People v. Griffith CA6

Filed 8/25/21 P. v. Griffith CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047528 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS052430A)

v.

CHRISTOPHER L. GRIFFITH,

Defendant and Appellant.

In March 2008, defendant was convicted by jury trial of voluntary manslaughter (Pen. Code, § 193, subd. (a)).1 The jury found true an allegation that defendant had personally used a firearm in committing that offense (§ 12022.53, subd. (d)), and defendant admitted a prior prison term allegation (§ 667.5, subd. (b)). The trial court sentenced defendant to an aggregate prison term of 21 years, and imposed a $10,000 restitution fine. (People v. Griffith (May 25, 2010 H032926) [nonpub. opn.].) Defendant appealed, raising issues about his trial but not his sentence. This court affirmed. (Id. at pp. 1-2, 68.) In May 2019, defendant, proceeding pro per, filed a “petition for recall and vacate of sentence” purportedly pursuant to section 1237.2. In August 2019, defendant, again pro per, filed a motion for modification of sentence, purportedly pursuant to section 1202.4, subdivision (f)(1). The gravamen of both filings was that the trial court should

1 All further statutory references are to the Penal Code unless otherwise indicated.

reduce the $10,000 restitution fine due to an inability to pay. The court issued an order denying the motions. Defendant, now represented by appointed counsel, appeals. He argues that section 1237.2 grants the trial court jurisdiction to consider his request that the restitution fine be reconsidered in light of his inability to pay. The Attorney General responds that the appeal must be dismissed because the trial court lacked jurisdiction to consider defendant’s postjudgment motions. We agree and dismiss the appeal. I. DISCUSSION “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.]” (People v. Torres (2020) 44 Cal.App.5th 1081, 1084 (Torres); People v. Turrin (2009) 176 Cal.App.4th 1200, 1207-1208 [applying the foregoing general rule to a request to modify a restitution fine].) “There are exceptions to the general rule. [For example, a] court may recall a sentence and resentence a defendant under certain circumstances within 120 days of the defendant’s custody commitment. (§ 1170, subd. (d)(1).) Resentencing is also authorized under the circumstances specified in sections 1170.126, 1170.18, and 1170.95. Courts may correct computational and clerical errors at any time. [Citation.] Unauthorized sentences and ‘ “ ‘obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings’ ” ’ are correctable at any time. [Citations.]” (Torres, supra, at p. 1085.) Here, it is undisputed that the execution of defendant’s sentence began before he filed the motion that is the subject of this appeal. Accordingly, the trial court lacked jurisdiction to grant that motion unless an exception to the general rule applies. Defendant, however, does not argue that any of the established exceptions to that general rule of jurisdiction are applicable. Rather, defendant argues that section 1237.2, which took effect on January 1, 2016 (Stats. 2015, ch. 194, § 3), expanded superior court