Filed 4/14/14 P. v. Laws CA2/4
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                          B249705

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. KA008785)
         v.

BRIAN KEITH LAWS,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Robert M.
Martinez, Judge. Appeal dismissed.
         Ann Krausz, under appointment by the Court of Appeal, for Appellant.
         No appearance for Respondent.
       Brian Keith Laws appeals from the denial of his motion to strike or modify a
restitution order. The order denying his motion is not appealable. We dismiss the appeal.


                      FACTUAL AND PROCEDURAL SUMMARY
       Laws was convicted by jury of first degree murder (Pen. Code § 187, subd. (a)1)
and second degree robbery (§ 211). The jury found true special allegations that he had
personally used a firearm as to both counts (§ 12022.5, subd. (a)). He was sentenced to
state prison without the possibility of parole. The trial court ordered Laws to pay
restitution of $7,500 pursuant to former Government Code section 13967. We affirmed
his conviction in an unpublished opinion. (People v. Laws (June 30, 1994, B075311)
[nonpub. opn.].)
       In 2009, Laws filed a request in pro per that he be excused from paying restitution.
The request was denied. In 2013, he filed a new motion to strike or modify the restitution
order, citing People v. Oganesyan (1999) 70 Cal.App.4th 1178, which ruled that where a
sentence of life in prison without possibility of parole has been imposed, and a restitution
fine imposed under section 1202.4, subdivision (b), a second restitution fine may not be
imposed under section 1202.45. He also cited other authority regarding the handling of
the State Restitution Fund and the bar on a restitution fine to reimburse public agencies
for the costs of investigating and prosecuting crimes. He argued that a defendant’s
inability to pay may constitute compelling circumstances for waiver of a restitution fine.
He asked the court to either strike the $7,500 restitution fine imposed under Government
Code section 13967 or to reduce it to the minimum amount of $200. The motion was
denied. Laws filed a timely appeal from that order.




       1   Statutory references are to the Penal Code unless otherwise indicated.


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                                        DISCUSSION
       We appointed counsel to represent Laws on appeal. Counsel filed an appellate
brief raising no issues, but asking this court to independently review the record on appeal
pursuant to People v. Wende (1979) 25 Cal.3d 436, 441–442.) We advised Laws that he
had 30 days within which to submit by brief or letter any contentions or arguments he
wished this court to consider.
       Laws filed a brief in pro. per., arguing the restitution fine was improper because
the trial court failed to take into consideration his financial status, including ability to pay
the fine. He claimed he had no income at the time of conviction, and had been
incarcerated for over 20 years without a job with a pay number. At some point he was
transferred to the California State Prison Lancaster, where he has a job making 13 cents
per hour. He set out the various deductions taken from his prison pay. He attached an
exhibit establishing his pay rate of 13 cents per hour in prison. He asked this court to
reduce the amount of his restitution to zero, or to the statutory minimum of $200.
       The order denying the motion to strike or modify the restitution fine is not
separately appealable. The same issue was raised in People v. Turrin (2009) 176
Cal.App.4th 1200 (Turrin). In concluding that an order denying a motion to modify or
reduce a restitution fine was not appealable, the court reasoned that execution of the
defendant’s sentence had begun. (Id. at p. 1205.) That is the case here. The defendant in
Turrin had claimed there was insufficient evidence of his ability to pay the fines from his
earnings while incarcerated or from earnings from employment after release. The Court
of Appeal concluded the trial court had lost jurisdiction and had no statutory authority to
recall the sentence on its own motion since section 1170, subdivision (d), requires the
trial court to act within 120 days. (Id. at pp. 1204–1205.) The defendant did not seek
correction of clerical error but instead claimed judicial error. (Id. at p. 1206.)
       The Turrin court concluded: “A defendant may not contest the amount,
specificity, or propriety of an authorized order of a restitution fine for the first time on
appeal [citations] 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

                                               3
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.)
       The Turrin court dismissed the appeal: “Section 1237, subdivision (b), provides
that a defendant may appeal ‘[f]rom any order made after judgment, affecting the
substantial rights of the party.’ Since the trial court lacked jurisdiction to modify the
restitution fines, its order denying defendant’s motion requesting the same did not affect
his substantial rights and is not an appealable postjudgment order. [Citation.] The appeal
should be dismissed. [Citation.]” (Turrin, supra, 176 Cal.App.4th at p. 1208.)
       The same reasoning applies here. The restitution fine imposed here was under the
$10,000 maximum of Government Code section 13967 as it read in 1991.2
       Laws attempts to appeal from the court’s denial of his postjudgment motion to
strike or modify the restitution fine filed many years after he began serving his sentence.
Under the reasoning of Turrin, supra, 175 Cal.App.4th 1200, which we adopt, the order
is not appealable.




       2  Former Government Code section 13967 provided in 1991: “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 one hundred dollars ($100) and not more than
ten thousand dollars ($10,000). In setting the amount of the fine for felony convictions,
the court shall consider any relevant factors including, but not limited to, the seriousness
and gravity of the offense and the circumstances of its commission, any economic gain
derived by the defendant as a result of the crime, and the extent to which others suffered
losses as a result of the crime. Those losses may include pecuniary losses to the victim or
his or her dependents as well as intangible losses, such as psychological harm caused by
the crime. Except as provided by Section 1202.4 of the Penal Code and subdivision (c)
of this section, under no circumstances shall the court fail to impose the separate and
additional restitution fine required by this section.”

                                              4
                                DISPOSITION
     The appeal is dismissed.




                                         EPSTEIN, P. J.
We concur:



     WILLHITE, J.



     MANELLA, J.




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