Opinion
B302255
04-01-2021
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DWAYNE BROWN, Defendant and Appellant.
Waldemar D. Halka, 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, Senior Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA425401) APPEAL from an order of the Superior Court of Los Angeles County, Laura L. Laesecke, Judge. Dismissed. Waldemar D. Halka, 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, Senior Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant Steven Brown appeals from the trial court's order denying his petition for relief from a restitution fine and victim restitution order that were parts of his sentence. The Attorney General argues we should dismiss defendant's appeal as having been taken from a nonappealable order. We dismiss defendant's appeal.
II. BACKGROUND
On January 27, 2016, a jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a) ) and found true the allegation that he personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). The trial court found true the allegation that defendant had two prior serious felony convictions (§§ 667, subds. (a) & (d); 1170.12, subd. (b)) and sentenced him to state prison for 86 years to life. (People v. Brown (Sep. 19, 2017, B270677) [nonpub. opn.].) Over defendant's objection, the court also imposed a $6,000 restitution fine (§ 1202.4, subd. (b)) and ordered defendant to pay $30,065.63 in victim restitution (§ 1202.4, subd. (f)) to the Compensation and Government Claims Board.
All statutory references are to the Penal Code.
On September 19, 2017, in case number B270677, a prior panel of this Division affirmed defendant's conviction. On December 20, 2017, in case number S244945, the California Supreme Court denied defendant's petition for review. The remittitur issued to the Superior Court on December 22, 2017.
On September 23, 2019, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant filed a petition seeking relief from the restitution fine and victim restitution order imposed as part of his sentence. On October 3, 2019, the trial court denied defendant's petition. The court ruled that the restitution fine was appropriate and defendant's life term provided him with the ability to pay it. It further ruled that the victim restitution order was not "subject to an ability to pay hearing."
III. DISCUSSION
Defendant make two arguments on appeal. First, he contends the trial court erred in denying his petition for relief from the victim restitution order without holding a Dueñas hearing to determine his ability to pay. Second, he argues the restitution fine and victim restitution order constitute excessive fines under the state and federal constitutions because, due to his physical disabilities and lack of prison work opportunities, he does not have the ability to pay them.
Citing section 1237.2 and People v. Torres (2020) 44 Cal.App.5th 1081 (Torres), the Attorney General argues that we should dismiss defendant's appeal because the trial court was without jurisdiction to grant the relief defendant sought and defendant's appeal thus is from a nonappealable order. We agree with the holding in Torres and the Attorney General.
Section 1237.2 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."
"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. [Citations.] 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. [Citations.]" (Torres, supra, 44 Cal.App.5th at p. 1084.)
The court discussed exceptions to the general rule that were not applicable to the case before it. (Torres, supra, 44 Cal.App.5th at p. 1085.) We reject defendant's argument that the exception for unauthorized sentences applies here. (Ibid.)
In Torres, supra, 44 Cal.App.5th 1081, the Court of Appeal considered a trial court's jurisdiction under section 1237.2 to hear a Dueñas motion after the defendant's direct appeal has concluded. (Torres, supra, 44 Cal.App.5th at p. 1083.) The court held, "[T]he jurisdiction created by [section 1237.2] does not extend beyond the pendency of a defendant's direct appeal from his or her judgment of conviction. Because Torres's motion to correct his sentence was made after his direct appeal had concluded, section 1237.2 did not give the trial court jurisdiction to grant the motion. Because no other jurisdictional basis applies, the order denying the motion was nonappealable, and the appeal must be dismissed." (Torres, supra, 44 Cal.App.5th at p. 1088.)
Here, defendant's direct appeal concluded in December 2017. He filed his petition for relief from the restitution fine and victim restitution order in September 2019. Because defendant filed his petition after his direct appeal had concluded, the trial court no longer had jurisdiction under section 1237.2 to grant the petition. Accordingly, defendant's appeal is from a nonappealable order and must be dismissed. (Torres, supra, 44 Cal.App.5th at pp. 1084, 1088.)
Because we hold that the court was without jurisdiction to grant the petition, we need not determine whether victim restitution falls within the ambit of section 1237.2 or properly is the subject of a Dueñas motion. (See People v. Evans (2019) 39 Cal.App.5th 771, 777 ["Based on the significant differences in purpose and effect between victim restitution and the moneys at issue in Dueñas[, supra, 30 Cal.App.5th 1157], we decline to extend the rule of Dueñas to victim restitution. . . . We conclude . . . that a defendant's ability to pay victim restitution is not a proper factor to consider in setting a restitution award under section 1202.4, subdivision (f)"].) --------
Defendant contends the Attorney General's reliance on Torres, supra, 44 Cal.App.5th 1081 is misplaced. As we stated above, we agree with the holding in Torres. Defendant appears also to argue that the trial court had jurisdiction to hear his petition because his claims are grounded in his state and federal constitutional rights to due process, equal protection, and to be free from excessive fines. Defendant does not explain how a claimed violation of these constitutional rights conferred jurisdiction on the trial court to consider his petition after his conviction became final. (See Torres, supra, 44 Cal.App.5th at p. 1088 [after rejecting jurisdiction under section 1273.2, the court concluded there was no other applicable jurisdictional basis].) We therefore reject his argument.
IV. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
RUBIN, P. J.
BAKER, J.