PEOPLE v. ELLIOTT

No. A150236.

THE PEOPLE, Plaintiff and Respondent, v. TRAVIS NEAL ELLIOTT, Defendant and Appellant.

Court of Appeals of California, First District, Division Four.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

RIVERA, J.

Defendant Travis Neal Elliott appeals an order denying his request for his restitution fine to be waived or modified. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) On May 23, 2017, defendant filed an "Objection to Attorney's Wende Brief." On June 5, 2017, he filed a "Mot[ion] for Judicial Notice, of Points and Authorit[ies] in Support of Objection to Wende Brief." We shall construe the May 23, 2017 "Objection" and the June 5, 2017 memorandum of points and authorities together as defendant's supplemental brief.1

Defendant was convicted of first degree murder in 2008 and sentenced to a prison term of 31 years to life, consisting of 25 years to life for murder (Pen. Code, § 187),2 a one-year enhancement for use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)), and a five-year enhancement for a prior conviction (§ 667.5, subd. (a)(1)). The trial court ordered defendant to pay a $5,000 restitution fine (§ 1202.4) and $5,000 to the Victim Compensation Board. On February 15, 2011, we affirmed his conviction. (People v. Elliott (Feb. 15, 2011, A123711) [nonpub. opn.].)

In 2016, defendant filed an "Application Requesting Court Ordered Restitution Fine, to be Waived/Modified." The application was made on the ground that the trial court had failed to consider defendant's ability to pay the restitution fine. The trial court denied the application on June 22, 2016.

It appears that defendant advised the court on September 23, 2016 that he had not yet received a ruling, and on October 19, 2016, he notified the court of his new address for the receipt of legal mail. Because it appeared to the court that defendant had not received the June 22, 2016 order due to the address change, the court directed the clerk to send defendant a copy of the ruling on November 2, 2016. Defendant filed his notice of appeal on December 29, 2016.3

We conclude we must dismiss the appeal without reaching the merits of defendant's arguments. "`[G]enerally, a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun. [Citation.]' [Citations.] There are few exceptions to the rule." (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204 (Turrin).) One of those exceptions exists when the trial court recalls the sentence within 120 days after committing a defendant to prison. (§ 1170, subd. (d).) That period had long since passed at the time of the order defendant challenges. Nor can defendant plausibly claim that the fine was the result of a clerical error or constituted an unauthorized sentence. (Turrin, 176 Cal.App.4th at p. 1205; see § 1202.4, subd. (b)(1) [authorizing restitution fines up to $10,000].) As was the case in Turrin, "Defendant is contesting the amount and propriety of an authorized order of a restitution fine. Section 1202.4, subdivision (b), authorized the amounts imposed here. And defendant's motions raised a factual question about his ability to pay, not a pure question of law. The unauthorized-sentence exception to loss of jurisdiction does not apply here." (Id. at p. 1207.)" `[A]n order is not appealable unless declared to be so by the Constitution or by statute. [Citations.]' [Citation.] Stated simply, a criminal appeal by the defendant may be taken only from `a final judgment of conviction' [citations] or from `any order made after judgment, affecting the substantial rights' of the party [citations]." (People v. Gallardo (2000) 77 Cal.App.4th 971, 980; see also § 1237, subd. (b).) The trial court lacked jurisdiction to waive or modify defendant's restitution fine. Accordingly, its order did not affect his substantial rights, and it is not an appealable postjudgment order. (Turrin, supra, 176 Cal.App.4th at p. 1200; People v. Mendez (2012) 209 Cal.App.4th 32, 34.) We must therefore dismiss the appeal. (Turrin, 176 Cal.App.4th at pp. 1208-1209; Mendez, 209 Cal.App.4th at p. 34.)

DISPOSITION

The appeal is dismissed.

Ruvolo, P.J. and Reardon, J., concurs.

FootNotes


1. Defendant's points and authorities is not a proper subject of judicial notice, and we therefore deny the request for judicial notice. (Evid. Code, §§ 451, 452.) However, as we have stated, we shall treat the memorandum of points and authorities that was attached to the request for judicial notice as part of defendant's supplemental brief.
2. All further statutory references are to the Penal Code.
3. It is not entirely clear that this purported appeal is timely. The trial court directed the clerk to send defendant a copy of the order denying defendant's application on November 2, 2016. However, the record includes a certificate of service by mail, declaring that the clerk sent a copy of the order to defendant's correct address on October 19, 2016, more than 60 days before defendant filed his notice of appeal. (See Cal. Rules of Court, rule 8.308(a).) We need not resolve this issue, however, as we conclude the appeal must be dismissed on another ground.

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