Filed 2/24/15 P. v. Ybarra CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C073604

         v.                                                                      (Super. Ct. No. 93F01290)

RUBEN YBARRA,

                   Defendant and Appellant.


         Defendant Ruben Ybarra appeals from an order after judgment―entered
nearly two decades after judgment was entered―denying his motion for a hearing
to allow the trial court to reconsider the restitution fine previously imposed. We
conclude the order is not appealable and dismiss the appeal.




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                                       BACKGROUND
       In 1993, defendant was convicted by jury of assault with a deadly weapon
while confined in a state prison (Pen. Code, § 4501)1 and possession of a sharp
instrument while confined in a state prison (§ 4502). The jury also found defendant
was previously convicted of a serious felony offense within the meaning of section 667,
subdivision (a). The trial court sentenced defendant to serve an aggregate determinate
term of nine years in state prison and imposed other orders, including an order to
pay a restitution fine in the amount of $1,800. Defendant did not challenge imposition of
this fine at the sentencing hearing and did not appeal from the judgment.
       In 2013, defendant filed a motion in the trial court titled, “Motion for Restitution
Hearing for Reconsideration of Ability to Pay and Constitutionality of Excessive Fines.”
The motion requested a hearing to allow the trial court to reconsider the restitution
fine, asserting the trial court “failed to consider [his] ability to pay, as well as the
prohibition against excessive fines, when it imposed the restitution fine” in 1993.
The trial court denied the motion. Defendant appeals.
                                        DISCUSSION
       Section 1237 provides in relevant part: “An appeal may be taken by the
defendant: [¶] (a) From a final judgment of conviction . . . . A sentence . . . shall be
deemed to be a final judgment within the meaning of this section. . . . [¶] (b) From
any order made after judgment, affecting the substantial rights of the party.”
       Defendant appeals from the trial court’s denial of his post-judgment motion for
a hearing to allow the trial court to reconsider the restitution fine previously imposed




1      Undesignated statutory references are to the Penal Code.


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at the 1993 sentencing hearing. This is not an appeal from the sentence. If it were, we
would dismiss it as untimely.
       In order to appeal from the sentence, a defendant must file a notice of appeal
in the superior court within 60 days after rendition of judgment. (Cal. Rules of Court,
rules 8.304(a)(1), 8.308(a); see generally, § 1239, subd. (a).) “A timely notice of appeal,
as a general matter, is ‘essential to appellate jurisdiction.’ [Citation.] It largely divests
the superior court of jurisdiction and vests it in the Court of Appeal. [Citation.] An
untimely notice of appeal is ‘wholly ineffectual: The delay cannot be waived, it cannot
be cured by nunc pro tunc order, and the appellate court has no power to give relief,
but must dismiss the appeal on motion or on its own motion.’ [Citation.] The purpose
of the requirement of a timely notice of appeal is, self-evidently, to further the finality
of judgments by causing the defendant to take an appeal expeditiously or not at all.”
(People v. Mendez (1999) 19 Cal.4th 1084, 1094.)
       Here, defendant did not file a notice of appeal within 60 days of sentencing on
July 16, 1993, i.e., by September 14, 1993. Instead, he waited nearly 20 years, filed a
motion effectively asking the trial court to modify the restitution fine, and then appealed
from the trial court’s denial of this motion. Accordingly, we must determine whether
this denial constitutes an appealable order after judgment within the meaning of section
1237, subdivision (b). As we have previously explained, and do so again immediately
below, it does not.
       In People v. Turrin (2009) 176 Cal.App.4th 1200 (Turrin), the defendant filed a
motion in the trial court, 10 months after judgment was entered and while he was
serving his sentence in state prison, seeking modification of three restitution fines. (Id. at
p. 1203.) We held the trial court’s order denying this motion was not an appealable post-
judgment order because the trial court lacked jurisdiction to modify the restitution




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fines after execution of sentence had begun, and therefore, the order denying the motion
did not affect the defendant’s substantial rights. (Id. at p. 1208.) As we explained, a trial
court generally lacks jurisdiction to resentence a criminal defendant after execution of
sentence has begun. (Id. at p. 1204.) And while there are exceptions to this rule, i.e.,
(1) the “trial court may recall the sentence on its own motion within 120 days after
committing a defendant to prison” under section 1170, subdivision (d), (2) the “trial court
may correct a clerical error, but not a judicial error, at any time,” and (3) “an
unauthorized sentence may be corrected at any time,” none of these exceptions applied
in Turrin. (Id. at pp. 1204-1205.) First, the trial court “did not recall the sentence on
its own motion and had no statutory authority to do so since section 1170, subdivision
(d), requires the trial court to act within 120 days.” Second, the defendant “did not seek
correction of clerical error but instead he claimed judicial error.” (Id. at p. 1206.)
Finally, turning to the unauthorized sentence exception, we explained: “A defendant may
not contest the amount, specificity, or propriety of an authorized order of a restitution fine
for the first time on appeal [citing People v. Crittle (2007) 154 Cal.App.4th 368, 371;
People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469] let alone in a motion to
modify the same in the trial court after it has lost jurisdiction. 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 motion
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.)
       Our decision in Turrin, supra, 176 Cal.App.4th 1200, was followed in People v.
Mendez (2012) 209 Cal.App.4th 32, where the defendant filed a similar motion more
than three years after execution of sentence had begun. There, the Court of Appeal




                                              4
added: “Indeed, it has been the law since long before Turrin that an order denying
a motion to modify the judgment in a criminal case is not an appealable order.” (Id. at
p. 34, fn. 1, citing People v. Cantrell (1961) 197 Cal.App.2d 40, 43; People v.
Brattingham (1928) 91 Cal.App. 527, 527-528; see also People v. Fleischer (1963)
213 Cal.App.2d 481, 484; People v. Vaitonis (1962) 200 Cal.App.2d 156, 158-159.)
       Here, as in Turrin, none of the exceptions to loss of jurisdiction applies. The
trial court did not recall the sentence on its own motion within 120 days. Defendant
did not seek correction of a clerical error. And, contrary to defendant’s argument on
appeal, the trial court’s imposition of the $1,800 restitution fine does not amount to an
unauthorized sentence. Defendant argues it does because the restitution statute in effect
at the time the fine was imposed (former Gov. Code § 13967 (as amended by Stats. 1992,
ch. 682, § 4, pp. 2922-2923))2 conditioned imposition of such a fine on a defendant’s
ability to pay, and the trial court made no such determination. Not so.
       As we explained in Turrin: “‘The unauthorized sentence exception is “a
narrow exception” to the [forfeiture] 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 [non-forfeitable] claims includes “obvious



2       Former Government Code section 13967, subdivision (a), provided in relevant
part: “Upon a person being convicted of any crime in the State of California, the court
shall, in addition to any other penalty provided or imposed under the law, order the
defendant to pay restitution in the form of a penalty assessment in accordance with
Section 1464 of the Penal Code and to pay restitution to the victim in accordance with
subdivision (c). In addition, if the person is convicted of one or more felony offenses, the
court shall impose a separate and additional restitution fine of not less than two hundred
dollars ($200), subject to the defendant’s ability to pay, and not more than ten thousand
dollars ($10,000).”


                                             5
legal errors at sentencing that are correctable without referring to factual findings
in the record or remanding for further proceedings.”’ [Citation.]” (Turrin, supra,
176 Cal.App.4th at p. 1205; see also In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2
[stating that the correct legal term for loss of right based on failure to assert it in a
timely fashion is forfeiture, not waiver].) And, as we held in People v. Gibson, supra,
27 Cal.App.4th 1466, a defendant’s failure to object to a restitution fine forfeits the
claim that the trial court failed to consider his ability to pay the fine. (Id. at p. 1467-
1468.) As long as the fine imposed is within the range authorized by the statute (see
People v. Zito (1992) 8 Cal.App.4th 736, 740-742 [victim restitution and restitution fine
that exceeded $10,000 maximum set by pre-1990 law constituted an unauthorized
sentence]), the fine is authorized in the sense that it could lawfully be imposed depending
on the circumstances in the particular case, i.e., whether or not the defendant possesses
the ability to pay.
       Here, the $1,800 restitution fine was within the range authorized by former
Government Code section 13967. Thus, the fine was not unauthorized. (See People v.
Avila (2009) 46 Cal.4th 680, 729.) Because defendant’s motion contested “the amount
and propriety of an authorized order of a restitution fine[,] . . . [t]he unauthorized-
sentence exception to loss of jurisdiction does not apply here.” (Turrin, supra, 176
Cal.App.4th at p. 1207.) And because the trial court lacked jurisdiction to modify the
restitution fine, its order denying defendant’s motion “did not affect his substantial
rights and is not an appealable postjudgment order.” (Id. at p. 1208.) We therefore
dismiss the appeal.




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                                   DISPOSITION
     The appeal is dismissed.




                                                 HOCH   , J.



We concur:



  NICHOLSON       , Acting P. J.



     ROBIE       , J.




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