Filed 8/28/20 P. v. Tarkington 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

A NTHONY L. TARKINGTON,

Defendant and Appellant. B298503

(Los Angeles County

Super. Ct. No. BA134487)

APPEAL from a n order of the Superior Court of Los

Angeles County, Robert J. Perry , Judge. Appeal dismissed

.

Heather J. Manolakas , 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 , Assistant

Attorney s General, David E. Madeo and Stacey S. Schwartz

, Deputy Attorn eys General, for Plaintiff and Respondent.

________________________2 A jury convicted defendant and appellant Anthony L.

Tarkington of second degree murder. At sentencing, the trial

court imposed a $10,000 restitution fine. Over 20 years later,

citing Pe ople v. Dueñas (2019) 30 Cal.App.5th 1157 ( Dueñas )

, Tarkington filed a motion in the trial court cha llenging

imposition of that fine on constitutional grounds . The trial court

treated the motion as a petition for writ of habeas corpus, and

denied it. Tarkington appeals the court’s order. Because the

order is nonappealable, we dismiss the appeal.

PROCEDURAL BACKGROUND

In 1997, a jury convicted Tarkington of second degree

murder, with a deadly weapon enhancement. 1 (Pen . Code,

§§ 187, subd. (a); 2 12022, subd. (b) .) The trial court sentenced

Tarkington to 46 years to life in prison pursuant to the Three

Strikes l aw. (§ 667, subds. (b)

– (i).) Without objection, the court

also imposed a $10,000 restitution fine , observing that

Tarkington would “have ample opportunity to earn money for the

payment of that fine.” (§ 1202.4.) Tarkington appealed , but did

not c hallenge imposition of the restitution fine or assert that he

was unable to pay it. We affirmed the judgment. ( People v.

Tarkington (Aug. 19, 1998, B117520) [ nonpub. opn. ] .) The

remittitur issued on October 23, 1998.

1 We take judicial notice of the record in Tarkington’s case,

No. B1175 2 0, including our opinion on his direct appeal. (Evid.

Code, §§ 452, subd. (d), 459.) Because the evidence regarding the

murder is not relevant to the issue raised on appeal, we do not

discuss it here.

2 All further undesignated statutory references ar e to the

Penal Code.3 In 2019, Dueñas held that due process require s that a trial

court stay execution of a section 1202.4 restitution fine unless

and until the People demonstrate a defendant has the ability to

pay it. ( Dueñas

, supra

, 30 Cal.App.5th at p p

. 1164, 1169

– 1172.)

Thereafter , Tarkington, acting in propria persona, filed in the

trial court a document entitled “Motion for restitution hearing for

reconsideration of ability to pay and constitutionality of excessive

fines.” R elying on Dueñas

, Tarkington argued that the trial

cour t’s imposition of the restitution fine, without consideration of

his ability to pay, violated the Eighth and Fourteenth

Amendments to the federal constitution. He requested that the

restitution fine be reduced to $200.

The trial court treated the motion as a petition for writ of

habeas corpus, and denied it. It reasoned that the imposition of

the fine was not an abuse of discretion; a defendant’s prison

wages may be considered when determining ability to pay ;

Tarkington presented no evidence at the origi nal sentencing

hearing regarding his alleged inability to pay; and t he issue was

forfeited

. Tarkington filed a timely notice of appeal.

DISCUSSION

Tarkington argues that the imposition of the restitution

fine, absent a determination of his ability to pay, violated due

process , entitling him to resentencing and an ability

- to

- pay

hearing

. 3 He contends that the trial court’s order is appealable as

3 As Tarkington recognizes, our Supreme Court is currently

considering whether a court must evaluate a defendant’s ability

to pay before imposing or executing fines, fees, and assessments.

( People v. Kopp (2019) 38 Cal.App.5th 47, re view granted Nov. 13,

2019, S257844.)4

an order after judgment a ffecting his substantial rights (§ 1237,

subd. (b)) and because the res titution fine amounted to an

unauthorized sentence. The People contend that the issue has

been forfeited because Tarkington failed to raise his inability to

pay at sentencing; Dueñas does not apply retroactively; and the

restitution fine was not unconstitutionally excessive.

Cont rary to Tarkington’s contention , the order in question

is not appealable. The trial court treated the motion as a petition

for wr it of habeas corpus. It is well settled that t he denial of such

a petition is not appealab le. ( In re Clark (1993) 5 Cal.4th 750,

767, fn. 7; People v. Gallardo (2000) 77 Cal.App.4th 971, 986 ;

People v. Ryan (1953) 118 Cal.App.2d 144, 149 .)

Nor is the court’s order appealable if we treat Tarkington’s

request as a motion, rather than as a writ, because the trial court

lacked jurisdiction to consider such a motion. Generally, once a

judgment is rendered and execution of the defendant’s sentence

has begun, the trial court lacks jurisdiction to vacate or modify

the sentence

. ( People v. Karaman (1992) 4 Cal.4th 335, 344;

People v. Torres (2020) 44 Cal.App.5th 1081, 1084 ( Torres ); People

v. Hernandez ( 2019) 34 Cal.App.5th 323, 326; People v. Turrin

(2009) 176 Cal.App.4th 1200, 1204 ( Turrin ) .) “ If the trial court

does not have ju risdiction 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

, at p. 108 4 ; see also People v. Fuimaono (2019) 32

Cal.App.5th 132, 135; People v. Hernandez

, at p. 327 ; People v.

Littlefield (2018) 24 Cal.App.5th 1086, 1092 [where trial court

lacked jurisdiction over motion, denial of motion did not affect

defendant’s substantial rights under § 1237, subd. (b ) and

dismissal of appeal was required]

. )5 Exceptions to this rule exist, but none appl y here. (See

Torres

, supra

, 44 Cal.App.5th at p. 1085 ; Turrin

, supra

, 176

Cal.App.4th at pp. 1204

– 1205

, 1207

– 1208 .) For example, a court

may recall a sentence and resentence a defendant under certain

circumstances within 1 20 days of his or her custody commitment

(§ 1170, subd. (d)(1); Torres

, at p. 1085; Turrin

, at p. 1204), but

the 120

- day period has long since expired in Tarkington’s case.

A court m ay also correct clerical or c omputational errors at any

time ( Torres

, at p. 1085; Turrin

, at p. 1205), but the relief

Tarkington sought did not constitute a mere clerical or

computational error.

An unauthorized sentence may also be corrected at any

time . ( Torres

, supra

, 44 Cal.App.5th at p. 1085; Turrin

, supra

, 176 Cal.App.4th at p. 1205.) But the $10,000 restitution fine

here did not amount to an unauthorized sentence. The

unauthorized sentence exception is “narrow” and applies only

where the sentence “ ‘ could not lawfully be imposed under any

circumstance in the particular case. ’ ” ( In re G.C. (2020 ) 8

Cal.5th 1119, 1130; People v. Scott (1994) 9 Cal.4th 331, 354;

People v. Jordan (2018) 21 Cal.App.5th 1136, 1145 ; Turrin

, at

p. 1205 .) The appellate court may intervene in the first instance

because such errors “ ‘present[] “pure questions of law” [citation],

and [are] “ ‘clear and correctable’ independent of any factual

issues presented by the record at sentencing” ’ and without

‘remanding for further findings.’ [Citation.]” ( In re G. C.

, at

p. 1130.) I n 1997, when Tarkington was sentenced, s ection

1202.4 authorized a restitution fine of $10,000. ( See Stats. 1996,

ch. 629, § 3 .) Dueñas does not hold that a restitution fine can

never be imposed, only that the defendant’s ability to pay must

appear as a predicate

. ( Dueñas

, supra

, 30 Cal.App.5th at6

p. 1172

. ) D etermination of a defendant’s ability to pay is a

factual issue that would require rem and to the trial court. (See

Torres

, at p. 1085 [ Dueñas claim is based upon factual arguments

concerning ability to pay, and does not fall within the

unauthorized sentence exception] .) Thus, t he fine was not an

unauthorized sentence. ( People v. Avila (2009) 46 Cal.4th 680,

729 [rejecting contention that, because defendant did not have

ability to pay $10,000 restitution fine, it was an unauthorized

sentence].)

Nor did the trial court have jurisdiction by virtue of section

1237.2, and Tarkington does not argue to the contrary. That

statute provides that a “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 defenda nt’s request for

correction.” But, as our colleagues in Division One recently held,

the juris diction created by section 1237.2 “does not extend beyond

the pendency of a defendant’s direct appeal from his or her

judgment of conviction.” ( People v. Torres

, supra

, 44 Cal.App.5th

at p. 1088.) The impetus behind section 1237.2 was judicial

economy, a purpose that would not be served “by extending the

trial court’s jurisdiction to motions made after the conclusion of

the direct appeal.” ( Torres

, at p p

. 1086

– 1087.)

Turrin and Torres are instructive

. In Turrin

, the

defendant purported to appeal from an order denying his request

to modify restitution fines because he lacked the ability to pay.

His motion was brought months after sentencing, and after his

state prison term had begun

. Turrin concluded that the trial

court lacked jurisdiction to entertain the motion, and dismissed

the appeal. ( Turrin

, supra

, 176 Cal.A pp.4th at p p

. 1203

, 1208 .)7

Turrin explained, a “ defendant may not contest the amount,

specificity, or propriety of an authorized order of a restitution fine

. . . in a motion to modify the same in the trial court after it has

lost jurisdi ction.” ( Id. at p. 1207.) And in Torres

— a case

identical to the case at bar

— after his direct appeal concluded, the

defendant filed a Dueñas motion in the superior court, requesting

modification of a $10,000 restitution fine. Torres concluded the

superior court lacked jurisdiction to hear the motion, and

therefore dismissed the appeal. ( Torres

, supra

, 44 Cal.App.5th at

pp. 1083

– 1085.) Likew ise, here, the appeal must be dismissed.

Tarkington relies on language in People v. Fares (1993) 16

Cal.App.4th 954 ( Fares ) and People v. Jordan

, supra

, 21

Cal.App.5th 1136, that there is “no time limitation upon the right

to make [a] motion to correct the sentence.” ( Fares

, at p

. 958 ;

People v. Jordan

, at p. 1140 .) Although this language appears

broad, it must be interpreted in context. The only issue in Fares

was whether the trial court’s mathematical computation of

defendant’s custody credits was incorrect. Fares reasoned that

the issue involved a clerical, inadvertent, or negligent error,

requiring only a “ministerial review of the recor d and an

arithmetic calculation. ” ( Id. at pp. 957, 959.) 4 Where this was

the only issue on appeal, judicial economy mandated resolution in

the trial court in the first instance. ( Id. at pp. 958

– 960 .)

But in Fares

, the erroneous custody credit award amounted

to an unauthorized sentence. A “ sentence that fails to award

4 In response to Fares

, the Legislature enacted section

1237.1, which

— similar to the later

- enacted section 1237.2

— requires that, where it is the only issue on appeal, a defendant

must first request correc tion of a c onduct credit award in the trial

court. ( People v. Jordan

, supra

, 21 Cal.App.5th at p. 1141.)8

legally mandated custody credit is unauthorized and may be

corrected whenever discovered.” ( People v. Taylor (2004) 119

Cal.App.4th 628, 647; People v. Gisbert (2012) 205 Cal.App.4th

277, 282 [award of custody credits which court lacked discretion

to make was “an unauthorized sentence, which the trial court

had juri sdiction to correct at any time ”]; People v. Acosta (1996)

48 Cal.App.4th 411, 428, fn. 8 [“The failure to award an adequate

amount of credits is a jurisdictional error which may be raised at

any time”].) Thus, the Fares court’s pronouncement was correct

in the context of that case, but cannot be read to confer

jurisdiction on trial courts to consider motions to correc t

sentences that do not fall within the unauthorized sentence or

clerical error exceptions

. People v. Jordan likewise does not assist Tarkington.

There, while the defendant’s direct appeal was pending, he

moved in the trial court, pursuant to section 1237 .2, to strike a

penalty assessment imposed on a laboratory analysis fee as

unauthorized. After the trial court denied his motion

— and while

his first appeal was still pending

— Jordan filed a second notice of

appeal on the sentencing issue. ( People v. Jordan

, supra

, 21

Cal.App.5th at pp. 1139

– 1140 .) Quoting the “no time limitation”

language from Fares, Jordan declined to dismiss the second

appeal. ( Id. at p. 1140.) 5 Thus, unlike in the instant matter,

because Jordan’s appeal was pending

, the trial court still had

express statutory jurisdiction to consider his motion by virtue of

section 1237.2.

5 The court nonetheless found the sentencing issue was

waived because Jordan failed to raise it in his original appeal.

( People v. Jordan

, supra

, 21 Cal.App.5th at p. 1139.)9 Finally, even if we were to conclude the order at issue was

appealable, Tarkington’ s claim would fail, because he forfe ited

any challenge to the fine imposed. When the trial court imposed

the $10,000 restitution fine, former section 1202.4, subdivision (c)

provided that inability to pay could be considered if the

restitution fine was imposed in excess of the minimum. (See

Stats. 1996, ch. 629 , § 3.) Because the $10,000 fine imposed was

well above the minimum, Tarkington had a statutory right to an

ability

- to

- pay determination at sentencing. Thus, although

sentencing occurred before Dueñas was decided, an objection to

the $10,000 fine would n ot have been futile at the time

. When

the trial court imposed the fine

, Tarkington did not object

, assert

that he was indigent , or request an ability

- to

- pay determination.

By failing to do so, he forfeited the claim. ( See, e.g., People v.

Miracle ( 2018 ) 6 Cal.5th 318, 356 ; People v. Nelson (2011) 51

Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347,

409; People v. Avila

, supra

, 46 Cal.4th at p. 729; People v. Smith

(2020) 46 Cal.App.5th 375, 394

– 395; People v. Jenkins (2019) 40

Cal.App.5th 30, 40, review granted on another ground Nov. 26,

2019, and review dismissed July 29, 2020, S258 729 ; People v.

Aviles (2019) 39 Cal.App.5th 1055, 1073

– 1074; People v. Gutierrez

(2019) 35 Cal.App.5th 1027, 1033 .) Furthermore, Tarkington’s

failure to raise the issue in his direct appeal also waived it.

( People v. Jordan

, supra , 21 Cal.App.5th at p. 1145.) 6

6 In light of our disposition, we need not address the People’s

arguments that Dueñas does not apply retroactively and the

restitution fine was not unconstitutionally excessive.10 DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

EDMON, P. J.

We concur:

LAVIN , J.

EGERTON , J.