People v. Sanchez CA3

Filed 7/15/22 P. v. Sanchez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

THE PEOPLE, C094837

Plaintiff and Respondent, (Super. Ct. No. 09F3322)

v.

ALBERT CURTIS SANCHEZ,

Defendant and Appellant.

In 2012, a jury found defendant Albert Curtis Sanchez guilty of using a dangerous or deadly weapon to commit first degree murder during the commission of second degree robbery. The trial court sentenced defendant to life without the possibility of parole plus seven years. The court imposed $60 in court facilities assessment fees, $80 in court operations assessment fees, a $10,000 restitution fine, and a $10,000 suspended parole revocation restitution fine, and ordered defendant to pay $7,499.06 restitution, plus a 10 percent administration fee, to the California Victim Compensation Board. Defendant did not object to the fees and fines.

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In 2014, defendant appealed his conviction, arguing the trial court erred in excluding third party culpability evidence. (People v. Sanchez (Nov. 20, 2014, C071137) [nonpub. opn.], rehg. den. Dec. 12, 2014, review den. Feb. 11, 2015.) This court affirmed the judgment. (Ibid.) Fines and fees were not addressed. Our remittitur issued in February 2015. In June 2021, defendant, in propria persona, filed a motion requesting the trial court to waive or modify his “restitution fine,” an umbrella term for the sum of the restitution fine, parole revocation restitution fine, and victim’s restitution order. Defendant asserted the trial court impermissibly imposed the fines without determining whether he had the ability to pay. The trial court summarily denied the motion, finding defendant forfeited his claim by failing to object at the time of sentencing. In September 2021, defendant timely filed a notice of appeal. In March 2022, we granted defendant’s motion to incorporate by reference the record from his prior appeal, as the court reporter was unable to retrieve the record. DISCUSSION Appointed counsel for defendant filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief reprising his arguments that his “restitution fine” should be waived or modified. From what we can discern, defendant also argues counsel was ineffective in advising him about, and preserving his challenge to, the fines. Defendant, however, has appealed from a nonappealable order, as the trial court lacked jurisdiction to modify defendant’s sentence in his long-final judgment. “The general rule is that ‘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.] And, ‘[i]f 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