People v. Parga CA2/8 ( 2021 )

Filed 1/11/21 P. v. Parga CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B300912
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA051048)
v.
MICHAEL PARGA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Upinder S. Kalra, Judge. Dismissed.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
MEMORANDUM OPINION
In 2004, Michael Parga pleaded no contest to one count of
possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a)). The court sentenced him to 16 months in
prison. The court also imposed a $200 restitution fine (Pen.
Code, § 1202.4, subd. (b)) and a $200 parole revocation restitution
fine (Pen. Code, § 1202.45).
Fifteen years later, in 2019, Parga filed a motion, in pro.
per., to modify the restitution fines. Parga argued the trial court
erred by failing to state on the record its reasons for imposing the
fines, and by failing to consider his ability to pay or whether the
fines would impose a hardship on him. As a result, he
maintained, the court violated federal and state law, and the
imposition of the fines constituted an unauthorized sentence.
The trial court refused to modify Parga’s fines, explaining
that it lacked jurisdiction to recall his sentence. Alternatively,
the court found Parga waived the issues raised in his motion by
failing to make timely objections when the fines were imposed.
On appeal, Parga contends the restitution fines violate the
Eighth Amendment’s prohibition on excessive fines, as evidenced
by the fact that they remain partially unpaid. In response, the
Attorney General contends we should dismiss the appeal given
the trial court lacked jurisdiction to modify Parga’s sentence.
We agree with the Attorney General.
A trial court generally lacks jurisdiction to resentence a
defendant—which includes modifying any restitution fines—after
execution of the sentence has begun. (People v. Turrin (2009) 176
Cal.App.4th 1200, 1204 (Turrin).) There are, however, several
exceptions to this rule. A court may, for example, recall a
sentence on its own motion within 120 days of committing the
2
defendant to prison. (Ibid.; Pen. Code, § 1170, subd. (d).) A court
may also correct a clerical error or an unauthorized sentence at
any time. (Turrin, at p. 1205.)
Here, Parga filed his motion 15 years after he was
sentenced, which was well after the execution of his sentence had
begun and beyond the time the court was permitted to recall his
sentence on its own motion. Parga, moreover, does not claim the
fines were clerical errors, and he now concedes his sentence was
not unauthorized. (See People v. Avila (2009) 46 Cal.4th 680,
729) The trial court, therefore, lacked jurisdiction to grant
Parga’s request to modify his restitution fines.
Relying on Curtin v. Department of Motor Vehicles (1981)
123 Cal.App.3d 481, Parga insists the court had jurisdiction to
modify the fines under “general equitable principles to grant
relief . . . for a federal constitutional violation.” His reliance on
Curtin is misplaced. That case involved a petition for writ of
mandate under Code of Civil Procedure section 1094.5, which
sought to overturn an administrative decision by the Department
of Motor Vehicles. It has no application to a motion to modify a
criminal sentence.
Because the trial court lacked jurisdiction to modify Parga’s
restitution fines, its order denying his motion for such relief is
not appealable. (Turrin, supra, 176 Cal.App.4th at p. 1208.)
The proper disposition under such circumstances is to dismiss the
appeal. (Ibid.; People v. Mendez (2012) 209 Cal.App.4th 32, 33–
34.)
3
DISPOSITION
The appeal is dismissed.
BIGELOW, P. J.
We Concur:
STRATTON, J.
WILEY, J.
4