People v. Torres

• Decision Date: 06 February 2020
• Docket Number: B296587
• Citation: 258 Cal.Rptr.3d 307,44 Cal.App.5th 1081
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Luis TORRES, Defendant and Appellant.

44 Cal.App.5th 1081

258 Cal.Rptr.3d 307

The PEOPLE, Plaintiff and Respondent,

v.Luis TORRES, Defendant and Appellant.

B296587

Court of Appeal, Second District, Division 1, California.

Filed February 6, 2020

A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, William H. Shin and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, P. J.

After his direct appeal had concluded, Luis Torres filed a motion in the trial court to modify his sentence by reducing his restitution fine based on his inability to pay it. The trial court denied the motion, and Torres appealed. The Attorney General argues that the order is nonappealable because the trial court did not have jurisdiction to grant the motion. Torres replies that the court had jurisdiction under Penal Code section 1237.2,¹ which provides that "[t]he trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for correction." We hold that this provision, which was enacted to allow trial courts to correct errors in fines and assessments notwithstanding a pending direct appeal, does not apply after the defendant’s direct appeal has concluded. Because Torres’s motion to modify his sentence was filed after the conclusion of his direct appeal and there was no other basis for trial court jurisdiction over Torres’s motion, the order denying his motion is nonappealable. We therefore dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2014, a jury convicted Torres of first degree murder and found true certain gang and firearm enhancements. The court sentenced him to 75 years to life in prison and ordered him to pay $70 in court assessments and a $10,000 restitution fine. This court affirmed the judgment as to Torres in an unpublished opinion. ( People v. Jones 2016 WL 6330572 (Cal.App. 2 Dist. Oct. 28, 2016, B254370).) Torres did not challenge, and we did not address, the assessments or restitution fine. Our remittitur issued in January 2017.

In November 2018, Torres filed a motion in the superior court for modification of the restitution fine on the ground that the court imposed the fine without determining whether he had the ability to pay it. He sought a reduction of the fine to $200.

The court denied the motion without stating its reasons. Torres filed a notice of appeal. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ), he contends that the imposition of a $10,000 restitution fine in this case was "based upon the erroneous assumption that he could pay his fine out of his future wages while incarcerated."

The Attorney General argues that this appeal must be dismissed because the trial court did not have jurisdiction to grant Torres’s motion and, therefore, the order denying the motion is nonappealable. Torres contends that the order is appealable because the trial court had jurisdiction over his motion pursuant to section 1237.2. We disagree with Torres and dismiss the appeal.

DISCUSSION

Generally, once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence. ( People v. Karaman (1992) 4 Cal.4th 335, 344, 14 Cal.Rptr.2d 801, 842 P.2d 100 ; People v. Hernandez (2019) 34 Cal.App.5th 323, 326, 246 Cal.Rptr.3d 87.) If the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be dismissed. ( People v. Turrin (2009) 176 Cal.App.4th 1200, 1208, 98 Cal.Rptr.3d 471 ( Turrin ); People v. Chlad (1992) 6 Cal.App.4th 1719, 1725–1726, 8 Cal.Rptr.2d 610 ; People v. Fuimaono (2019) 32 Cal.App.5th 132, 135, 243 Cal.Rptr.3d 545.) Here, the execution of Torres’s sentence began before he filed the motion that is the subject of this appeal. Unless an exception to the general rule applies, the trial court did not have jurisdiction to rule on his motion and the appeal must be dismissed.

There are exceptions to the general rule. A court may recall a sentence and resentence a defendant under certain circumstances within 120 days of the defendant’s custody commitment. (§ 1170, subd. (d)(1).) Resentencing is also authorized under the circumstances specified in sections 1170.126, 1170.18, and 1170.95. Courts may correct computational and clerical errors at any time. ( Turrin , supra , 176 Cal.App.4th at p. 1205, 98 Cal.Rptr.3d 471.) Unauthorized 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. ( Ibid. ; see People v. Picklesimer (2010) 48 Cal.4th 330, 338, 106 Cal.Rptr.3d 239, 226 P.3d 348.) Torres’s claim under Dueñas , which is based upon factual arguments concerning his ability to pay, does not fall within any of these exceptions. (See Turrin , supra , 176 Cal.App.4th at pp. 1205–1206, 98 Cal.Rptr.3d 471.) Torres does not contend otherwise.

Torres argues that the trial court had jurisdiction to rule on his motion based on language in section 1237.2. That section, enacted in 2015, 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, penalty assessments, surcharges, fees, or costs 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, penalty assessments, surcharges, fees, or costs upon the defendant’s request for correction. This section only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal." (Stats. 2015, ch. 194, § 3, pp. 2000–2001.)

Torres contends that the second sentence of the statute—"[t]he trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines"—provided the trial court with jurisdiction to rule on his motion. ( § 1237.2.) Torres is challenging the imposition of his restitution fine, and he filed his motion "after a notice of appeal ha[d] been filed." Therefore, he concludes, the court had jurisdiction to correct the alleged error. We disagree.

In interpreting a statute, " ‘ "our fundamental task ... is to determine the Legislature’s intent so as to effectuate the law’s purpose." [Citations.] "We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature’s enactment generally is the most reliable indicator of legislative intent." ’ " ( Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175, 1198, 191 Cal.Rptr.3d 498, 354 P.3d 302.) "If our examination of the statutory language leaves doubt about its meaning, we may consult other evidence of the Legislature’s intent, such as the history and background of the measure." ( People v. Birkett (1999) 21 Cal.4th 226, 231–232, 87 Cal.Rptr.2d 205, 980 P.2d 912.)

Reading the statutory language in its context, section 1237.2 generally precludes an appeal from a judgment of conviction when the appellant’s only issue on appeal is the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs, unless the appellant had first raised the issue in the trial court at the time of sentencing or, if the appellant did not discover the error until after sentencing, the appellant "first makes a motion for correction in the trial court." ( § 1237.2.) Although the filing of a notice of appeal ordinarily divests the trial court of jurisdiction over the case ( People v. Flores (2003) 30 Cal.4th 1059, 1064, 135 Cal.Rptr.2d 63, 69 P.3d 979 ; Anderson v. Superior Court (1967) 66 Cal.2d 863, 865, 59 Cal.Rptr. 426, 428 P.2d 290 ) and would thus preclude a motion for correction in the trial court, the statute’s second sentence removes this impediment by providing that "[t]he trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant’s request for correction." ( § 1237.2.) Thus, a defendant who discovers an applicable error after he or she files a notice of appeal from the judgment of conviction must (if no other error is asserted on appeal) file a motion to correct the error in the trial court; and, under these circumstances, the trial court shall have the power to rule on such a motion.

A primary impetus for section 1237.2 was judicial economy. As the Judicial Council—the law’s sponsor—advised the Legislature, the law will reduce " ‘the burdens associated with formal appeals and resentencing proceedings stemming from a common sentencing error. By requiring that this sentencing error first be raised in the trial court, which has ready access to the court records and other information necessary to review and resolve such issues, this proposal would promote judicial economies and efficiencies by avoiding the costs and burdens associated with a formal appeal.’ " (Assem. Com. on Public Safety, Analysis of Assem. Bill. No. 249 (2015–2016 Reg. Sess.) Mar. 17, 2015, p. 5; Sen. Com. on Public Safety, Analysis of Assem. Bill. No. 249 (2015–2016 Reg. Sess.) June 9, 2015, p. 3; see People v. Jordan (...