Filed 6/16/16 P. v. Esquibel CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E065140
v. (Super.Ct.No. RIF10002978)
PHILIP MARK ESQUIBEL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Dismissed.
Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Philip Mark Esquibel appeals from an order after
judgment—entered nearly five years ago—denying his motion to modify the restitution
fine in the amount of $10,000 and the victim restitution fine in the amount of $9,176.27
1
due to his inability to pay pursuant to Penal Code1 section 1202.4, subdivision (f). We
conclude the order is not appealable and dismiss the appeal.
I
PROCEDURAL BACKGROUND
On February 28, 2011, a jury found defendant guilty of second degree murder
(§ 187, subd. (a), count 1) and assault on a child under eight years of age causing death
(§ 273ab, count 2).
On May 13, 2011, defendant was sentenced to an indeterminate term of 25 years
to life on count 2, and a stayed 15-year-to-life indeterminate term on count 1. In
addition, among other fines and fees, the court imposed a $10,000 restitution fine
pursuant to section 1202.4, subdivision (b), and a victim restitution fine in the amount of
$9,176.27 pursuant to section 1202.4, subdivision (f). No objections were made at the
time the fines were imposed.
On July 31, 2015, the trial court summarily denied defendant’s ex parte motion to
modify the fines, noting the fines are mandatory.
On December 16, 2015, defendant filed another motion to modify his sentence
and to reduce or vacate the restitution fines due to his inability to pay pursuant to
section 1202.4, subdivision (f). Defendant argued the court imposing the fines failed to
take into consideration his ability to pay while incarcerated. The court again denied the
request, noting “defendant owes actual victim restitution.”
1 All future statutory references are to the Penal Code unless otherwise stated.
2
On January 4, 2016, defendant filed a timely notice of appeal.
II
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case, a summary of the facts and potential arguable issues, and requesting this court to
conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
We note the order denying the motion to modify the restitution fines is not
separately appealable. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1205
(Turrin).) In concluding that an order denying a motion to modify or reduce a restitution
fine was not appealable, the Turrin court reasoned that execution of the defendant’s
sentence had begun. (Id. at p. 1204.) That is the case here. The defendant in Turrin had
claimed there was insufficient evidence of his ability to pay the fines from his earnings
while incarcerated or from earnings from employment after release. The Court of Appeal
concluded the trial court had lost jurisdiction and had no statutory authority to recall the
sentence on its own motion since section 1170, subdivision (d), requires the trial court to
act within 120 days. The defendant did not seek correction of clerical error but instead
claimed judicial error. (Id. at pp. 1205-1206.)
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The Turrin court concluded: “A defendant may not contest the amount,
specificity, or propriety of an authorized order of a restitution fine for the first time on
appeal [citations] let alone in a motion to modify the same in the trial court after it has
lost jurisdiction. Defendant is contesting the amount and propriety of an authorized order
of a restitution fine. Section 1202.4, subdivision (b), authorized the amounts imposed
here. And defendant’s motion raised a factual question about his ability to pay, not a
pure question of law. The unauthorized-sentence exception to loss of jurisdiction does
not apply here.” (Turrin, supra, 176 Cal.App.4th at p. 1207; accord, People v. Mendez
(2012) 209 Cal.App.4th 32, 34, fn. 1.)
The Turrin court dismissed the appeal: “Section 1237, subdivision (b), provides
that a defendant may appeal ‘[f]rom any order made after judgment, affecting the
substantial rights of the party.’ Since the trial court lacked jurisdiction to modify the
restitution fines, its order denying defendant’s motion requesting the same did not affect
his substantial rights and is not an appealable postjudgment order. [Citation.] The appeal
should be dismissed. [Citation.]” (Turrin, supra, 176 Cal.App.4th at p. 1208; accord,
People v. Mendez (1999) 19 Cal.4th 1084, 1094.)
The same reasoning applies here. Defendant attempts to appeal from the court’s
denial of his postjudgment motion to modify the restitution fines filed many years after
he began serving his sentence. Under the reasoning of Turrin, supra, 175 Cal.App.4th
1200, which we adopt, the order is not appealable.
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Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
III
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
McKINSTER
J.
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