People v. Johnson CA6

Filed 1/25/21 P. v. Johnson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047505
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS052400A)
v.
RODRICK JOHNSON,
Defendant and Appellant.
Appellant Rodrick Johnson filed a postjudgment motion in the trial court
challenging the imposition of restitution fines and a court operations assessment in his
criminal case without holding a hearing on his ability to pay them. The court denied the
motion, and Johnson appealed. His appellate counsel filed an opening brief under People
v. Serrano (2012) 211 Cal.App.4th 496 (Serrano) raising no issues on appeal. For the
reasons explained below, we conclude that Johnson’s appeal is taken from a
nonappealable order and thus dismiss his appeal.
I. FACTS AND PROCEDURAL BACKGROUND
In 2007, Johnson pleaded no contest to two counts of robbery and one count of
kidnapping (Pen. Code, §§ 207, 211).1 He was sentenced to serve 40 years in prison.
1
Unspecified statutory references are to the Penal Code.
Regarding the fines and fees, the trial court imposed a $10,000 restitution fine
(§ 1202.4, subd. (b)), a suspended $10,000 parole revocation restitution fine (§ 1202.45),
and a $60 court operations assessment (§ 1465.8). The trial court also ordered victim
restitution in the amount of $301,359 (§ 1202.4, subd. (f)). Johnson did not appeal from
the judgment of conviction.2
Over 12 years after he was sentenced, on September 25, 2019, Johnson filed an ex
parte motion requesting that the trial court vacate the court operations assessment and
restitution fines3 pursuant to section 1237.2 and People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas) (motion).4 He further argued that he had not forfeited his due process
argument under Dueñas.
2
In December 2018, a panel of this court issued an unpublished opinion
dismissing an appeal by Johnson of a trial court order denying his postjudgment motion
to correct, reduce, or modify his sentence by striking the term imposed for a firearm
enhancement he received at sentencing. Johnson argued that the recent passage of Senate
Bill No. 620 entitled him to such relief. This court rejected that contention and also
concluded that his supplemental brief, which requested habeas relief, failed to raise an
arguable issue on appeal. (See People v. Johnson (Dec. 21, 2018, H045741) 2018 WL
6716996, at *1–2.) On our own motion, we take judicial notice of the record in that case,
No. H045741. (See Evid. Code, §§ 452, subd. (d), 459.)
3
Johnson’s motion also requested that the trial court vacate a “conviction
assessment,” but the abstract of judgment attached to his motion does not reflect that the
trial court imposed such an assessment. Government Code section 70373, authorizing
imposition of assessments on criminal convictions (known as a court facilities
assessment), did not take effect until January 1, 2009, well after Johnson’s 2007
conviction. (Gov. Code, § 70373, subd. (a)(1), People v. Fleury (2010) 182 Cal.App.4th
1486, 1489.)
4
Johnson’s motion also appeared to request that the trial court vacate its order on
victim restitution. Other than noting in his supplemental brief on appeal that direct
victim restitution is distinct from a restitution fine, Johnson does not raise any claim
related to the direct victim restitution he was ordered to pay and, consequently, has
abandoned any claim related to that form of restitution. In any event, Dueñas
distinguished direct victim restitution from a restitution fine, stating that victim restitution
“goes directly to victims and compensates them for economic losses they have suffered
because of the defendant’s crime” and that victim restitution was not at issue in that case.
(Dueñas, supra, 30 Cal.App.5th at p. 1169.)
2
On October 9, 2019, the trial court summarily denied Johnson’s motion, and
Johnson timely appealed the trial court’s order. We appointed counsel to represent
Johnson in this court. Appointed counsel filed an opening briefing pursuant to Serrano,
supra, 211 Cal.App.4th 496 that raised no issues. We notified Johnson of his right to
submit written argument on his own behalf within 30 days.
Johnson timely filed a supplemental brief on his own behalf. In his supplemental
brief, Johnson challenges primarily the restitution fine of $10,000 imposed pursuant to
section 1202.4, subdivision (b). Johnson alleges the restitution fine was unlawful
because there was no hearing conducted on his “individual ability to make restitutional
[sic] payment.” To support his argument that a hearing was required in his case, Johnson
relies primarily on Dueñas. He also appears to argue that the restitution fine was barred
by the excessive fines clause in the Eighth Amendment of the United States Constitution,
relying primarily on People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37
Cal.4th 707, 728.
Addressing forfeiture, Johnson further argues that at the “time of sentence and
trial, [he] was not made aware of his right to contest the fine through the court or through
counsel as the counsel under [Dueñas]” had done and that we may, as have other courts,
“decline [] to find forfeiture.” He further states, citing to a statute relating to prison
inmate indigency (§ 5007.7), that we must find that he “did not waive his right to contest
the fine imposed exceeding his ability or inability to pay.” Johnson contends we must
remand his case to the trial court for further factfinding on his ability to pay.
II. DISCUSSION
Because Johnson has filed a supplemental brief, we do not dismiss the appeal as
abandoned but instead consider his contentions. (See People v. Cole (2020) 52
Cal.App.5th 1023, 1039–1040, review granted Oct. 14, 2020, S264278 (Cole).)
We begin by analyzing the threshold issues of jurisdiction and appealability.
“Generally, once a judgment is rendered and execution of the sentence has begun, the
3
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.” (People v. Torres (2020) 44 Cal.App.5th 1081, 1084 (Torres).)
There are some exceptions to this general rule regarding jurisdiction to vacate or
modify a sentence after the judgment is rendered and the sentence is executed, but
Johnson’s “claim under Dueñas, which is based upon factual arguments concerning his
ability to pay, does not fall within any of these exceptions.” (Torres, supra, 44
Cal.App.5th at p. 1085; see also People v. Turrin (2009) 176 Cal.App.4th 1200, 1204–
1208.) More specifically, even assuming arguendo that Dueñas was correctly decided,5
the restitution fine here does not fall within the “ ‘ “unauthorized sentence” ’ ” exception,
which is “ ‘ “ ‘a narrow exception.’ ” ’ ”6 (See People v. Jinkins (2020) 58 Cal.App.5th
707, 712–713 (Jinkins); see also G.C., at p. 1130; People v. Avila (2009) 46 Cal.4th 680,
729.) Johnson fails to articulate in his supplemental brief any arguable claim that the trial
court had jurisdiction to entertain his motion and made an error when it denied his
motion.
5
Panels of this court and other Courts of Appeal have reached differing
conclusions on whether Dueñas was correctly decided, and the issue is pending before
the California Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47,
review granted Nov. 13, 2019, S257844; People v. Hicks (2019) 40 Cal.App.5th 320,
325–329, review granted Nov. 26, 2019, S258946.)
6
As described above, Johnson also appears to argue that the restitution fine is
barred by the Eighth Amendment of the United States Constitution. Johnson forfeited
any argument on those grounds by failing to raise it in his postjudgment motion in the
trial court. (See People v. Baker (2018) 20 Cal.App.5th 711, 720; People v. Miracle
(2018) 6 Cal.5th 318, 356; see also People v. Carrasco (2014) 59 Cal.4th 924, 981
[forfeiture with respect to a new trial motion].) Moreover, even assuming that Johnson’s
excessive fines argument is preserved for this appeal, like his claim under Dueñas, the
excessive fines argument fails to demonstrate that the restitution fine is an unauthorized
sentence, i.e., “a sentence that ‘could not lawfully be imposed under any circumstance in
the particular case.’ ” (In re G.C. (2020) 8 Cal.5th 1119, 1130 (G.C.).)
4
For these reasons, we conclude the trial court’s postjudgment order denying
Johnson’s motion to vacate fines and fees—which Johnson filed many years after the
restitution fine and court operations assessment were imposed, he began serving his
sentence, and the judgment became final—is not appealable. Accordingly, Johnson’s
appeal must be dismissed. (See Torres, supra, 44 Cal.App.5th at p. 1088; Jinkins, supra,
58 Cal.App.5th at pp. 712–713; see also People v. Mendez (2012) 209 Cal.App.4th
32, 34, fn. 1.)
III. DISPOSITION
The appeal is dismissed.
5
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Grover, J.
H047505
People v. Johnson