Filed 4/3/18 P. v. Thompson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(San Joaquin)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

BERTRAND THOMPSON,

Defendant and Appellant.


C085519

(Super. Ct. No. STKCRCNV19980016794)


Appointed counsel for defendant Bertrand Thompson filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) As we explain, the order from which defendant appeals is a non appealable order. Accordingly, we shall dismiss the appeal.
BACKGROUND
In 1999, a jury found defendant guilty of three counts of murder with firearm use and two counts of robbery. (People v. Thompson (April 3, 2002, C034507) [nonpub. opn.].) The trial court sentenced defendant to serve three consecutive life sentences without possibility of parole and a consecutive term of eight years. Defendant appealed; this court affirmed the conviction and the life sentences, but ordered the prison terms for defendant’s robbery convictions stayed.
In June 2015, defendant filed a motion in the trial court to have his sentence recalled. (People v. Thompson, supra, C082417.) He argued he was eligible for relief under Penal Code section 1170, subd. (d)(2) because he was “ ‘physiologically and psychologically under 18 years of age’ ” at the time of his offense. The court denied the motion and defendant appealed. This court affirmed that decision in June 2017.
On August 14, 2017, defendant filed in the trial court a motion to vacate the orders of restitution. Defendant argued trial counsel in 1999 was ineffective for failing to challenge the restitution order because defendant was sentenced to serve life without the possibility of parole and because he was under 18 at the time he committed the crimes. The court denied the motion.
Defendant appeals from that order.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant filed a supplemental brief raising three claims of error. Defendant, however, appeals from a non appealable order and we will dismiss the appeal accordingly.
“ ‘[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun. [Citation.]’ [Citations.] There are few exceptions to the rule.” (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204.) No recognized exception applies here, as the trial court did not recall the sentence within 120 days of commitment of defendant to prison and defendant has not and cannot reasonably argue the restitution fine was not authorized or was the product of clerical error. (See id. at pp. 1205-1207.) Hence, the trial court was without jurisdiction to modify the restitution fine. (Id. at p. 1208.)
“ ‘ “It is settled that the right to appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.” [Citations.]’ [Citation.]” (Teal v. Superior Court (2014) 60 Cal.4th 595, 598.) “Stated simply, a criminal appeal by the defendant may be taken only from ‘a final judgment of conviction’ ([Pen. Code,] §§ 1237, subd. (a), 1466, subd. (2)(A)) or from ‘any order made after judgment, affecting the substantial rights’ of the party ([Pen. Code,] §§ 1237, subd. (b), 1466, subd. (2)(B)).” (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.) Here, appeal is not taken from the judgment of conviction. And, “[s]ince the trial court lacked jurisdiction to modify the restitution fine[], 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 [must] be dismissed. [Citation.]” (People v. Turrin, supra, 176 Cal.App.4th at p. 1208; accord, People v. Mendez (2012) 209 Cal.App.4th 32, 34.)
DISPOSITION
The appeal is dismissed.



/s/
HOCH, J.


We concur:


/s/
HULL, Acting P. J.


/s/
DUARTE, J.