Opinion
F073296
05-19-2017
THE PEOPLE, Plaintiff and Respondent, v. JAIME MIGUEL CORDERO, JR., Defendant and Appellant.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1450736)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Kane, J. and Meehan, J.
-ooOoo-
Appellant Jaime Miguel Cordero, Jr., appeals the trial court's denial of his ex parte motion to modify his restitution fine, which he filed over one year after he was sentenced in this matter. On June 13, 2016, Cordero's appointed appellate counsel filed a brief in this matter indicating that she found no issues for appeal and asking this court to independently review the record in this matter pursuant to People v. Wende (1979) 25 Cal.3d 436. Having done so, we conclude that Cordero's appeal is not cognizable because the order denying his motion was not an appealable order and we will dismiss the appeal.
FACTUAL AND PROCEDURAL HISTORY
On February 6, 2014, the Stanislaus County District Attorney filed an information charging Cordero with attempted murder (count I/Pen. Code, §§ 664, 187, subd. (a)) and intimidating a witness (count II/§ 136.1, subd. (c)(1)). The information also charged Cordero in count I with a personal use of a firearm enhancement pursuant to section 12022.53, subdivision (d) and a great bodily injury enhancement (§ 12022.7, subd. (a)) and in count II with a personal use of a firearm enhancement.
All statutory references are to the Penal Code. --------
On November 18, 2014, Cordero pled no contest to assault with a firearm (§ 245, subd. (a)(2)) and a personal use of a firearm enhancement (§ 12022.5, subd. (a)) in count I in exchange for the dismissal of the remaining count and enhancement and a stipulated six-year term. After Cordero waived time for sentencing, the court sentenced him to an aggregate six-year term consisting of the middle term of three years on Cordero's assault conviction and the mitigated term of three years on the arming enhancement in that count. The court also ordered Cordero to pay a restitution fine of $1,800.
On January 26, 2016, Cordero filed an ex parte motion to have his restitution fine waived or modified.
On January 28, 2016, the trial court denied the motion.
On February 9, 2016, Cordero filed an appeal of the court's order denying his motion.
Although defendants can appeal orders after judgment that affect their substantial rights (§ 1237, subd. (b)), trial courts generally lack jurisdiction to resentence a criminal defendant after sentence is executed. (People v. Howard (1997) 16 Cal.4th 1081, 1089.) Prior to the execution of a sentence, a trial court retains power to modify a sentence. (People v. Karaman (1992) 4 Cal.4th 335, 344-352.) Section 1170, subdivision (d) provides that a trial court can recall a sentence on its own motion within 120 days after committing a defendant to prison. (Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Courts can also correct clerical errors, but not judicial error. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
In People v. Turrin (2009) 176 Cal.App.4th 1200, 1205-1206 (Turrin), a defendant, like Cordero, was sentenced to state prison, the prison sentence began, and the defendant sought a modification or reduction of a restitution fine. The trial court did not recall the sentence on its own motion and lacked the statutory authority to do so because the court did not act within 120 days. (Id. at p. 1206.) The Turrin court found that the defendant could not "contest the amount, specificity or propriety of an authorized order of a restitution fine for the first time on appeal [citations] let alone in a motion to modify the same in the trial court after it has lost jurisdiction." (Id. at p. 1207.) The court found an exception where the order was for direct victim restitution because trial courts retain continuing jurisdiction to modify orders for direct victim restitution. (Id. at pp. 1207-1208.) Turrin held that because a trial court lacks jurisdiction to modify a restitution fine made pursuant to section 1202.4, the defendant's motion requesting a modification of the fine did not affect his substantial rights and is not an appealable postjudgment order. (Id. at pp. 1207-1208.) The Turrin court ordered the appeal dismissed. (Id. at p. 1209.)
Cordero's motion was an attack on the section 1202.4 restitution fine imposed as part of his sentence. Because of the timing of his motion, the trial court did not have jurisdiction to recall Cordero's sentence, nor did it have jurisdiction to hear the motion. Cordero's motion does not affect his substantial rights under section 1237, subdivision (b). Accordingly, we will order the dismissal of this appeal.
DISPOSITION
The appeal is dismissed.