Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS020938
Premo, Acting P.J.
I. Introduction
Defendant Jose Luis Guerrero appeals from a 2009 order denying his motion to reduce the restitution fines imposed when he was sentenced to prison in 2002. Because the order is not appealable we dismiss the appeal. (People v. Turrin (2009) 176 Cal.App.4th 1200 (Turrin).)
II. Facts
On May 16, 2002, defendant pleaded guilty to the crime of carjacking (Pen. Code, § 215, subd. (a)) and admitted he had personally used a firearm in connection therewith (former Pen. Code, § 12022.5, subd. (a)(2)). Defendant entered his plea in exchange for the promise that he would be sentenced to no more than 10 years and no less than seven years in prison. On June 13, 2002, the trial court sentenced defendant to prison for 10 years and imposed a restitution fine of $2,000 pursuant to Penal Code section 1202.4. The record does not show that defendant appealed from the judgment.
Penal Code section 1202.4, subdivision (b) provides today (as it did in 2002) that in every case where a person is convicted of a crime, the court shall impose a restitution fine. The fine is to be set at the discretion of the court. In felony cases, the fine must not be less than $200 or more than $10,000. (Id. subd. (b)(1).) The court may not use the defendant’s inability to pay as reason not to impose the fine but may take ability to pay into consideration in increasing the amount of the restitution fine in excess of the statutory minimum. (Id. subd. (c).)
On August 3, 2009, defendant, in propria persona, filed a motion to modify the judgment. According to the facts stated in defendant’s moving papers, defendant’s attorney had advised him that he would have to pay a $200 fine so that, at sentencing, when the judge set the amount at $2,000, defendant remarked to his attorney, “I thought I’d only pay the $200?” Counsel reportedly told defendant he would “take care of it, ” but never did. Defendant claimed that he did not have the ability to pay the $2,000 fine. Defendant asked the court to modify the restitution order, arguing that he had not waived the issue; the order was an “unauthorized fine and sentence” and is reviewable even absent an objection at the sentencing hearing. Defendant argued that in setting the amount of the fine above the statutory minimum, the sentencing court was bound to consider defendant’s ability to pay. Since the sentencing court did not expressly consider ability to pay, and since defendant does not have the ability to pay, defendant maintained that the court must now reduce the fine to the statutory minimum of $200.
The trial court denied the motion. Defendant’s notice of appeal cites two grounds for review: the sentencing court’s 2002 error in failing to assess his ability to pay, and a new issue, the sentencing court’s selection of a five year term for the personal use of a firearm enhancement. In his brief on appeal, defendant raises yet a third reason for modifying his sentence. Here he argues that the $2,000 restitution fine was a violation of his plea bargain. He was not orally informed that a restitution fine was a mandatory consequence of his plea. And, although he did sign a waiver of rights form stating that he would “be ordered to pay a restitution fine of not less than $200 nor more than $10,000, ” the form indicated that the fine would be imposed only if defendant were granted probation. Defendant maintains that, under People v. Walker (1991) 54 Cal.3d 1013, he is entitled to raise the issue of this violation “at any time” and that this court should reduce the fine to the statutory minimum.
III. Discussion
As the Attorney General argues, Turrin, supra, 176 Cal.App.4th 1200 is dispositive. In Turrin, the defendant filed a motion to reduce a restitution fine on the ground that he was unable to pay it. The appellate court held that where the defendant’s motion was filed 10 months after he began serving his sentence, the trial court had lost jurisdiction and none of the exceptions to the loss of jurisdiction applied. (Id. at p. 1206.) Turrin explained that, in criminal cases, only postjudgment orders “ ‘affecting the substantial rights of the party’ ” are appealable. Since the trial court did not have jurisdiction to hear the defendant’s motion, its order denying it did not affect his substantial rights and, therefore, was not appealable. (Id. at p. 1208, citing Pen. Code, § 1237, subd. (b).) Indeed, it has been the law since long before Turrin that an order denying a motion to modify the judgment in a criminal case is not an appealable order. (People v. Cantrell (1961) 197 Cal.App.2d 40, 43; People v. Brattingham (1928) 91 Cal.App. 527, 527-528.)
Defendant does not dispute the correctness of the holding in Turrin. He argues, however, the violation of his plea bargain is a nonwaivable defect that he may challenge “at any time.” Defendant relies upon In re Sheena K. (2007) 40 Cal.4th 875, 886, which held that a minor may challenge a probation condition as unconstitutional, notwithstanding her failure to raise the issue in when the condition was imposed. Similarly, in People v. Rowland (1988) 206 Cal.App.3d 119, 127, this court held that the trial court’s failure to impose the mandatory restitution fine was an “ ‘unauthorized sentence’ ” subject to correction at any time. To be sure, People v. Walker, supra, 54 Cal.3d at page 1025, held that a defendant’s constitutional right to the benefit of his bargain is not waived by the failure to object to an unbargained-for restitution fine. These cases, which were decided on direct appeal from the judgment, are beside the point. In the present case, defendant has appealed from an order denying his motion to modify the restitution fine based upon the sentencing court’s alleged failure to consider his ability to pay it. Whether defendant is entitled to relief for any other reason is a separate issue and does not alter the nature of the order from which he has appealed.
IV. Disposition
The within appeal, having been taken from an order that is not appealable, is dismissed.
WE CONCUR: Elia, J.McAdams, J.