . [¶] There are
exceptions to the general rule. A court may recall a sentence
and resentence a defendant under certain circumstances
within 120 days of the defendant’s custody commitment.
(§ 1170, subd. (d)(1).) Resentencing is also authorized under
the circumstances specified in sections 1170.126, 1170.18,
and 1170.95. Courts may correct computational and clerical
errors at any time. [Citation.] Unauthorized 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.
[Citations.]” (People v. Torres (2020) 44 Cal.App.5th 1081,
1084–1085.)
Here, the execution of Jinkins’s sentence began before
he filed the motion at issue. On appeal, he argues that the
sentence was unauthorized under Dueñas and section 1237
as an “order made after judgment affecting the substantial
rights of the party,” and therefore excepted from the general
rule that the trial court lacked jurisdiction to rule on his
8
motion, which would require that the appeal be dismissed.
Jinkins’s claim lacks merit.
“‘The 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.”’ (People v. Brach (2002)
95 Cal.App.4th 571, 578.)” (People v. Turrin (2009) 176
Cal.App.4th 1200, 1205 (Turrin).)
Whether viewed as a due process claim under Dueñas
(as the trial court saw it) or as a statutory claim (as it
appears to this court), Jinkins’s contention is based on
factual arguments concerning his ability to pay, and does not
fall within the exception carved out for unauthorized
sentences. The trial court therefore lacked discretion to
review the motion.5 Accordingly, the appeal is dismissed.
5 “Section 1237, subdivision (b), provides that a
defendant may appeal ‘[f]rom any order made after
judgment, affecting the substantial rights of the party.’
Since the trial court lacked jurisdiction to modify the
restitution fines, its order denying [Jinkins’s] motion
requesting the same did not affect his substantial rights and
is not an appealable postjudgment order. (People v. Chlad
(1992) 6 Cal.App.4th 1719, 1725–1726.)” (Turrin, supra, 176
Cal.App.4th at p. 1208.)
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DISPOSITION
The appeal is dismissed.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
10