Filed 8/28/20 P. v. Tarkington CA2/3
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                                  DIVISION THREE

THE PEOPLE,                                                         B298503

        Plaintiff and Respondent,                                   (Los Angeles County
                                                                    Super. Ct. No. BA134487)
        v.

ANTHONY L. TARKINGTON,

        Defendant and Appellant.


      APPEAL from an order of the Superior Court of Los
Angeles County, Robert J. Perry, Judge. Appeal dismissed.
      Heather J. Manolakas, 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
Attorneys General, David E. Madeo and Stacey S. Schwartz,
Deputy Attorneys General, for Plaintiff and Respondent.
                   ________________________
       A jury convicted defendant and appellant Anthony L.
Tarkington of second degree murder. At sentencing, the trial
court imposed a $10,000 restitution fine. Over 20 years later,
citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
Tarkington filed a motion in the trial court challenging
imposition of that fine on constitutional grounds. The trial court
treated the motion as a petition for writ of habeas corpus, and
denied it. Tarkington appeals the court’s order. Because the
order is nonappealable, we dismiss the appeal.
                  PROCEDURAL BACKGROUND
       In 1997, a jury convicted Tarkington of second degree
murder, with a deadly weapon enhancement.1 (Pen. Code,
§§ 187, subd. (a);2 12022, subd. (b).) The trial court sentenced
Tarkington to 46 years to life in prison pursuant to the Three
Strikes law. (§ 667, subds. (b)–(i).) Without objection, the court
also imposed a $10,000 restitution fine, observing that
Tarkington would “have ample opportunity to earn money for the
payment of that fine.” (§ 1202.4.) Tarkington appealed, but did
not challenge imposition of the restitution fine or assert that he
was unable to pay it. We affirmed the judgment. (People v.
Tarkington (Aug. 19, 1998, B117520) [nonpub. opn.].) The
remittitur issued on October 23, 1998.



1
      We take judicial notice of the record in Tarkington’s case,
No. B117520, including our opinion on his direct appeal. (Evid.
Code, §§ 452, subd. (d), 459.) Because the evidence regarding the
murder is not relevant to the issue raised on appeal, we do not
discuss it here.
2
     All further undesignated statutory references are to the
Penal Code.




                                2
       In 2019, Dueñas held that due process requires that a trial
court stay execution of a section 1202.4 restitution fine unless
and until the People demonstrate a defendant has the ability to
pay it. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1169–1172.)
Thereafter, Tarkington, acting in propria persona, filed in the
trial court a document entitled “Motion for restitution hearing for
reconsideration of ability to pay and constitutionality of excessive
fines.” Relying on Dueñas, Tarkington argued that the trial
court’s imposition of the restitution fine, without consideration of
his ability to pay, violated the Eighth and Fourteenth
Amendments to the federal constitution. He requested that the
restitution fine be reduced to $200.
       The trial court treated the motion as a petition for writ of
habeas corpus, and denied it. It reasoned that the imposition of
the fine was not an abuse of discretion; a defendant’s prison
wages may be considered when determining ability to pay;
Tarkington presented no evidence at the original sentencing
hearing regarding his alleged inability to pay; and the issue was
forfeited.
       Tarkington filed a timely notice of appeal.
                            DISCUSSION
       Tarkington argues that the imposition of the restitution
fine, absent a determination of his ability to pay, violated due
process, entitling him to resentencing and an ability-to-pay
hearing.3 He contends that the trial court’s order is appealable as


3
      As Tarkington recognizes, our Supreme Court is currently
considering whether a court must evaluate a defendant’s ability
to pay before imposing or executing fines, fees, and assessments.
(People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844.)




                                 3
an order after judgment affecting his substantial rights (§ 1237,
subd. (b)) and because the restitution fine amounted to an
unauthorized sentence. The People contend that the issue has
been forfeited because Tarkington failed to raise his inability to
pay at sentencing; Dueñas does not apply retroactively; and the
restitution fine was not unconstitutionally excessive.
       Contrary to Tarkington’s contention, the order in question
is not appealable. The trial court treated the motion as a petition
for writ of habeas corpus. It is well settled that the denial of such
a petition is not appealable. (In re Clark (1993) 5 Cal.4th 750,
767, fn. 7; People v. Gallardo (2000) 77 Cal.App.4th 971, 986;
People v. Ryan (1953) 118 Cal.App.2d 144, 149.)
       Nor is the court’s order appealable if we treat Tarkington’s
request as a motion, rather than as a writ, because the trial court
lacked jurisdiction to consider such a motion. Generally, once a
judgment is rendered and execution of the defendant’s sentence
has begun, the trial court lacks jurisdiction to vacate or modify
the sentence. (People v. Karaman (1992) 4 Cal.4th 335, 344;
People v. Torres (2020) 44 Cal.App.5th 1081, 1084 (Torres); People
v. Hernandez (2019) 34 Cal.App.5th 323, 326; People v. Turrin
(2009) 176 Cal.App.4th 1200, 1204 (Turrin).) “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, at p. 1084; see also People v. Fuimaono (2019) 32
Cal.App.5th 132, 135; People v. Hernandez, at p. 327; People v.
Littlefield (2018) 24 Cal.App.5th 1086, 1092 [where trial court
lacked jurisdiction over motion, denial of motion did not affect
defendant’s substantial rights under § 1237, subd. (b) and
dismissal of appeal was required].)




                                 4
      Exceptions to this rule exist, but none apply here. (See
Torres, supra, 44 Cal.App.5th at p. 1085; Turrin, supra, 176
Cal.App.4th at pp. 1204–1205, 1207–1208.) For example, a court
may recall a sentence and resentence a defendant under certain
circumstances within 120 days of his or her custody commitment
(§ 1170, subd. (d)(1); Torres, at p. 1085; Turrin, at p. 1204), but
the 120-day period has long since expired in Tarkington’s case.
A court may also correct clerical or computational errors at any
time (Torres, at p. 1085; Turrin, at p. 1205), but the relief
Tarkington sought did not constitute a mere clerical or
computational error.
      An unauthorized sentence may also be corrected at any
time. (Torres, supra, 44 Cal.App.5th at p. 1085; Turrin, supra,
176 Cal.App.4th at p. 1205.) But the $10,000 restitution fine
here did not amount to an unauthorized sentence. The
unauthorized sentence exception is “narrow” and applies only
where the sentence “ ‘could not lawfully be imposed under any
circumstance in the particular case.’ ” (In re G.C. (2020) 8
Cal.5th 1119, 1130; People v. Scott (1994) 9 Cal.4th 331, 354;
People v. Jordan (2018) 21 Cal.App.5th 1136, 1145; Turrin, at
p. 1205.) The appellate court may intervene in the first instance
because such errors “ ‘present[] “pure questions of law” [citation],
and [are] “ ‘clear and correctable’ independent of any factual
issues presented by the record at sentencing” ’ and without
‘remanding for further findings.’ [Citation.]” (In re G.C., at
p. 1130.) In 1997, when Tarkington was sentenced, section
1202.4 authorized a restitution fine of $10,000. (See Stats. 1996,
ch. 629, § 3.) Dueñas does not hold that a restitution fine can
never be imposed, only that the defendant’s ability to pay must
appear as a predicate. (Dueñas, supra, 30 Cal.App.5th at




                                 5
p. 1172.) Determination of a defendant’s ability to pay is a
factual issue that would require remand to the trial court. (See
Torres, at p. 1085 [Dueñas claim is based upon factual arguments
concerning ability to pay, and does not fall within the
unauthorized sentence exception].) Thus, the fine was not an
unauthorized sentence. (People v. Avila (2009) 46 Cal.4th 680,
729 [rejecting contention that, because defendant did not have
ability to pay $10,000 restitution fine, it was an unauthorized
sentence].)
       Nor did the trial court have jurisdiction by virtue of section
1237.2, and Tarkington does not argue to the contrary. That
statute provides that a “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.” But, as our colleagues in Division One recently held,
the 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.” (People v. Torres, supra, 44 Cal.App.5th
at p. 1088.) The impetus behind section 1237.2 was judicial
economy, a purpose that would not be served “by extending the
trial court’s jurisdiction to motions made after the conclusion of
the direct appeal.” (Torres, at pp. 1086–1087.)
       Turrin and Torres are instructive. In Turrin, the
defendant purported to appeal from an order denying his request
to modify restitution fines because he lacked the ability to pay.
His motion was brought months after sentencing, and after his
state prison term had begun. Turrin concluded that the trial
court lacked jurisdiction to entertain the motion, and dismissed
the appeal. (Turrin, supra, 176 Cal.App.4th at pp. 1203, 1208.)




                                 6
Turrin explained, a “defendant may not contest the amount,
specificity, or propriety of an authorized order of a restitution fine
. . . in a motion to modify the same in the trial court after it has
lost jurisdiction.” (Id. at p. 1207.) And in Torres—a case
identical to the case at bar—after his direct appeal concluded, the
defendant filed a Dueñas motion in the superior court, requesting
modification of a $10,000 restitution fine. Torres concluded the
superior court lacked jurisdiction to hear the motion, and
therefore dismissed the appeal. (Torres, supra, 44 Cal.App.5th at
pp. 1083–1085.) Likewise, here, the appeal must be dismissed.
         Tarkington relies on language in People v. Fares (1993) 16
Cal.App.4th 954 (Fares) and People v. Jordan, supra, 21
Cal.App.5th 1136, that there is “no time limitation upon the right
to make [a] motion to correct the sentence.” (Fares, at p. 958;
People v. Jordan, at p. 1140.) Although this language appears
broad, it must be interpreted in context. The only issue in Fares
was whether the trial court’s mathematical computation of
defendant’s custody credits was incorrect. Fares reasoned that
the issue involved a clerical, inadvertent, or negligent error,
requiring only a “ministerial review of the record and an
arithmetic calculation.” (Id. at pp. 957, 959.)4 Where this was
the only issue on appeal, judicial economy mandated resolution in
the trial court in the first instance. (Id. at pp. 958–960.)
         But in Fares, the erroneous custody credit award amounted
to an unauthorized sentence. A “sentence that fails to award


4
      In response to Fares, the Legislature enacted section
1237.1, which—similar to the later-enacted section 1237.2—
requires that, where it is the only issue on appeal, a defendant
must first request correction of a conduct credit award in the trial
court. (People v. Jordan, supra, 21 Cal.App.5th at p. 1141.)




                                  7
legally mandated custody credit is unauthorized and may be
corrected whenever discovered.” (People v. Taylor (2004) 119
Cal.App.4th 628, 647; People v. Gisbert (2012) 205 Cal.App.4th
277, 282 [award of custody credits which court lacked discretion
to make was “an unauthorized sentence, which the trial court
had jurisdiction to correct at any time”]; People v. Acosta (1996)
48 Cal.App.4th 411, 428, fn. 8 [“The failure to award an adequate
amount of credits is a jurisdictional error which may be raised at
any time”].) Thus, the Fares court’s pronouncement was correct
in the context of that case, but cannot be read to confer
jurisdiction on trial courts to consider motions to correct
sentences that do not fall within the unauthorized sentence or
clerical error exceptions.
       People v. Jordan likewise does not assist Tarkington.
There, while the defendant’s direct appeal was pending, he
moved in the trial court, pursuant to section 1237.2, to strike a
penalty assessment imposed on a laboratory analysis fee as
unauthorized. After the trial court denied his motion—and while
his first appeal was still pending—Jordan filed a second notice of
appeal on the sentencing issue. (People v. Jordan, supra, 21
Cal.App.5th at pp. 1139–1140.) Quoting the “no time limitation”
language from Fares, Jordan declined to dismiss the second
appeal. (Id. at p. 1140.)5 Thus, unlike in the instant matter,
because Jordan’s appeal was pending, the trial court still had
express statutory jurisdiction to consider his motion by virtue of
section 1237.2.



5
      The court nonetheless found the sentencing issue was
waived because Jordan failed to raise it in his original appeal.
(People v. Jordan, supra, 21 Cal.App.5th at p. 1139.)




                                 8
       Finally, even if we were to conclude the order at issue was
appealable, Tarkington’s claim would fail, because he forfeited
any challenge to the fine imposed. When the trial court imposed
the $10,000 restitution fine, former section 1202.4, subdivision (c)
provided that inability to pay could be considered if the
restitution fine was imposed in excess of the minimum. (See
Stats. 1996, ch. 629, § 3.) Because the $10,000 fine imposed was
well above the minimum, Tarkington had a statutory right to an
ability-to-pay determination at sentencing. Thus, although
sentencing occurred before Dueñas was decided, an objection to
the $10,000 fine would not have been futile at the time. When
the trial court imposed the fine, Tarkington did not object, assert
that he was indigent, or request an ability-to-pay determination.
By failing to do so, he forfeited the claim. (See, e.g., People v.
Miracle (2018) 6 Cal.5th 318, 356; People v. Nelson (2011) 51
Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347,
409; People v. Avila, supra, 46 Cal.4th at p. 729; People v. Smith
(2020) 46 Cal.App.5th 375, 394–395; People v. Jenkins (2019) 40
Cal.App.5th 30, 40, review granted on another ground Nov. 26,
2019, and review dismissed July 29, 2020, S258729; People v.
Aviles (2019) 39 Cal.App.5th 1055, 1073–1074; People v. Gutierrez
(2019) 35 Cal.App.5th 1027, 1033.) Furthermore, Tarkington’s
failure to raise the issue in his direct appeal also waived it.
(People v. Jordan, supra, 21 Cal.App.5th at p. 1145.)6




6
      In light of our disposition, we need not address the People’s
arguments that Dueñas does not apply retroactively and the
restitution fine was not unconstitutionally excessive.




                                 9
                       DISPOSITION
     The appeal is dismissed.

    NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS




                                     EDMON, P. J.



We concur:




              LAVIN, J.




              EGERTON, J.




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