People v. Jaquez CA1/1 ( 2016 )

Filed 2/29/16 P. v. Jaquez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A146675
v.
ALBERT P. JAQUEZ, (San Francisco County
Super. Ct. Nos. 2172096, 19669001)
Defendant and Appellant.
This is an appeal pursuant to People v. Wende (1979) 25 Cal. 3d 436. Counsel asks
this court to independently review the record for any arguable issues. He affirms he has
reviewed the matter. He has also advised appellant of his conclusions and that he has
asked this court to engage in an independent review. Counsel told Jaquez by letter on
January 13, 2016, that he can also file a supplemental brief with the court within 30 days
if appellant wishes to present information on his appeal. We have received no
supplemental brief from appellant. We have reviewed the record in this matter and
conclude there is no reason to disturb the ruling of the trial court.
STATEMENT OF THE CASE AND FACTS
Appellant Jaquez and a codefendant, Eric Ardoin, were convicted of first degree
murder after a jury trial. The judgment was affirmed on appeal in 2011. (People v.
Ardoin (2011) 196 Cal. App. 4th 102 (Ardoin).)
On July 7, 2015, appellant filed a “Motion for the Disposition of Restitution and
Direct Fine” in the San Francisco Superior Court. He requests the court to convert the
restitution fine and victim restitution previously imposed when he was sentenced “into
days of imprisonment and run wholly concurrent with my confinement in the California
Department of Correction[s] and Rehabilitation beginning with confinement on the 11
day of July 2003.” Appellant professes to be indigent and is not able to pay the
restitution amount of $2,500 and the victim restitution amount of $3,115.55. He wants
the fines converted to days of imprisonment at a rate of $30 per day. He relies on
sections 1205, subdivision (a) and 1202.4, subdivision (c) of the Penal Code.
The trial court denied the motion in a written order. The decision filed on
September 14, 2015, indicated the court had no jurisdiction to modify a sentence already
executed. The court relied on People v. Thomas (1959) 52 Cal. 2d 521, 529–531
(Thomas).
Appellant filed a timely notice of appeal on October 27, 2015.
DISCUSSION
As a general rule, a trial court has no authority to modify a judgment once the
defendant has begun serving his sentence or the sentence is entered in the minutes of the
court. (Thomas, supra, 52 Cal.2d at pp. 529–531.) In this case, appellant was sentenced
in July 2008. At the time of sentence, the trial court imposed a restitution fine of $2,500
and victim restitution of $3,511.55. We reviewed his conviction and sentence on appeal,
issuing a decision in 2011; the ruling on appeal covered all issues arising from the
conviction presented in his brief. (Ardoin, supra, 196 Cal.App.4th at p. 139.) No
challenge was made by appellant to the restitution fine or amount of restitution imposed
by the trial court. Furthermore, appellant’s petition for review by the California Supreme
Court was denied on September 14, 2011. Since his conviction, appellant has been in the
custody of the Department of Corrections; the trial court was without jurisdiction once
Jaquez was remanded to the custody of the executive, i.e., the Department of Corrections.
The trial court below correctly ruled it was without jurisdiction to review the
monetary sanctions imposed on appellant as a result of his conviction. “Ordinarily no
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appeal lies from an order denying a motion to vacate a judgment of conviction on a
ground which could have been reviewed on appeal from the judgment. [Citations.] In
such a situation appeal from the judgment is an adequate remedy; allowance of an appeal
from the order denying the motion to vacate would virtually give defendant two appeals
from the same ruling and, since there is no time limit within which the motion may be
made, would in effect indefinitely extend the time for appeal from the judgment.”
(Thomas, supra, 52 Cal.2d at p. 527, italics added; People v. Garcia (1995)
32 Cal. App. 4th 1756, 1765.) Jurisdiction is lost once appellant began serving his
sentence. (People v. Hartsell (1973) 34 Cal. App. 3d 8, 13.)
Since the trial court lacked jurisdiction, appellant’s request to modify the fines
imposed to custodial time was unavailable.
DISPOSITION
Having noted no other issues presented in this appeal, the judgment is affirmed.
_________________________
DONDERO, J.
We concur:
_________________________
MARGULIES, J., Acting P.J.
_________________________
BANKE, J.
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