Opinion
A163220
05-16-2022
THE PEOPLE, Plaintiff and Respondent, v. LA CHOY DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 147280
We resolve this case by memorandum opinion pursuant to California Standard of Judicial Administration, section 8.1.
BANKE, J.
Sixteen years after defendant La Choy Davis was convicted and sentenced to an aggregate prison term pursuant to a plea agreement, he brought a "petition" in propria persona seeking to" 'modify'" the $5,000 restitution fine (Pen. Code, § 1202.4, subd. (b)) and the $2,603.29 in victim restitution (§ 1202.4, subd. (f)) that were ordered at the time of sentencing, on the ground the trial court failed to make an ability to pay determination. He claimed that, in the absence of any such determination, his due process rights were violated, the restitution fine and victim restitution were unconstitutionally excessive, and he received ineffective assistance of counsel. 1
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court denied the "petition" on the ground it lacked jurisdiction to consider the merits, and even if it did, defendant's claims failed on the merits.
The Attorney General maintains we must dismiss the appeal for lack of appellate jurisdiction. We agree.
Although the Attorney General devoted most of his brief to urging the appeal must be dismissed for lack of appellate jurisdiction, defendant filed no reply brief.
Restitution Fine
In People v. Turrin (2009) 176 Cal.App.4th 1200 (Turrin), the Court of Appeal considered whether the trial court had jurisdiction to entertain a motion to modify restitution fines (imposed in three cases) made after the time to appeal from the judgments had passed and after the defendant had commenced serving his aggregate prison term. (Id. at p. 1203.) The trial court denied the motion without prejudice, and the defendant appealed. The Court of Appeal dismissed the appeal. (Id. at p. 1208.)
The court pointed out that generally a trial court lacks jurisdiction to resentence a criminal defendant after execution of the sentence has begun. (Turrin, supra, 176 Cal.App.4th at p. 1204.) There are few exceptions, and none applied. (Id. at pp. 1204-1206.) The trial court had not been asked to correct a "clerical" error. (Id. at p. 1205.) Nor could it be said that the sentence was "unauthorized" and therefore correctable at any time. (Ibid.) As the appellate court explained," '[t]he unauthorized sentence exception is "a narrow exception" to the waiver doctrine that normally applies where the sentence "could not lawfully be imposed under any circumstance in the particular case," for example, "where the court violates mandatory provisions governing the length of confinement." [Citations.] The class of nonwaivable 2 claims includes "obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings." '" (Ibid., quoting People v. Brach (2002) 95 Cal.App.4th 571, 578.) Whether the restitution fine could be lawfully imposed, of course, involved factual issues and did not present a "pure question of law." (Turrin, at p. 1207.) Accordingly, there was no basis upon which the trial court could have acted.
The order denying relief therefore "did not affect [the defendant's] substantial rights and [was] not an appealable order." (Turrin, supra, 176 Cal.App.4th at p. 1208.) As a consequence, defendant could not appeal, and the Court of Appeal lacked appellate jurisdiction, requiring dismissal of the appeal. (Turrin, at p. 1208; accord, People v. Jinkins (2020) 58 Cal.App.5th 707, 712-713 [no appellate jurisdiction over defendant's purported appeal from a motion, made after he commenced serving prison sentence, to reduce restitution fine on the ground no ability to pay hearing was held; appeal dismissed]). The same result as to defendant's purported appeal as to the restitution fine is dictated here.
Section 1237, subdivision (b), provides that a defendant may appeal "[f]rom any order made after judgment, affecting the substantial rights of the party."
Victim Restitution
Turrin distinguished victim restitution on the ground section 1202.42 confers continuing jurisdiction on the trial court to modify such restitution and therefore concluded the defendant, who was challenging only restitution fines, could not look to those provisions to imbue the trial court with authority to act on his motion. (Turrin, supra, 176 Cal.App.4th at pp. 1207- 1208.) 3
However, in People v. Littlefield (2018) 24 Cal.App.5th 1086 (Littlefield), the Court of Appeal dismissed an appeal from an order denying a motion to vacate a victim restitution order on the basis of reasoning similar to that in Turrin. In Littlefield, the defendant, after serving a prison sentence, moved to vacate a victim restitution order on the ground the victim had unduly delayed in seeking to recoup the restitution and was therefore barred from doing so by the doctrine of laches. (Id. at p. 1087.) The court first reiterated the general rule that a trial court lacks jurisdiction to resentence a defendant after execution of sentence has begun. (Id. at p. 1089.) It next concluded that none of the handful of exceptions to this rule, including correcting an "unauthorized sentence," applied. (Id. at p. 1090.) The court then turned to the pertinent victim restitution statutes, pointing out the "retained jurisdiction" provisions of sections 1202.4, subdivision (f) and 1202.46 did not apply because the trial court had long before determined all losses. (Littlefield, at p. 1090.) In addition, section 1202.46 authorizes "only a victim, the district attorney, or the court" to correct a sentence that erroneously omits victim restitution. (Littlefield, at p. 1090.) The appellate court thus concluded the "continuing jurisdiction" provisions of the victim restitution statutes do not "allow a criminal defendant to avoid his victim restitution obligation after he has served his sentence on the theory that the unsatisfied victim restitution obligation has become stale for lack of enforcement." (Id. at p. 1091.)
In the instant case, defendant made a different complaint-that victim restitution was imposed without an ability to pay hearing. However, as was the case in Littlefield, no victim restitution statute invests the trial court with continuing jurisdiction to revisit a victim restitution order on such a ground. To the contrary, the victim restitution statutes expressly state that 4 victim restitution is to be ordered without consideration of the defendant's ability to pay. (§ 1202.4, subd. (g) ["A defendant's inability to pay shall not be a consideration in determining the amount of a restitution order."].) And in People v. Evans (2019) 39 Cal.App.5th 771, 777, the Court of Appeal expressly rejected the argument that, under the reasoning of People v. Dueñas (2019) 30 Cal.App.5th 1157, an ability to pay hearing is constitutionally required before determining victim restitution.
Thus, as in Littlefield, the trial court here had no authority to grant defendant the relief he sought as to victim restitution. Accordingly, the order denying his petition "did not affect [his] substantial rights and was thus nonappealable" and must be dismissed. (Littlefield, supra, 24 Cal.App.5th at p. 1092.)
Given our disposition, we need not, and do not, reach any other arguments made by the parties.
While defendant urges us to construe his "petition" as a petition for writ of habeas corpus, we decline to do so. If defendant wishes to pursue habeas relief, he must do so in accordance with the procedures governing such petitions. We express no view as to the merits of such a petition.
DISPOSITION
The appeal is dismissed. 5
We concur: Humes, P.J. Wiss, J. [*] 6
[*] Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.