Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB702668, Donna G. Garza, Judge.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Louis Crosby was found guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189), with an enhancement for personally and intentionally discharging a firearm and causing death (Pen. Code, § 12022.53, subd. (d)). As a result, he was sentenced to two consecutive terms of 25 years to life in prison. As part of his sentence, he was ordered to pay a restitution fine in the amount of $10,000 (Pen. Code, § 1202.4, subd. (b)(1)), plus direct victim restitution, payable to the Victim Compensation Fund, in the amount of $5,779.61 (Pen. Code, § 1202.4, subd. (f)).
Defendant filed a previous appeal from the judgment; in it, he did not challenge these restitution amounts. We affirmed the judgment. (People v. Crosby (Mar. 10, 2010, E047828) [nonpub. opn.].)
While that appeal was pending, defendant (in propria persona) filed a motion to reduce or to eliminate the restitution amounts, on grounds including that there was insufficient evidence of his ability to pay. The trial court denied the motion.
Defendant appeals from that order, arguing that the trial court erred because he lacked the ability to pay. We disagree, for six separate reasons.
First, the trial court lacked jurisdiction to entertain the motion because defendant’s first appeal was still pending. “The filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. [Citations.]” (People v. Perez (1979) 23 Cal.3d 545, 554.) “Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. [Citations.] Thus, action by the trial court while an appeal is pending is null and void. [Citations.]” (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473.) This case is not within any of the exceptions to this rule. (See generally People v. Nelms (2008) 165 Cal.App.4th 1465, 1472.)
Second, defendant could have raised the identical contention in his first appeal. His failure to do so bars him from raising it now. (People v. Senior (1995) 33 Cal.App.4th 531, 535-538.)
Third, the $10,000 restitution fine had become final and was no longer subject to modification in the trial court. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1208.) (We acknowledge, however, that the $5,779.61 in direct victim restitution was still subject to modification under Penal Code section 1202.42; see Turrin, at pp. 1207-1208.)
Fourth, defense counsel forfeited defendant’s contention by failing to object to the restitution amounts at sentencing. (People v. Forshay (1995) 39 Cal.App.4th 686, 689-690 [decided under former Gov. Code, § 13967]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 [same].)
Fifth, on this record, the trial court did not abuse its discretion in setting the restitution amounts, as follows.
With regard to the restitution fine, the court could properly set the fine at $200 times the number of years of imprisonment, regardless of ability to pay. (Pen. Code, § 1202.4, subd. (b)(2).) As defendant’s minimum parole period was 50 years, this alone authorized a $10,000 restitution fine.
Moreover, it was defendant who had the burden of proving inability to pay. (Pen. Code, § 1202.4, subd. (d); People v. Avila (2009) 46 Cal.4th 680, 729.) In People v. DeFrance (2008) 167 Cal.App.4th 486, the trial court imposed a $10,000 restitution fine against a defendant who was sentenced to life without the possibility of parole. (Id. at pp. 489, 504.) The appellate court held that this was not an abuse of discretion: “[D]efendant put forth figures to show, at current prison wages, it would be very difficult for him to pay the fine; it would take a very long time and the fine might never be paid. Defendant did not, however, show an absolute inability to ever pay the fine.” (Id. at p. 505.) The same is true here.
With regard to the amount of direct victim restitution, the trial court statutorily could not consider defendant’s inability to pay. (Pen. Code, § 1202.4, subd. (g); People v. Draut (1999) 73 Cal.App.4th 577, 582.)
Sixth and finally, it does not appear that defendant served his motion on the People. (Pen. Code, § 1201.5 [“[a]ny motions made subsequent to judgment must be made only upon written notice served upon the prosecution at least three days prior to the date of hearing thereon”].) This requires us to dismiss the appeal. (Ibid.)
Accordingly, the appeal is hereby dismissed.
We concur: RAMIREZ P.J. McKINSTER J.