People v. Gonzalez CA6

Filed 4/28/22 P. v. Gonzalez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H047400 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS981989)

v.

JUAN MANUEL GONZALEZ,

Defendant and Appellant.

In 1999, defendant Juan Manuel Gonzalez was convicted by jury trial of second degree murder (Pen. Code, § 187)1 and attempted murder (§§ 664, 187). The jury found true gang enhancements (§ 186.22, subd. (b)(1)) for both counts, personal and intentional discharge of a firearm (§ 12022.53, subd. (c)) for the murder count, and personal and intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)) for the attempted murder count. Defendant was sentenced to an aggregate term of 67 years to life. The court also imposed a restitution fund fine of $10,000. This court affirmed the judgment on appeal. (People v. Gonzalez (Apr. 5, 2001, H020233) [nonpub. opn.].) In 2019, proceeding in pro per, defendant filed a postjudgment motion for “sentence modification” due to his “inability to pay.” Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argued that the prosecution failed to present evidence that he “had the ability to pay any fine, fee, or assessment, and the trial court

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

made no finding that he had the ability to pay.” Thus, he argued that “those fines and fees must be stayed.” The trial court summarily denied the motion. Defendant now appeals from the denial of his motion. On appeal, defendant, now represented by appointed counsel, argues: (1) section 1201.5 conferred jurisdiction on the trial court to consider his postjudgment motion; (2) the order is appealable under section 1237, subdivision (b), and section 1237.2; (3) the legal doctrines that would normally bar a postjudgment motion do not apply here; and (4) imposition of the $10,000 restitution fine without determining that defendant had an ability to pay it violated his due process and equal protection rights, and constituted an excessive fine. The Attorney General responds that the appeal must be dismissed because the trial court lacked jurisdiction to entertain defendant’s postjudgment motion. We agree. “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] (Turrin).) “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, at p. 1085.)