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The People v. Logan Sheldon Sharp

October 23, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LOGAN SHELDON SHARP, DEFENDANT AND APPELLANT.



(Super. Ct. No. S05CRF0355)

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

P. v. Sharp

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 February 2006, defendant Logan Sheldon Sharp pleaded no contest to first degree burglary. (Case No. SC05CRF0355 [the 2005 burglary case]; Pen. Code, §§ 459, 460, subd. (a).)*fn1 In December 2009, following several violations of probation, he was sentenced to state prison, ordered to make restitution to the victim (the Restitution Fund) in the amount of $360.92 (§ 1202.4, subd. (f)), and ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 restitution fine suspended unless parole is revoked (§ 1202.45).

At the same sentencing hearing, in a 2009 unrelated case, defendant was sentenced to state prison for second degree robbery (§§ 211, 212.5, subd. (c)), ordered to make restitution to the victim in the amount of $1,659, and ordered to pay stayed and unstayed restitution fines in the amount of $2,000. (Case No. S09CRF0042 [the 2009 robbery case].)

In a prior appeal, this court affirmed the judgment in both cases. (People v. Sharp (May 19, 2011, C063752) [nonpub. opn.].) We issued our remittitur to the trial court in August 2011.

In December 2011, defendant filed a superior court motion, in propria persona, in both cases entitled, "Motion for Restitution Hearing for Reconsideration of Ability to Pay and Constitutionality of Excessive Fines." The motion contains two handwritten references to a "fine" of "$4,219.92," which is the sum of the victim restitution and unstayed restitution fines imposed in both cases.

The trial court denied the motion, ruling: "The Court has read and considered defendant's motion for restitution hearing for reconsideration of ability to pay and constitutionality of excessive fines. [¶] COURT'S RULING: [¶] Court loses jurisdiction to modify the sentence 60 [sic] days after imposition of sentence. [¶] Time has expired. [¶] Motion is DENIED." (But see § 1170, subd. (d) [court lacks jurisdiction to reconsider where motion filed more than 120 days after sentencing].)

Defendant now appeals from this ruling in the 2005 burglary case but not in the 2009 robbery case.*fn2 He contends, and the Attorney General concedes, the trial court had continuing jurisdiction to modify the victim restitution order even though it had no jurisdiction to modify the restitution fine. (§ 1202.42, subds. (a), (d); People v. Turrin (2009) 176 Cal.App.4th 1200, 1207.) We agree with the parties.

The Attorney General claims the trial court's belief that it had lost jurisdiction to modify the victim restitution was harmless because the court was prohibited by statute from reducing victim restitution on the ground of inability to pay. Because we agree with the Attorney General on this point, we shall affirm the judgment.

DISCUSSION

The facts of defendant's offenses are not at issue in this appeal and ...


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