Filed 2/8/22 P. v. Harrell CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted defendant and appellant Joshua Neil Harrell of three felony counts of fraudulent possession of personal identification (Pen. Code,[1] § 530.5, subd. (c)(2)). At sentencing, the trial court imposed an aggregate sentence of 12 years eight months and a $9,000 restitution fine. More than a year later and while his direct appeal was pending in this court, Harrell filed a motion in the trial court challenging the restitution fine on constitutional grounds pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The trial court denied the motion, and Harrell appealed. We affirmed the denial; the pending appeal had divested the trial court of jurisdiction, and no exception applied. Following the remittitur in the direct appeal, Harrell filed a second motion to modify the restitution fine under Dueñas, which the trial court denied. Harrell appeals this second order. Because this order is nonappealable, we dismiss the appeal.

BACKGROUND[2]

In August 2018, a jury convicted Harrell of three felony counts of acquiring or keeping the personal identification of three individuals in violation of section 530.5, subdivision (c)(2). On October 25, 2018, the trial court imposed an aggregate sentence of 12 years eight months in prison, which included four sentence enhancements (§ 667.5, subd. (b).) Without objection, the court also imposed a $9,000 restitution fine pursuant to section 1202.4.

A. First Appeal (Case No. A156017)

On December 19, 2018, Harrell filed a notice of appeal, challenging, among other things, the four sentence enhancements. He did not challenge the imposition of the $9,000 restitution fine. We struck the four enhancements imposed under section 667.5 and otherwise affirmed the judgment. This decision became final upon the issuance of the remittitur on December 15, 2020.

B. First Petition to Modify Sentence and Second Appeal
(Case No. A159923)

On February 11, 2020, while the first appeal was pending, Harrell filed a petition for modification of his sentence in the trial court. (People v. Harrell, supra, A159923.) Harrell argued his $9,000 restitution fine imposed under section 1202.4 was excessive under Dueñas. On the same day that Harrell filed this petition, the trial court denied it.

On March 9, 2020, Harrell filed a notice of appeal. (People v. Harrell, supra, A159923.) We affirmed, explaining the trial court had been divested of jurisdiction to recall Harrell’s sentence in light of the pending appeal in Case No. A156017. (People v. Harrell, supra, A159923.) We further noted that although a trial court retains limited jurisdiction for a period of 120 days to recall a sentence and resentence a defendant notwithstanding the pendency of an appeal (§ 1170, subd. (d)), more than 120 days had passed when Harrell filed his motion for modification. (People v. Harrell, supra, A159923.)

C. Proceedings in the Trial Court Following First Appeal
(Case No. A156017)

On September 18, 2020, the trial court issued an amended abstract of judgment, striking the four enhancements previously imposed under section 667.5, subdivision (b). The amended abstract of judgment reflects the trial court imposed a state prison term of 8 years 8 months and reimposed the $9,000 restitution fine.

D. Second Petition to Modify Sentence and Current (Third) Appeal
(Case No. A162214)

On December 15, 2020, the date the direct appeal was certified as final, Harrell filed a second ex parte “Motion for Restitution Hearing,” again arguing that imposition of the $9,000 restitution fine was excessive in light of Dueñas.

On February 10, 2021, the trial court issued a written order denying the second petition.[3] Reciting the postconviction history, the trial court explained, “The First District did not touch on Duenas, however, there is no evidence that Defendant made any showing at sentencing of an inability to pay to potentially preserve the issue. ‘Had defendant brought his argument to the court’s attention, it could have exercised its direction and considered defendant’s ability to pay, along with other relevant factors, in ascertaining the fine amount.’ (People v. Avila (2009) 46 Cal.4th 680, 729.). Therefore, regardless of Duenas and its progeny, he has forfeited this challenge. (Ibid. [finding forfeiture where the defendant failed to object to imposition of restitution fine under former § 1202.4 based on inability to pay.].)”

Harrell filed a timely notice of appeal.

DISCUSSION

Harrell argues 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.[4] He contends the trial court’s order is appealable as an order affecting his substantial rights (§ 1237, subd. (b).) The Attorney General contends the appeal should be dismissed because Harrell’s December 2020 motion was unauthorized and, thus, the order denying it was not appealable. According to the Attorney General, the appeal should be dismissed because Harrell had no standing to challenge the denial of his motion to recall sentence because section 1170, subdivision (d) is limited to action brought by the trial court (or certain enumerated offices) on its own motion. Although we agree that Harrell’s appeal must be dismissed, we disagree with the reason advanced by the Attorney General.^[5] As we explain, the fact that the resentencing motion came from Harrell rather than the trial court itself is not dispositive. Rather, the trial court was without jurisdiction to recall Harrell’s sentence—whether on its own motion or by ex parte request—because the motion was unquestionably untimely.

A. Applicable Law

“The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.” (People v. Loper (2015) 60 Cal.4th 1155, 1159 (Loper).) Section 1237, subdivision (b), authorizes an appeal “[f]rom any order made after judgment, affecting the substantial rights of the party.”

“Subject to limited exceptions, well-established law provides that the trial court is divested of jurisdiction once execution of a sentence has begun.” (People v. Scarbrough (2015) 240 Cal.App.4th 916, 923.)

Section 1170, subdivision (d), provides such an exception, providing the trial court with “jurisdiction for a period of 120 days to recall a defendant’s sentence for reasons rationally related to lawful sentencing and to resentence a defendant as if he or she had not been sentenced previously.” (People v. Scarbrough, supra, 240 Cal.App.4th at pp. 923–924; see Dix v. Superior Court (1991) 53 Cal.3d 442, 455 [§ 1170, subd. (d) creates “an exception to the common law rule that the [trial] court loses resentencing jurisdiction once execution of sentence has begun”]; see also Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1835–1836 [filing of notice of appeal does not divest trial court of “limited jurisdiction” provided by § 1170, subd. (d), which sets forth “specific scheme for the trial court to exercise jurisdiction for a limited time after it normally would have lost jurisdiction”].)

Resentencing effectively creates another exception. Even when a defendant has begun serving his or her sentence during the pendency of an appeal, where the appellate court remands the matter for resentencing, the trial court obviously regains jurisdiction to do so. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1257 (Burbine).)

B. Analysis

Harrell argues that “re-sentencing ordered by this court began a new 120[-]day period during which the trial court had jurisdiction” to recall his sentence. In support of this position, Harrell relies on Burbine, supra, 106 Cal.App.4th at p. 1257 and People v. Rosas (2010) 191 Cal.App.4th 107, 117, which hold that a trial court on remand for resentencing is entitled to consider the entire sentence and is not limited to striking the illegal portions of the sentence. While we have no quarrel with the basic proposition that on remand a trial court regains limited jurisdiction to resentence a defendant (see People v. Lewis (2004) 33 Cal.4th 214, 228), these cases do not address what effect, if any, a remand for resentencing might have on the 120-day jurisdictional time limit set forth in section 1170, subdivision (d). We need not resolve this question because in the present case there was no remand for resentencing. Instead, this court struck the enhancements on our own motion due to an amendment to section 667.5, subdivision (b), which provided that enhanced punishment for prior prison terms served was limited to sexually violent offenses. As none of Harrell’s prior prison terms were for sexually violent offenses, we concluded he was entitled to the benefit of amended section 667.5, subdivision (b). Our disposition was, as follows: “The judgment is affirmed, except that the section 667.5[, subdivision ](b) sentence enhancements are stricken.”

When, as here, sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified. (See, e.g., People v. Haskin (1992) 4 Cal.App.4th 1434, 1441; People v. Mesa (1975) 14 Cal.3d 466, 471–472; People v. Ketchel (1969) 71 Cal.2d 635, 639, fn. 2.) Although the trial court noted that it had “resentenced” Harrell in September 2020, there is no minute order or reporter’s transcript memorializing that a resentencing hearing had occurred. Rather, the record reflects the trial court merely amended the abstract of judgment to conform with the modified judgment.

The trial court properly denied Harrell’s December 2020 motion for lack of jurisdiction because more than 120 days had elapsed since the October 2018 sentencing.^[6] (See Loper, supra, 60 Cal.4th at pp. 1165–1166; People v. Chlad (1992) 6 Cal.App.4th 1719, 1726; People v. Gainer (1982) 133 Cal.App.3d 636, 641–642.) As the trial court had no jurisdiction to resentence on its own motion, Harrell, similarly, had no authority to file his belated motion. The trial court’s refusal to act on Harrell’s motion seeking a restitution hearing could not have affected his legal rights, and, as such, his appeal must be dismissed. (See Loper, at pp. 1165–1166 [approving the dismissals in Chlad and Gainer].)

Even assuming for the sake of argument that amendment of the abstract of judgment constituted a “resentencing” that restarted the 120-day clock under section 1170, subdivision (d), Harrell had already forfeited his restitution challenge by not objecting to the restitution fine amount at the original sentencing. 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 when the court considers imposing a restitution fine. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1172.)

At the time Harrell was sentenced, section 1202.4 required a statutory minimum restitution fine of $300 and authorized a maximum fine up to $10,000. (§ 1202.4, see Stats. 2017, ch. 101, § 1.) The trial court imposed a $9,000 restitution fine. Since $9,000 was an amount in excess of the minimum fine (§ 1202.4, subd. (c)), Harrell had statutory grounds to object to the restitution fine even before Dueñas. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) He did not do so. Thus, as the trial court correctly noted, regardless of Dueñas and its progeny, Harrell forfeited his challenge. (See People v. Johnson (2019) 35 Cal.App.5th 134, 138, fn. 5 [acknowledging forfeiture by failure to challenge restitution fine above statutory minimum].)

DISPOSITION

Harrell’s appeal of the February 10, 2021 order denying his ex parte request for a modification of sentence under section 1170, subdivision (d) is dismissed.

_________________________

Desautels, J.*

WE CONCUR:

_________________________

Streeter, Acting P.J.

_________________________

Brown, J.

A162214 People v. Harrell

[1] All further undesignated statutory references are to the Penal Code.

[2] This is Harrell’s third appeal. We take judicial notice of the record in the prior appeals in People v. Harrell (Aug. 10, 2020, A156017) [nonpub. opn.] (Case No. A156017) and People v. Harrell (Aug. 10, 2020, A159923) [nonpub. opn.] (Case No. A159923), including our prior opinions. (Evid. Code, §§ 452, subd. (d), 459.) Because the evidence regarding the underlying offense is not relevant to the issue raised on appeal, we do not discuss it here.

[3] The order also addressed a separate motion for resentencing filed on January 15, 2021, in which Harrell challenged certain prior convictions. In appellate briefing, Harrell does not challenge the denial of this separate motion. Accordingly, any claims regarding the January 15, 2021 motion are foreclosed. (See People v. Zamudio (2008) 43 Cal.4th 327, 353–354 [issues not raised in the opening brief on appeal are forfeited].)

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

[5] Although a motion for resentencing under section 1170, subdivision (d) must be on the trial court’s own motion, appellate courts, including this one, have recognized that it is not improper for counsel to contact the court ex parte and request resentencing under this section. (People v. Laue (1982) 130 Cal.App.3d 1055, 1060.)

[6] Similarly, Harrell’s initial February 2020 motion was also well outside the 120-day period.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.