Opinion
C084123
08-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ANDERSON LAVARN SWIFT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P15CRF0011)
Appointed counsel for defendant Anderson Lavarn Swift asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) However, because defendant has not appealed from an appealable order, we will dismiss the appeal.
On August 7, 2015, in exchange for a stipulated term and the prosecution's agreement not to seek the death penalty, defendant pleaded guilty to and admitted to numerous counts and enhancements, including murder with special circumstances. The trial court imposed an aggregate term that included life without the possibility of parole.
The court also ordered $21,198.14 in restitution, consisting of $4,196 to the victim's compensation program, and $8,150.64, $5,851.50, and $3,000 to individual victims. Defendant did not appeal from that sentence.
On January 9, 2017, defendant moved to strike the restitution order. The motion did not attach a memorandum of points and authorities or a declaration.
On January 10, 2017, the trial court denied the motion. The court explained the California Constitution guarantees victims the right to restitution and that cannot be stricken and, to the extent the motion was directed at the fines, the court had imposed the minimum fines.
Defendant filed a notice of appeal, appealing from the January 10, 2017 ruling.
DISCUSSION
Counsel filed an opening brief setting forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.)
Defendant, however, has appealed from a nonappealable order as the trial court lacked jurisdiction to resentence defendant more than a year after defendant's sentencing. (See People v. Howard (1997) 16 Cal.4th 1081, 1089 ["generally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun"]; People v. Mendez (2012) 209 Cal.App.4th 32, 34 [trial court's denial of the defendant's motion to modify restitution fine not appealable where motion was filed more than three years after the defendant was sentenced]; People v. Turrin (2009) 176 Cal.App.4th 1200, 1203 [appeal, filed 10 months after judgment, dismissed where trial court lacked jurisdiction to entertain motion to modify restitution fines].) We must therefore dismiss the appeal. (See Turrin, supra, 176 Cal.App.4th at p. 1208; accord, Mendez, supra, 209 Cal.App.4th at p. 34.)
DISPOSITION
The appeal is dismissed.
BUTZ, J. We concur: RAYE, P. J. BLEASE, J.