Filed 10/16/20 P. v. Sosa CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B300698
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA358526)
v.
RODRIGO SOSA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles Count, Jose I. Sandoval, Judge. Dismissed.
Deborah L. Hawkins, 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, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant Rodrigo Sosa appeals from the
trial court’s order denying his motion for relief from a fine and
assessments imposed as part of his sentence. The Attorney
General argues we should dismiss defendant’s appeal as having
been taken from a nonappealable order. We dismiss defendant’s
appeal.
II. BACKGROUND
In 2011, a jury convicted defendant of second degree
murder (Pen. Code, § 187, subd. (a)1) and found true the
allegation that he personally used a deadly and dangerous
weapon (§ 12022, subd. (b)(1)). The trial court sentenced
defendant to 16 years to life in state prison and imposed a $200
restitution fine (§ 1202.4, subd. (b)(1)), a $30 court operations
assessment (§ 1465.8), and a $30 court facilities assessment (Gov.
Code, § 70373).
On January 9, 2012, in Case No. B231101, a prior panel of
this Division affirmed defendant’s conviction as modified.2 On
March 14, 2012, in Case No. S199973, the California Supreme
Court denied defendant’s petition for review. The remittitur
issued to the Superior Court on March 21, 2012.
1 All further statutory citations are to the Penal Code unless
otherwise noted.
2 The panel modified the $30 court operations assessment to
$40.
2
On June 6, 2019, citing People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), defendant filed a motion seeking
relief from the fine and assessments imposed as part of his
sentence. On June 12, 2019, the trial court summarily denied
defendant’s motion.
III. DISCUSSION
Defendant contends the trial court erred in denying his
motion for relief from the fine and assessments without holding a
hearing to determine his ability to pay. Citing People v. Torres
(2020) 44 Cal.App.5th 1081 (Torres), the Attorney General argues
that we should dismiss defendant’s appeal because the trial court
was without jurisdiction to grant the relief defendant sought and
defendant’s appeal thus is from a nonappealable order. We agree
with the Attorney General.
“Generally, once a judgment is rendered and execution of
the sentence has begun, the trial court does not have jurisdiction
to vacate or modify the sentence. [Citations.][3] If the trial court
does not have jurisdiction to rule on a motion to vacate or modify
a sentence, an order denying such a motion is nonappealable, and
any appeal from such an order must be dismissed. [Citations.]”
(Torres, supra, 44 Cal.App.5th at p. 1084.)
3 The court discussed exceptions to the general rule that
were not applicable to the case before it (Torres, supra, 44
Cal.App.5th at p. 1085) and that are not applicable to the case
before us.
3
In Torres, supra, 44 Cal.App.5th 1081, the Court of Appeal
considered a trial court’s jurisdiction under section 1237.24 to
hear a Dueñas motion after the defendant’s direct appeal has
concluded. (Torres, supra, 44 Cal.App.5th at p. 1083.) The court
held, “[T]he jurisdiction created by [section 1237.2] does not
extend beyond the pendency of a defendant’s direct appeal from
his or her judgment of conviction. Because Torres’s motion to
correct his sentence was made after his direct appeal had
concluded, section 1237.2 did not give the trial court jurisdiction
to grant the motion. Because no other jurisdictional basis
applies, the order denying the motion was nonappealable, and
the appeal must be dismissed.” (Id. at p. 1088.)
Defendant contends the Attorney General’s reliance on
Torres, supra, 44 Cal.App.5th 1081 is misplaced. He appears to
argue that the trial court had jurisdiction to hear his motion
because his claim is grounded in his federal constitutional rights
to due process and to be free from cruel and unusual punishment.
4 Section 1237.2 provides:
“An appeal may not be taken by the defendant from a
judgment of conviction on the ground of an error in the
imposition or calculation of fines, penalty assessments,
surcharges, fees, or costs unless the defendant first presents the
claim in the trial court at the time of sentencing, or if the error is
not discovered until after sentencing, the defendant first makes a
motion for correction in the trial court, which may be made
informally in writing. The trial court retains jurisdiction after a
notice of appeal has been filed to correct any error in the
imposition or calculation of fines, penalty assessments,
surcharges, fees, or costs upon the defendant’s request for
correction. This section only applies in cases where the erroneous
imposition or calculation of fines, penalty assessments,
surcharges, fees, or costs are the sole issue on appeal.”
4
Defendant does not explain how a claimed violation of these
constitutional rights conferred jurisdiction on the trial court to
consider his motion after his conviction became final. (See
Torres, supra, 44 Cal.App.5th at p. 1088 [after rejecting
jurisdiction under section 1273.2, the court concluded there was
no other applicable jurisdictional basis].) We therefore reject his
argument.
IV. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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