People v. Morris CA2/3 ( 2014 )

Filed 6/27/14 P. v. Morris CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE, B253301
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA028244)
v.
JAMES MORRIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Lisa M.
Chung, Judge. Dismissed.
Jill Ishida, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant, James Morris, appeals from the trial court’s order
denying his motion to reduce a $10,000 restitution fine. However, since Morris was
sentenced in 2006, execution of his sentence had begun, the trial court had made no
judicial error and had not imposed an unauthorized sentence by ordering the fine, the trial
court was without jurisdiction to hear Morris’s motion. Accordingly, the ruling is not an
appealable order and we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On August 23, 2006, a jury found Morris guilty of one count of first degree
murder (Pen. Code, § 187, subd. (a))1 and three counts of attempted willful, deliberate
and premeditated murder (§§ 664, 187, subd. (a)). In addition, it was determined a
principal was armed with a firearm during the commission of each of the offenses
(§ 12022, subd. (a)(1)).
On September 21, 2006, Morris was sentenced to 25 years to life for the murder
conviction, plus one year for the allegation a principal was armed with a firearm, and a
consecutive term of life with the possibility of parole, plus one year for the armed
enhancement for one of the attempted murders. For the two remaining convictions of
attempted murder, the trial court imposed concurrent terms of life with the possibility of
parole, plus one year for the armed enhancements. In addition to the time in prison, the
trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)) and a suspended
$10,000 parole revocation restitution fine (§ 1202.45). Morris apparently did not object
to the imposition of the fines at sentencing.
On appeal, Morris claimed the trial court committed instructional error, he
received ineffective assistance of counsel and, when considered cumulatively, the errors
were prejudicial. This court rejected Morris’s arguments and the judgment was affirmed.
(People v. Morris (Feb. 21, 2008, B194027, B195547) [nonpub. opn.].) No mention was
made of the restitution fine.
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
On November 25, 2013, Morris, acting in propria persona, filed a motion in the
trial court for modification of the restitution fine imposed at sentencing. In essence,
Morris argued the fine was improper as he did not have the ability to pay it. That same
day, the trial court denied Morris’s motion. In its ruling, the trial court stated: “Review
of the court file shows petitioner essentially made a similar motion as to his restitution
fine on 4/14/09 and it was denied by this court. Petitioner received a life sentence on
9/21/06 on murder and attempted murder charges, and a $10,000 restitution fine was
imposed. Due to the seriousness of the charges and length of sentence, this court finds no
good cause to modify or strike said fine. These fines are mandatory and cannot be
waived absent compelling and extraordinary circumstances. A bare assertion of inability
to pay is insufficient.”
On December 10, 2013, Morris filed a timely notice of appeal from the trial
court’s order.
CONTENTIONS
After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record. By notice filed April 18, 2014, the clerk of this court advised Morris to submit
within 30 days any contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received to date.
REVIEW
In People v. Turrin (2009) 176 Cal. App. 4th 1200, “[d]efendant Adam James
Turrin appeal[ed] 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.” (Id. at p. 1203.) His primary argument for
modification of the fines was that “there was insufficient evidence . . . he had the ability
to pay the fines . . . .” (Ibid.) The appellate court concluded the trial court had not had
“jurisdiction to entertain the motion and that defendant’s appeal must be dismissed.”
(Ibid.)
3
Here, as in Turrin, Morris made his motion in the trial court, not a mere
10 months, but 7 years after judgment had been entered and while he was serving his
sentence in state prison. “ ‘Generally a trial court lacks jurisdiction to resentence a
criminal defendant after execution of sentence has begun. [Citation.]’ ” (People v.
Turrin, supra, 176 Cal.App.4th at p. 1204.) Exceptions occur if the trial court committed
“judicial error” or imposed an “unauthorized sentence,” neither of which occurred here.
(Id. at p. 1205.) “Since the trial court lacked jurisdiction to modify the restitution fine[],
its order denying [Morris’s] motion . . . is not an appealable . . . order. [Citation.]” (Id. at
p. 1208.)
We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal. 3d 436, 443.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
4