Filed 8/27/20 P. v. Grant CA2/5
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION FIVE

 THE PEOPLE,                                                          B303037

           Plaintiff and Respondent,                                  (Los Angeles County
                                                                      Super. Ct. No. MA063572)
           v.

 MICHAEL DAVID GRANT,

           Defendant and Appellant.

     APPEAL from an order of the Superior Court of Los
Angeles County, Shannon Knight, Judge. Dismissed.

     Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Nancy Loo Ladner,
Deputy Attorneys General for Plaintiff and Respondent.
                  __________________________
                         INTRODUCTION
       Defendant appeals the trial court’s denial of his motion to
modify his sentence some five years after its imposition. His
motion was directed to the court’s $5,000 restitution fine and
$140 in assessments. Defendant contends that the trial court’s
imposition of the fine and assessments without holding an
ability-to-pay hearing violated his constitutional right to due
process under People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas). Because the trial court lacked jurisdiction to grant the
relief requested in defendant’s motion, we dismiss the appeal.
         FACTS AND PROCEDURAL BACKGROUND
       In 2014, defendant was convicted of two counts of second
degree robbery. In 2015, the trial court sentenced defendant to
13 years in prison and ordered him to pay $140 in court
assessments, a $5,000 restitution fine pursuant to Penal Code
section 1202.4, subdivision (b), and a $5,000 parole restitution
fine.1 The parole restitution fine was stayed. In August 2015,
shortly after he filed his Notice of Appeal of the underlying
conviction, defendant asked the trial court to reduce the
restitution fine, which at $5,000 was within the $200 to $10,000
statutory range. On August 14, 2015 the trial court denied the
request. The court ruled: “imposition of the victim restitution
fine, ranging between $200 and $10,000 is mandatory, was
lawfully imposed, and cannot be waived absent compelling and
extraordinary circumstances. The court finds defendant has not
established a prima facie showing for modification. Inability to
pay does not alone, amount to compelling and extraordinary

1      The assessments consisted of an $80 court security
assessment pursuant to Penal Code section 1465.8, subdivision
(a)(1), and a $60 criminal conviction assessment pursuant to
Government Code section 70373.
       All subsequent statutory references are to the Penal Code.

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circumstances for modifying or waiving the mandatory fine.” The
court also found that defendant failed to “show the existence of
any issue with a reasonable potential for success in support of his
claims of ineffective assistance of trial [counsel].”
       In 2017, this division affirmed defendant’s convictions in an
unpublished opinion. (People v. Grant (Jan. 9, 2017, B265788)
2017 WL 76959.) In that appeal, defendant did not challenge,
and we did not address, the restitution fine or assessments.
Later that year, the California Supreme Court denied defendant’s
petition for review (case No. S239859), and the remittitur was
issued.
       In January 2019, long after defendant’s appeal was final,
Division Seven of this court issued its opinion in Dueñas, which
held that, even though the restitution fine was mandatory under
the statute, “the court must stay the execution of the fine until
and unless the People demonstrate that the defendant has the
ability to pay the fine.” (Dueñas, supra, 30 Cal.App.5th at
p. 1172.)
       On October 15, 2019, defendant filed in the trial court a pro
per petition to modify the restitution fine. Defendant argued that
the fine imposed violated due process because the trial court did
not conduct an “ability to pay” hearing pursuant to Dueñas. On
November 7, 2019, the trial court denied the motion without
explanation.
       Defendant appeals.2




2     It is unclear whether defendant’s appeal also encompasses
the $140 in assessments. The notice of appeal only refers to the
restitution fine, as does the trial court’s order. We treat the
appeal as only from the denial to modify the restitution fine, but
our analysis would be the same for the assessments.

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                           DISCUSSION
       Defendant contends the trial court erred in denying his
2019 motion to modify the restitution fine, arguing that the
imposition of the $5,000 restitution fine and $140 in assessments
violated due process under Dueñas. The People respond that the
appeal must be dismissed because the trial court lacked
jurisdiction to entertain defendant’s postjudgment motion.
       We begin our analysis with the observation that, generally,
“once a judgment is rendered and execution of the sentence has
begun, the trial court does not have jurisdiction to vacate or
modify the sentence. [Citations.] If the trial court does not have
jurisdiction to rule on a motion to vacate or modify a sentence, an
order denying such a motion is nonappealable, and any appeal
from such an order must be dismissed.” (People v. Torres (2020)
44 Cal.App.5th 1081, 1084 (Torres); People v. Turrin (2009)
176 Cal.App.4th 1200, 1207-1208 [applying the general rule to a
request to modify a restitution fine].) It is undisputed that the
execution of defendant’s sentence began before he filed the
October 2019 motion.
       The timing of defendant’s motion meant that trial court
lacked jurisdiction to entertain the motion unless an exception
applied. On appeal, defendant points to a single exception — the
trial court had jurisdiction to hear the motion under Penal Code
section 1237.2.3
       Section 1237.2 implements the policy that appeals should
be avoided where the sole ground for relief is the amount of fees
and other costs imposed on the defendant. (People v. Jenkins
(2019) 40 Cal.App.5th 30, 38.) The statute provides: “An appeal


3     Defendant does not rely on any of the other exceptions
mentioned in Torres (Torres, supra, 44 Cal.App.5th at p. 1085),
nor do we address them.

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may not be taken by the defendant from a judgment of conviction
on the ground of an error in the imposition or calculation of fines,
penalty assessments, surcharges, fees, or costs unless the
defendant first presents the claim in the trial court at the time of
sentencing, or if the error is not discovered until after sentencing,
the defendant first makes a motion for correction in the trial
court, which may be made informally in writing. The trial court
retains jurisdiction after a notice of appeal has been filed to
correct any error in the imposition or calculation of fines, penalty
assessments, surcharges, fees, or costs upon the defendant’s
request for correction. This section only applies in cases where
the erroneous imposition or calculation of fines, penalty
assessments, surcharges, fees, or costs are the sole issue on
appeal.” (§ 1273.2 (italics added).)
       Earlier this year, our colleagues in Division One expressly
rejected the very argument that defendant now makes. In Torres,
the court held that the second sentence, which creates the
exception for trial court retention of jurisdiction, does not apply
where the defendant makes a post-appeal Dueñas challenge of his
restitution fine. (Torres, supra, 44 Cal.App.5th at p. 1088.) That
is exactly what defendant did here. In dismissing the defendant’s
appeal, the Torres court relied in part on the legislative history of
section 1273.2. The second sentence of the statute was proposed
by the California Public Defenders Association to address its
concern that “a defendant who belatedly discovers an erroneous
fine could be left without a remedy if he or she is precluded under
the proposed law from challenging the fine on appeal (for failing
to raise it in the trial court) and precluded from correcting the
error in the trial court because that court had lost jurisdiction
over the case.” (Id. at p. 1087.)
       The Torres court explained: “The legislative history thus
reveals that a primary purpose of section 1237.2 is to encourage

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and facilitate the prompt and efficient resolution in the trial
court of challenges to fines, assessments, and fees that would
otherwise be asserted on direct appeal; and the statute’s second
sentence furthers that purpose by giving trial courts the power to
resolve such challenges notwithstanding the pending appeal.
That purpose is not served by extending the trial court’s
jurisdiction to motions made after the conclusion of the direct
appeal.” (Torres, supra, 44 Cal.App.5th at p. 1087.)
      We agree with Torres, and hold that section 1237.2 does not
confer jurisdiction upon the trial court where, as here, a
defendant’s direct appeal is final.
      Defendant claims that he may raise the Dueñas issue at
any time because that part of his sentence is “unauthorized.” His
argument, virtually devoid of authority, is limited to:
“Furthermore, appellant argues that this appeal is appealable
because imposition of fines without an ability to pay finding is an
unauthorized sentence because it violates due process under the
state and federal constitutions. (People v. Superior Court
(Kaulick) (2013) 215 Cal.App.4th 1279, 1295, fn. 15.) (Kaulick).”4
      Kaulick addresses neither Dueñas nor unauthorized
sentences. Its reference to due process was limited to a party’s
right to notice of a hearing. (Kaulick, supra, 215 Cal.App.4th at

4      The only part of Kaulick that defendant cites in his opening
brief is to footnote 15 (repeated in his Reply Brief but without
reference to the footnote). The entirety of the Kaulick footnote is:
“As noted, we will conclude that the sentence modification in this
case was unlawful. In any event, a claim of an unlawful sentence
is appealable, even though the court may ultimately conclude
that the sentence was not unlawful. (6 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Criminal Appeal, § 86, p. 361.)”
(Kaulick, supra, at p. 1295, fn. 15.) This passage deals with the
People’s right to appeal; it nowhere mentions Dueñas nor the
issues presented in the current appeal.

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pp. 1297-1298.) The proceeding before the court in Kaulick was a
petition for resentencing in which a defendant asked the trial
court to strike a third strike under Proposition 36, the Three
Strikes Reform Act of 2012. The principal issues on appeal were
the People’s rights to notice of the hearing on the petition and to
seek appellate review of the ruling. The appellate court held,
succinctly, “The trial court should not have granted Kaulick’s
petition for resentencing under the Act without insuring that the
District Attorney had received notice and an opportunity to be
heard on the issue of dangerousness.” (Id. at p. 1285.) The court
issued a writ of mandate vacating the trial court’s resentencing
order. (Id. at pp. 1295-1296.)
       Because the trial court lacked jurisdiction to hear
defendant’s petition, the order denying the petition is a
nonappealable order, and the appeal must be dismissed.
                           DISPOSITION
       The appeal is dismissed.



                                          RUBIN, P. J.
WE CONCUR:




                  MOOR, J.




                  KIM, J.




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