Filed 6/9/22 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR LOPEZ,

Defendant and Appellant.

F083270

(Super. Ct. No. 1064916)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Ricardo

Cordova, Judge.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William 

K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and Snauffer, J.
2.

Defendant Victor Lopez was convicted of first degree murder in 2007. He was 

sentenced to 25 years to life in prison and ordered to pay $5,187.44 in direct victim 

restitution and a $10,000 restitution fine. In 2021, approximately 14 years after his 

conviction, he filed a motion, in propria persona, “to strike or modify court ordered 

restitution, fees, or fines.” (Capitalization omitted.) The trial court understood the 

motion to challenge imposition of defendant’s direct victim restitution order and denied 

defendant’s motion for multiple reasons, including that it lacked the jurisdiction to hear 

the motion. Defendant contends the trial court erred in failing to construe his motion as a 

challenge to the restitution fine (rather than merely direct victim restitution) and failing to 

reach the merits of that portion of his motion. The People disagree, arguing that the trial 

court lacked jurisdiction to hear defendant’s motion, even insofar as it challenged 

restitution fines. We dismiss defendant’s appeal.

PROCEDURAL SUMMARY

On February 8, 2007, the Stanislaus County District Attorney filed an amended 

information charging defendant with the premeditated murder of Eric Adorno (Pen. 

Code,1 § 187, subd. (a); count 1). The amended information further alleged that 

defendant committed the offense for the benefit of a criminal street gang (§ 186.22, 

subd. (b)(1)) and personally discharged a firearm causing death (§ 12022.53, subd. (d)).

On June 7, 2007, the jury found defendant guilty on count 1 and found true that 

defendant committed the offense for the benefit of a criminal street gang. The jury found 

that defendant did not personally discharge a firearm causing death.

On July 10, 2007, the trial court sentenced defendant to 25 years to life in prison, 

and imposed $5,187.44 in direct victim restitution (§ 1202.4, subd. (f)) and a $10,000 

restitution fine (§ 1202.4, subd. (b)).

1 All further statutory references are to the Penal Code.
3.

On November 24, 2008, this court conditionally reversed the judgment with 

directions to make additional findings. (People v. Lopez (2008) 168 Cal.App.4th 801, 

816.) On April 27, 2009, the trial court made additional findings and reinstated the 

judgment.

On August 17, 2021, defendant filed a “motion to strike or modify court ordered 

restitution, fees, or fines.” (Capitalization omitted.) On the same date, the trial court 

denied defendant’s motion in a written order.

DISCUSSION2

Defendant’s motion broadly challenged imposition of “fees, fines, and restitution.” 

It also requested that the trial court strike or modify “his [r]estitution in the amount of 

$10,000.” Defendant acknowledges that his motion was “not a model of clarity because 

it appears to be taken from a boilerplate, omnibus-type pleading attacking fines and fees,” 

but nevertheless argues that the trial court erred in failing to construe his motion as a 

challenge to the $10,000 restitution fine, and not just the direct victim restitution, which 

was imposed in the amount of $5,187.44. He contends that the matter must be remanded 

for the trial court to consider whether it should modify the restitution fine. The People 

respond that the trial court lacked jurisdiction to hear defendant’s motion insofar as it 

challenged or sought modification of the restitution fine, and we must therefore dismiss 

defendant’s appeal.3 We agree with the People.

In People v. Turrin (2009) 176 Cal.App.4th 1200 (Turrin), the Court of Appeal 

considered whether the trial court had jurisdiction to entertain a motion to modify 

restitution fines (imposed in three cases) made after the time to appeal from the 

2 Because defendant raises only legal issues on appeal, a factual summary is 

omitted.

3 Defendant does not challenge the trial court’s determination that it was without 

jurisdiction to modify the direct victim restitution order. The trial court correctly noted 

that a trial court lacks jurisdiction to modify a restitution order at a defendant’s request 

after execution of the sentence. (People v. Littlefield (2018) 24 Cal.App.5th 1086.) 
4.

judgments had passed and after the defendant had commenced serving his aggregate 

prison term. (Id. at p. 1203.) The trial court denied the motion without prejudice, and the 

defendant appealed. The Court of Appeal dismissed the appeal. (Id. at p. 1208.) The 

court noted that generally a trial court lacks jurisdiction to resentence a criminal 

defendant after execution of the sentence has begun. (Id. at p. 1204.) There are few 

exceptions, and none applied. (Id. at pp. 1204–1206.) Specifically, the trial court had not 

been asked to correct a “clerical” error, nor was the sentence “unauthorized” and 

therefore correctable at any time. (Id. at p. 1205.) As the appellate court explained, 

“ ‘[t]he unauthorized sentence exception is “a narrow exception” to the waiver doctrine 

that normally applies where the sentence “could not lawfully be imposed under any 

circumstance in the particular case,” for example, “where the court violates mandatory 

provisions governing the length of confinement.” [Citations.] The class of nonwaivable 

claims includes “obvious legal errors at sentencing that are correctable without referring 

to factual findings in the record or remanding for further findings.” ’ ” (Ibid.) Whether 

the restitution fine could be lawfully imposed, of course, involved factual issues and did 

not present a “pure question of law.” (Turrin, at p. 1207.) Accordingly, there was no 

basis upon which the trial court could have acted.

The trial court’s order denying relief in Turrin therefore “did not affect [the 

defendant’s] substantial rights and [was] not an appealable postjudgment order.” (Turrin, 

supra, 176 Cal.App.4th at p. 1208.) As a consequence, no right to appeal was granted 

pursuant to section 1237, subdivision (b) or any other statute. (§ 1237, subd. (b) 

[granting a right to appeal “[f]rom any order made after judgment, affecting the 

substantial rights of the party”]); Turrin, at p. 1208.) The Court of Appeal therefore 

lacked appellate jurisdiction and was required to dismiss the appeal. (Turrin, at p. 1208; 

accord, People v. Jinkins (2020) 58 Cal.App.5th 707, 712–713 [no appellate jurisdiction 

over defendant’s appeal from an order denying a motion to reduce restitution fine made 

after he commenced serving prison sentence].) 
5.

The same result as to defendant’s appeal of the order denying his motion is 

indicated here. The trial court was without jurisdiction to hear defendant’s motion even 

if it should have been construed as a motion to strike or modify the restitution fine. 

Because the trial court lacked jurisdiction to hear a motion to strike or modify a 

restitution fine, even assuming the trial court should have construed defendant’s motion 

as including a request to strike or modify the restitution fine, such a failure did not affect 

defendant’s substantial rights. (§ 1237, subd. (b).) For that reason, we dismiss 

defendant’s appeal.

DISPOSITION

Defendant’s appeal is dismissed.