Filed 1/2/15 P. v. Lynch CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067486

                   v.                                                   (Super. Ct. No. VCF195886)

CHARLES BENJAMIN LYNCH,                                                              OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
         William I. Parks, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Levy, Acting P.J., Poochigian, J., and Detjen, J.
       Defendant Charles Benjamin Lynch pled no contest to multiple counts arising
from harm he inflicted on his girlfriend in 2007. He appeals the trial court’s denial of his
motion to strike or modify the fines and fees, asking that we strike two of the fines
because the trial court failed to determine his ability to pay. We dismiss the appeal.
                              PROCEDURAL SUMMARY
Plea and Sentencing
       On December 22, 2008, defendant pled no contest to 14 felony counts in return for
a stipulated sentence of 19 years in state prison. On February 4, 2009, the trial court
sentenced defendant to the 19-year term and ordered him to pay fines and fees totaling
$12,080, as follows: a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)),1 plus a
suspended $10,000 parole revocation fine (§ 1202.45); a $280 court security fee
(§ 1465.8); an $800 medical examination fee (§ 1203.1h, subd. (b)); and a $1,000 child
abuse prevention restitution fine (§ 294, subd. (a)).
       On February 18, 2009, the court held another sentencing hearing to modify the
sentences on counts 13 and 14, changing them to one year each. Defendant was present
and accompanied by counsel.
       On March 24, 2009, an ex parte hearing was held to modify the February 18, 2009
minute order to reflect that the sentence on count 13 was modified to one year
four months and count 14 was modified to one year four months with the four-month
portion stayed, for a total term of two years four months on those two counts. The
modifications brought the total sentence to 19 years again. Defendant was present and
accompanied by counsel. The same day, an abstract of judgment reflecting these
modifications was filed.2


1      All statutory references are to the Penal Code unless otherwise noted.
2      We note that count 14 was recorded as a one-year term.


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        Defendant did not file a notice of appeal in 2009.
Motion to Strike/Modify
        Four years later, on April 17, 2013, the trial court received defendant’s pro per
motion to strike/modify the fines/fees, based on his inability to pay.
        On April 29, 2013, the court denied the motion without hearing or comment.
        On June 4, 2013, defendant filed a notice of appeal of the denial of his motion to
strike/modify the fines/fees.
Notification by Department of Corrections and Rehabilitation
        Meanwhile, on May 2, 2013, a few days after the court denied defendant’s motion
to strike/modify the fines/fees, the trial court received a letter from the Department of
Corrections and Rehabilitation, noting sentencing errors in the 2009 sentence and
requesting that the trial court review the file and clarify the sentences. The letter cited
People v. Hill (1986) 185 Cal.App.3d 831 and stated: “When notified by the Department
of Corrections and Rehabilitation that an illegal sentence exists, the trial court is entitled
to reconsider all sentencing choices.”
        On July 19, 2013, the trial court held a resentencing hearing. Defendant was
present with his attorney. After some discussion, the hearing was continued to July 25,
2013.
        On July 25, 2013, the resentencing hearing was held. Again, defendant was
present with his attorney. The court agreed with defense counsel’s proposed changes to
correct the errors while retaining the 19-year sentence.
        On August 5, 2013, an amended abstract of judgment was filed, reflecting
modification of 11 terms.
                                         DISCUSSION
        Defendant now contends that after his 2013 motion to strike/modify the fines/fees,
the trial court erred in (1) failing to conduct a hearing on the motion and (2) failing to

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make a determination of defendant’s ability to pay the fines and fees. Defendant asks
that we strike the $800 medical examination fee (§ 1203.1h, subd. (b)) and the $1,000
child abuse prevention restitution fine (§ 294, subd. (a)) because both required a finding
of ability to pay.
       The People respond that defendant’s failure to object to the fines and fees at the
time they were imposed in 2009 forfeits the claim on appeal. The People also argue that
defendant’s failure to file a notice of appeal in 2009 means we lack appellate jurisdiction
to hear the case.
       In reply, defendant explains that we have jurisdiction to hear the case because
notification by the Department of Corrections and Rehabilitation on May 2, 2013,
conferred jurisdiction on the trial court and allowed it to reconsider all its sentencing
choices, including imposition of fines and fees. Defendant asserts that the present appeal
is based entirely on the 2013 resentencing proceedings. Defendant further explains that
he has not forfeited the issue by failing to object to the fines and fees at the 2009
sentencing hearing because the issue before us now is the 2013 resentencing, not the
2009 sentencing. He says he raised his objections by way of his motion to strike/modify
the fines/fees filed on April 15, 2013.
       We conclude that the trial court did not have jurisdiction to entertain defendant’s
motion to strike/modify the fines/fees when it denied the motion in 2013, and that
defendant forfeited the issue by failing to raise it before the trial court when it did have
jurisdiction. We explain in greater detail.
Forfeiture in 2009
       When the trial court initially sentenced defendant in 2009, he failed to object to
the fines and fees. Shortly thereafter, he was resentenced twice. Both times he was
present with counsel and both times he failed to object to the fines and fees. These
failures to object would have forfeited the issue on appeal had defendant filed a notice of

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appeal at that time. (People v. McCullough (2013) 56 Cal.4th 589, 593 [“‘Ordinarily, a
criminal defendant who does not challenge an assertedly erroneous ruling of the trial
court in that court has forfeited his or her right to raise the claim on appeal’”]; id. at
p. 597 [defendant’s failure to object in trial court forfeited argument that there was no
evidence of his ability to pay booking fee].)
Lack of Jurisdiction to Hear Motion in 2013
       In 2013, when defendant did raise his challenge to the fees and fines, the trial
court no longer had jurisdiction to hear the motion. Ordinarily, a trial court is deprived of
jurisdiction to amend a sentence once the execution of that sentence has commenced.
(People v. Karaman (1992) 4 Cal.4th 335, 344.) An exception to this general rule is
found in section 1170, subdivision (d), but under that provision, resentencing must occur
within 120 days: “[T]he court may, within 120 days of the date of commitment on its
own motion, … recall the sentence and commitment previously ordered and resentence
the defendant in the same manner as if he or she had not previously been sentenced,
provided the new sentence, if any, is no greater than the initial sentence.” (§ 1170,
subd. (d).)3 Defendant raised his motion about four years after commencement of his
sentence and therefore the trial court no longer had jurisdiction to modify the sentence.
Forfeiture after Jurisdiction Conferred
       Defendant argues, however, that the trial court’s jurisdiction was restored when it
received the letter from the Department of Corrections and Rehabilitation on May 2,
2013, only days after his motion was denied. We agree that this letter conferred
jurisdiction on the trial court to reconsider its sentence under another exception in
section 1170, subdivision (d): “[T]he court may, … at any time upon the
recommendation of the secretary [of the Department of Corrections and Rehabilitation]

3      We quote from the 2009 version of the statute.


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or the Board of Parole Hearings, recall the sentence and commitment previously ordered
and resentence the defendant in the same manner as if he or she had not previously been
sentenced, provided the new sentence, if any, is no greater than the initial sentence.”
(See People v. Hill, supra, 185 Cal.App.3d at p. 834 [“When a case is remanded for
resentencing by an appellate court, the trial court is entitled to consider the entire
sentencing scheme. Not limited to merely striking illegal portions, the trial court may
reconsider all sentencing choices…. We see no reason why this reasoning should not
apply where, as here, the Department of Corrections rather than the Court of Appeal
notifies the trial court of an illegality in the sentence.”].)
       But, although the trial court had jurisdiction to reconsider the sentence in its
entirety at this point in 2013, defendant again failed to raise the issue of fines and fees,
despite being present and represented by counsel at two resentencing hearings. This
failure again forfeited the issue on appeal. (People v. McCullough, supra, 56 Cal.4th at
p. 593.)
       Defendant argues that he had recently raised the issue in his motion to
strike/modify the fines/fees, and therefore he did not forfeit the issue. But when he made
that motion, the trial court had no jurisdiction to consider it. As an untimely motion,
which the court had no jurisdiction to hear, the motion did not function to raise issues
before the trial court at a later time when the court happened to gain jurisdiction. As a
result, defendant did not raise the issue before the trial court and thus he has forfeited the
issue on appeal.
       Accordingly, this appeal does not raise a cognizable issue and must be dismissed.
                                        DISPOSITION
       The appeal is dismissed.




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