Opinion
A158902
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DARYL KEITH BOUIE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR145078)
Defendant Daryl Keith Bouie appeals from an order denying his post-judgment motion to reduce the restitution fine and parole revocation restitution fine imposed in his case. His court-appointed counsel filed a brief raising no issues, and he seeks our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We conclude the order at issue is nonappealable. We therefore dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2000, a jury convicted defendant Daryl Bouie of first-degree robbery (Pen. Code, § 211) and residential burglary (§ 459). Prior conviction allegations were also found true, and in May 2001 the trial court sentenced defendant to 25 years to life with the possibility of parole under the Three Strikes Law. The court also imposed a $10,000 restitution fine (§ 1202.4, subd. (b)) and imposed but suspended a $10,000 parole revocation restitution fine (§ 1202.45).
All further statutory references are to the Penal Code. --------
In October 2019, defendant filed a "motion to correct fines and fees" seeking to have the aforementioned restitution fine and parole revocation restitution fine vacated, or reduced to the minimum amount applicable on the date of sentencing ($200), pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). (Capitalization omitted.) In his motion, defendant stated that he has been indigent since the time of his arrest. He further argued the trial court had the power to entertain the motion pursuant to section 1237.2 and pursuant to its power to correct sentencing errors at any time. Accompanying the motion were two documents: (1) a minute order showing the court appointed him counsel in his underlying case, to support his claim of indigency, and (2) a copy of his abstract of judgment.
The trial court denied the motion without stating any reasons, and defendant appealed. Defendant's appointed counsel filed a brief pursuant to Wende raising no issues, and asking us to independently review the record. The brief included counsel's declaration stating that he informed defendant he would file a Wende brief, and advising him of his right to file a supplemental brief.
Thereafter, defendant submitted a supplemental brief in which he cites to Dueñas and contends the trial court erred in denying his motion because he is indigent and the sentencing court imposed the fines at issue without finding that he had the ability to pay them. Defendant asks us to direct the trial court to stay the restitution fine until the prosecution proves defendant has the ability to pay it. Moreover, defendant contends he did not forfeit this issue because Dueñas was unforeseeable. Finally, he contends the court's order denying his motion is appealable under section 1237, subdivision (b), as a post-judgment order affecting his substantial rights, and also under section 1237.2.
DISCUSSION
As a threshold matter, we address the issue of appellate jurisdiction. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) As a general rule, a trial court has no jurisdiction to resentence a defendant after execution of the sentence has begun. (People v. Karaman (1992) 4 Cal.4th 335, 344.) There are several exceptions to this general rule, including that a trial court can recall and resentence a defendant within 120 days of the defendant's commitment into custody. (§ 1170, subd. (d)(1).) Furthermore, "[u]nauthorized 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." (People v. Torres (2020) 44 Cal.App.5th 1081, 1085 (Torres).) If a trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, then an order denying such a motion does not affect the defendant's substantial rights and is not appealable under section 1237, subdivision (b). (People v. Turrin (2009) 176 Cal.App.4th 1200, 1208 (Turrin); see Torres, supra, 44 Cal.App.5th at p. 1084, and cases cited.)
In this case, defendant filed his motion nearly two decades after his sentencing. Consequently, the trial court had no jurisdiction to modify the restitution fines absent application of some exception to the foregoing general rule. Defendant's claim under Dueñas, which is a fact-specific one that is not readily correctable on appeal, does not fall within any such exception. (See, e.g., Torres, supra, 44 Cal.App.5th at p. 1085.) Because the trial court lacked jurisdiction to rule on the motion, its order denying that motion is not appealable under section 1237, subdivision (b), as a post-judgment order affecting defendant's substantial rights. (Turrin, supra, 176 Cal.App.4th at p. 1208; Torres, supra, 44 Cal.App.5th at p. 1084, and cases cited.)
Defendant argues the trial court had jurisdiction to rule on his motion pursuant to section 1237.2, which provides: "An appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines . . . unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines . . . upon the defendant's request for correction. This section only applies in cases where the erroneous imposition or calculation of fines . . . are the sole issue on appeal." Recent case law, however, has interpreted this statute as creating jurisdiction only during "the pendency of a defendant's direct appeal from his or her judgment of conviction." (Torres, supra, 44 Cal.App.5th at p. 1087.) We agree with this interpretation and, because this appeal is not from defendant's judgment of conviction, we reject defendant's reliance on section 1237.2.
Anticipating that we might conclude the order appealed from is nonappealable, appointed counsel's Wende brief asks that we exercise our discretion to treat the instant petition as a petition for extraordinary relief. Counsel, however, provides no reason and cites no authority indicating we should exercise discretion in the manner requested. Accordingly, we decline to do so.
DISPOSITION
The appeal is dismissed.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.