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People v. Turrin

August 20, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ADAM JAMES TURRIN, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Glenn County, Angus I. Saint-Evens, Judge. Dismissed. (Super. Ct. Nos. 06NCR03855, 07SCR03594, 07NCR04587).

The opinion of the court was delivered by: Sims, Acting P. J.

CERTIFIED FOR PUBLICATION

Defendant Adam James Turrin appeals from an order after judgment, denying his motion to modify restitution fines.

Defendant‟s motion was filed some 10 months after judgment was entered, when he was serving his sentence in state prison. We shall conclude that the trial court did not have jurisdiction to entertain the motion and that defendant‟s appeal must be dismissed.

On September 21, 2007, the trial court imposed an aggregate state prison sentence of three years and eight months for felony offenses occurring in 2006 and 2007 and ordered defendant to pay restitution fines (case Nos. 06NCR03855 ($600), 07SCR03594 ($200), and 07NCR04587 ($200)) and parole revocation restitution fines in the same amounts, suspended unless parole is revoked (Pen. Code, §§ 1202.4, subd. (b), 1202.45; undesignated section references are to the Penal Code). The minute order of September 21, 2007, remands defendant to the custody of the sheriff "forthwith" and orders that he "be delivered to the reception center designated by the director of the California Department of Corrections." The record does not reflect that defendant appealed from the sentence imposed.

Some 10 months later, on July 22, 2008, defendant, in pro per and serving his sentence at California State Prison (Solano), filed a motion to modify the restitution fines. Defendant argued that there was insufficient evidence that he had the ability to pay the fines from his earnings while incarcerated and that the trial court "could not have justifiably, albeit tacitly, assumed that a prisoner would be able to pay the fine from earnings from employment after his release."*fn1 In a letter attached to his motion, defendant asked that the fines be reduced to a combined total of $300, an amount he claims he is able to pay, so parole may be transferred to another state when he is released from state prison.

On July 25, 2008, the trial court reviewed defendant‟s motion for modification and denied the same without prejudice. Defendant, in pro per, filed a notice of appeal from the trial court‟s order of July 25, 2008, denying his motion to modify the sentence.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests 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 was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

We requested supplemental briefing on the following two issues: "1. Did the trial court have jurisdiction to rule on defendant‟s motion on the merits? [¶] 2. If not, should the appeal be dismissed?"

In response, defense appellate counsel submitted a supplemental letter brief. He later requested to withdraw his supplemental brief and to submit on his Wende brief. We granted his request and ordered defendant‟s supplemental letter brief stricken.

In their supplemental brief, the People argue that the trial court did not have jurisdiction to rule on defendant‟s motion on the merits and that the appeal should be dismissed. We agree.

Jurisdiction

"[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun. [Citations.]" (People v. Howard (1997) 16 Cal.4th 1081, 1089; People v. Karaman (1992) 4 Cal.4th 335, 344, 347, 350 [court retains power to modify a sentence "at any time prior to execution of the sentence"]; Dix v. Superior Court (1991) 53 Cal.3d 442, 455 (Dix); Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1835.) There are few exceptions to the rule.

Section 1170, subdivision (d), provides, in relevant part, that a trial court may recall the sentence on its own motion within 120 days after committing a defendant to prison. (Dix, supra, 53 Cal.3d at pp. 456, 464; People v. Alanis (2008) 158 Cal.App.4th 1467, 1475-1476.) Section 1170, subdivision (d), does not authorize a defendant to ...


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