Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB19931. Colin J. Bilash, Judge.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant appeals from the denial of a motion to modify the restitution fine imposed as part of his sentence. Defendant was convicted in 2002 of second degree murder (Pen. Code, § 187, subd. (a)), voluntary manslaughter (§ 192, subd. (a)), and two counts of being a felon in possession of a firearm, in trifurcated trials, he was sentenced to an aggregate term of 77 years to life, and was ordered to pay a mandatory restitution fine of $10,000. (§ 1202.4, subd. (b).) He appealed his original conviction and sentence in 2002 but did not challenge the restitution fine on appeal. (See People v. Rodriguez (May 25, 2004, E032733) [nonpub. opn.].) In 2004, he made a motion to modify the sentence or withdraw his plea, which was denied, and did not appeal that order. In 2008, he made a motion to modify the restitution, which was denied by the trial court on the ground it lacked jurisdiction. We dismiss the appeal.
All further statutory references are to the Penal Code, except where otherwise indicated.
Counsel has attached a copy of the unpublished decision from the prior appeal as an appendix to the brief filed in accordance with the procedures under People v. Wende (1979) 25 Cal.3d 436. We take judicial notice of the decision, as well as of the trial court’s files and dockets (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
BACKGROUND
In 2002, defendant was tried on several criminal charges relating to separate violent incidents occurring in 1996 and 1998. He was ultimately convicted of one count of second degree murder (§ 187, subd. (a)), with an enhancement for discharging a firearm (§ 12022.53, subd. (d)); one count of voluntary manslaughter (§ 192, subd. (a)) with personal use of a firearm (§ 12022.5, subd. (a)), and two counts of unlawful possession of a firearm by a convicted felon. (§ 12021, subd. (a)(1).) He was sentenced to an aggregate determinate term of 22 years in prison, and an aggregate indeterminate term of 55 years to life.
In 2002, defendant appealed his convictions and sentence (People v. Rodriguez (May 25, 2004, E032733) [nonpub. opn.]), and the judgment was affirmed in 2004. Defendant did not challenge the restitution fine in the original appeal. According to the trial court dockets, defendant filed a request to withdraw his plea or for modification of sentence on December 23, 2003, which was denied by an ex parte order on January 13, 2004. No appeal was taken from this order and we cannot tell if that modification motion was made on the same ground as the motion that is the subject of the current appeal. On August 29, 2008, the court received defendant’s motion to modify his sentence, challenging the court’s imposition of a $10,000 restitution fine. The court denied the request that same date, explaining it lacked jurisdiction to hear the request. Defendant appealed.
DISCUSSION
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
First, the restitution fine was a term of the original judgment which should have been challenged in the direct appeal. Failure to raise the issue on direct appeal forfeited the issue. Where a judgment has been appealed, defendant’s failure to timely raise the challenge timely precludes his belated attempt to appeal from an order denying modification. To hold otherwise would condone extending the jurisdictional time limit for filing appeals through the bootstrapping vehicle of a post judgment motion to modify. (See People v. Djekich (1991) 229 Cal.App.3d 1213, 1219.)
Second, the trial court was correct in stating it lacked jurisdiction to consider modification of the judgment. It is well settled that once judgment is rendered, the sentencing court lacks jurisdiction to vacate or modify the sentence except pursuant to section 1170, subdivision (d). (Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1835.) The only other exception relates to situations where the defendant has timely appealed and the reviewing court remands the matter with directions to modify the judgment. After a judgment has been affirmed on appeal, the trial court lacks jurisdiction to act further in a case, except to ensure that the judgment has been enforced. (People v. Maggio (1929) 96 Cal.App. 409, 411; see also People v. Langdon (1967) 250 Cal.App.2d 595.) The trial court lacked jurisdiction to entertain defendant’s postjudgment motion to modify the sentence.
Third, an order made after judgment is not appealable where the motion to modify the judgment merely asks the court to repeat or overrule a former ruling on the same facts. (People v. Vaitonis (1962) 200 Cal.App.2d 156, 159.) Where a judgment is not void on its face and has been regularly entered the court has no authority to modify or set it aside except in the mode provided by law, such as a motion for a new trial or appeal. (People v. Cantrell (1961) 197 Cal.App.2d 40, 43.) A ruling denying a motion to vacate or to modify a judgment is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself. (People v. Thomas (1959) 52 Cal.2d 521, 527; People v. Gallardo (2000) 77 Cal.App.4th 971, 980-981.)
The same principles preclude reviewing courts from reaching issues raised by way of habeas corpus where the defendant has lost the right to raise a challenge by failing to raise it upon a timely appeal from the judgment. (In re Dixon (1953) 41 Cal.2d 756, 759.) In the same way, a defendant cannot use a postjudgment motion to modify as a substitute for an appeal.
Fourth, contrary to defendant’s repeated assertions regarding the exercise of the court’s discretion, imposition of a restitution fine is not discretionary; it is mandatory, and it must be imposed unless the trial court finds compelling and extraordinary reasons for not doing so. (§ 1202.4, subd. (b).) A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. (§ 1202.4, subd. (c).) The court is required to impose not less than $200 and not more than $10,000, as restitution fine pursuant to section 1202.4, subdivision (b), so the imposition of $10,000, is not legally improper. In any event, defendant may not complain for the first time on appeal that restitution fines were imposed without findings or evidence of ability to pay. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072.)
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The appeal is dismissed.
We concur: Ramirez, P. J., Hollenhorst, J.