Opinion
B300779
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. SERGIO NUNEZ, Defendant and Appellant.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA302063) APPEAL from a judgment of the Superior Court of Los Angeles County, Sergio Tapia, Judge. Dismissed. Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
____________________
In 2006, Sergio Nunez pleaded no contest to second degree robbery. He now appeals the trial court's denial of his 2018 motion to vacate or modify an order of $3,877.88 in victim restitution. Appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Nunez filed a supplemental brief essentially contending the amount of restitution was disproportionate to his offense. Because the order was not appealable, we dismiss the appeal.
All citations are to the Penal Code.
I
The appellate record includes few details of the underlying crime, but we gleaned from the sentencing and restitution hearings Nunez stole money from a gas station and broke a woman's arm. On September 21, 2006, he pleaded no contest to second degree robbery (§ 211). He admitted a great bodily injury allegation (§ 12022.7, subd. (a)), a prior strike conviction (§ 1170.12, subds. (a)-(d) & § 667, subds. (b)-(i)), and a prior serious felony conviction (§ 667.5, subd. (b)).
The trial court sentenced Nunez to eight years in state prison.
Nunez waived his right to attend the victim restitution hearing. On December 22, 2006, his trial counsel stipulated to $3,877.88 in victim restitution.
In 2018, more than a decade later, Nunez moved to vacate or modify the restitution order. In 2019, the trial court said it lacked jurisdiction to rule on the motion and denied the motion. Nunez appealed.
II
We appointed counsel to represent Nunez and his counsel filed a Wende brief.
Nunez filed a supplemental brief asking us to vacate the victim restitution. He says $3,877.88 was disproportionate to the gravity of his offense and his trial counsel was ineffective for agreeing to it. He does not explain why that amount was disproportionate. He makes additional claims related to his trial counsel and the restitution order.
The appeal must be dismissed because the 2019 order was beyond the trial court's jurisdiction and was therefore not appealable. A trial court generally loses jurisdiction to resentence a defendant after execution of the sentence has begun. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204 (Turrin).) The execution of Nunez's sentence had begun over a decade before he brought the 2018 motion.
There are exceptions to the jurisdictional rule (Turrin, supra, 176 Cal.App.4th at pp. 1204-1205) but none apply here. The court retains jurisdiction to order or modify restitution if the court cannot determine a victim's economic losses at sentencing. (§ 1202.46.) Here, the court determined losses and ordered restitution in 2006. Anyways, section 1202.46 does not authorize a defendant to move the court to change a restitution order. Another exception to the rule is the trial court may correct a clerical error or an unauthorized sentence. (Turrin, supra, 176 Cal.App.4th at p. 1205.) Nothing in the record demonstrates a clerical error or shows the restitution was legally unauthorized. None of the exceptions apply to confer jurisdiction over Nunez's motion.
Section 1237, subdivision (b) allows appeals "[f]rom any order made after judgment, affecting the substantial rights of the party." Because the trial court was without jurisdiction to grant Nunez's motion to vacate the restitution order, the order denying his motion did not affect his substantial rights. (People v. Littlefield (2018) 24 Cal.App.5th 1086, 1092.)
DISPOSITION
The appeal is dismissed.
WILEY, J. We concur:
BIGELOW, P. J.
STRATTON, J.