People v. Thao CA3

California Court of Appeal Apr 22, 2014 No. C075166Unpublished

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Holding. The court held that the trial court lacked jurisdiction to modify the defendant's restitution fine after the 120-day statutory period had expired and that the issue was barred by res judicata. Consequently, the order denying the motion was not appealable, requiring dismissal of the appeal.

Issues

Whether the trial court had jurisdiction to modify a restitution fine after the 120-day period under Penal Code section 1170, subdivision (d).
Whether the doctrine of res judicata bars the relitigation of a restitution fine that could have been raised in a prior appeal.
Whether an order denying a motion to modify a sentence is an appealable order when the trial court lacks jurisdiction to act.

Disposition. dismissed

Quotations verified verbatim against the opinion

“Once judgment is rendered, the sentencing court is without jurisdiction to vacate or modify the sentence except pursuant to the provisions of Penal Code section 1170, subdivision (d).”

“The doctrine of res judicata bars the relitigation of claims conclusively determined in a previous action.”

Filed 4/22/14 P. v. Thao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C075166

Plaintiff and Respondent, (Super. Ct. No. 08F03349)

LUE SENG THAO,

Defendant and Appellant.

Defendant Lue Seng Thao was sentenced on April 8, 2011, to 20 years to life after being convicted of, inter alia, attempted murder. The judgment was affirmed on appeal.1 Thereafter, defendant filed a motion in the trial court seeking a reduction in his restitution fine based on his alleged inability to pay the $5,000 fine. The trial court denied the motion and defendant appeals.

1 We incorporate by reference the record in that case. (People v. Thao (Jan. 24, 2013, C068080) [nonpub. opn.].)

Counsel for defendant filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief arguing the trial court should have granted his motion to reduce the restitution fine. We shall dismiss the appeal. Once judgment is rendered, the sentencing court is without jurisdiction to vacate or modify the sentence except pursuant to the provisions of Penal Code section 1170, subdivision (d).2 (See Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834- 1835.) The statutory exception allows a sentencing court on its own motion to recall and resentence, subject to the express limitation that the court loses such jurisdiction if it fails to recall a sentence within 120 days of the original commitment. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 464.) In this case, sentence was imposed on April 8, 2011, and defendant was committed to the custody of the Department of Corrections and Rehabilitation. The motion for modification was not filed until October 15, 2013, far more than 120 days thereafter. Consequently, the sentencing court was without jurisdiction to act upon a motion to modify defendant’s sentence by reducing his restitution fine. (See People v. DeVore (1990) 218 Cal.App.3d 1316, 1318-1319.) Furthermore, defendant previously appealed his conviction and sentence. This court affirmed the judgment in an unpublished opinion filed on January 24, 2013, the

People v. Thao CA3

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THE PEOPLE, C075166

LUE SENG THAO,

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