Opinion
2d Crim. B323460
03-20-2023
THE PEOPLE, Plaintiff and Respondent, v. VICTOR CHAVIRA, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Patricia Murphy, Judge Superior Court County of Ventura Super. Ct. No. 2008032478) (Ventura County)
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
YEGAN, J.
Victor Chavira appeals from the trial court's order denying his motion to vacate or stay court fees and a restitution fine imposed pursuant to Penal Code, section 1202.4. We appointed counsel to represent appellant on appeal. After an examination of the record, counsel filed an opening brief raising no issues and requesting that we follow the procedures set forth in People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Appellant filed a supplemental brief, in propria persona. We dismiss appellant's appeal for lack of jurisdiction.
All further statutory references are to the Penal Code.
Facts and Procedural Background
The following facts are drawn from this court's unpublished decision in appellant's direct appeal from his conviction. (People v. Chavira (Dec. 23, 2014, B247595) [nonpub. opn.].)
In 2012, appellant was convicted by jury of first degree murder with two special circumstances findings that he committed the murder in the commission of a robbery and while lying in wait (count 1; §§ 187, subd. (a); 190.2, subd. (a)(17)(A); 190.2, subd. (a)(15)). The jury also convicted appellant of second degree robbery (count 2; § 211), two counts of exhibiting a firearm in the presence of another person (counts 3-4; § 417, subd. (b)), and dissuading a witness by force or threat (count 5; § 136.1, subd. (c)(1)). On counts 1, 3, and 5, the jury found that appellant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)).
In 2013, the trial court sentenced appellant to a determinate term of eight years eight months state prison plus 100 years to life, plus two indeterminate terms of life without the possibility of parole. As part of this sentence, the trial court imposed a restitution fine of $10,000 and ordered victim restitution of almost $8,000.
On appeal from the judgment of conviction, we modified appellant's sentence but affirmed the judgment in all other respects.
In August 2022, appellant filed, in propria persona, a motion to vacate or stay his court fees and the restitution fine on the basis that imposition of the sentence violated due process because the trial court had not made an ability to pay finding (citing People v. Duenas (2019) 30 Cal.App.5th 1157). The trial court summarily denied the motion.
Discussion
Because the instant appeal is not from appellant's conviction, he is not entitled to our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738. (People v. Delgadillo (2022) 14 Cal.5th 216, 221222, 224, 230; see People v. Kelly (2006) 40 Cal.4th 106, 119 [independent judicial review mandated by Anders applies only to first appeal as of right]; Serrano, supra, 211 Cal.App.4th at p. 503.) However, he is entitled to appellate consideration of any contentions raised in his supplemental brief. (See Serrano, at p. 503.)
In his supplemental brief, appellant cites People v. Turrin (2009) 176 Cal.App.4th 1200, 1205-1206 (Turrin) and contends "section 1202.42 . . . confers continuing jurisdiction to modify an order of victim restitution." (Capitalization omitted.)
But no victim restitution statute invests the trial court with continuing jurisdiction to revisit a victim restitution order on the ground that it was imposed without an ability to pay hearing. To the contrary, victim restitution is to be ordered without consideration of the defendant's ability to pay. (§ 1202.4, subd. (g); see People v. Evans (2019) 39 Cal.App.5th 771, 777 [declining to extend the rule of Duenas to victim restitution].)
Furthermore, this court has no jurisdiction to entertain an appeal from the summary denial of appellant's postjudgment nonstatutory motion to modify his sentence because the trial court had no jurisdiction to entertain the motion nearly 10 years after entry of judgment in this case. (See People v. King (2022) 77 Cal.App.5th 629, 633-634, 641-642 [unauthorized sentence doctrine does not itself create jurisdiction for trial court to rule on incarcerated defendant's motion to correct alleged illegal sentence after conviction is final and execution of sentence has begun]; People v. Torres (2020) 44 Cal.App.5th 1081, 1084-1085 [because a trial court lacks jurisdiction to vacate or modify sentence after judgment once execution of the sentence has begun, an order denying such a motion by a trial court without jurisdiction is nonappealable]; Turrin, supra, 176 Cal.App.4th at p. 1207 ["A defendant may not contest the amount, specificity, or propriety of an authorized order of a restitution fine for the first time on appeal [citations] let alone in a motion to modify the same in the trial court after it has lost jurisdiction"].) Accordingly, we must dismiss the appeal.
Disposition
The appeal is dismissed.
We concur: GILBERT, P. J., BALTODANO, J.