Filed 3/20/18 P. v. Stayer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
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THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY THOMAS STAYER,

Defendant and Appellant.
C085365

(Super. Ct. No. 04F8744)




Defendant Timothy Thomas Stayer purports to appeal from an order denying his postjudgment motion to modify his sentence by converting the $10,000 restitution fine to a term of imprisonment at the rate of $30 per day, to be served concurrent with the term of imprisonment imposed for the conviction for which the restitution fine was imposed.
Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. In a supplemental brief, defendant contends that he lacks ability to pay the restitution fine and that trial counsel failed to provide competent assistance of counsel in that counsel failed to object to imposition of the restitution fine. We shall dismiss the appeal as taken from a nonappealable order.
“ ‘[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 that 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.



RAYE , P. J.



We concur:



HULL , J.



MURRAY , J.