P. v. Allred
Filed 1/6/10 P. v. Allred CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE, Plaintiff and Respondent, v. DAVID STANLEY ALLRED, Defendant and Appellant. | C060367 (Super. Ct. No. CRF061903) |
Defendant David Stanley Allred aided and abetted his brother in entering the home of their father and robbing him of his .380-caliber handgun. Defendants brother used a rifle during the robbery, and defendant stood behind his brother.
On October 10, 2006, defendant pled no contest to robbery (Pen. Code, 211; further statutory references are to this code) and admitted he had a prior strike conviction for attempted burglary ( 667, subds. (b)-(i), 1170.12). That same day, the trial court sentenced defendant to the middle term of two years, doubled to four years for the prior strike, in state prison. The trial court imposed an $800 restitution fine pursuant to section 1202.4, subdivision (b), and an additional $800 restitution fine pursuant to section 1202.45, stayed pending successful completion of parole. Defendant was remanded forthwith.
More than two years later, on October 15, 2008, defendant filed an Ex Parte Motion for Disposition of Fines Pursuant to Penal Code 1205(a). In his motion, he requested that the court exercise its discretion to convert his restitution fine (and parole revocation fine) to jail time pursuant to section 1205.[1] The trial court denied the motion for failure to show good cause for the modification.
Defendant appeals from the trial courts denial of his Ex Parte Motion for Disposition of Fines Pursuant to Penal Code 1205(a).
On May 7, 2009, this court requested supplemental briefing on whether the trial court had jurisdiction to rule on defendants motion on the merits and, if not, whether the appeal should be dismissed.
On August 20, 2009, this court filed its opinion in People v. Turrin (2009) 176 Cal.App.4th 1200 (Turrin). In Turrin, we held the trial court lacked jurisdiction to rule on a defendants motion to modify restitution fines after the defendant had started serving his sentence to state prison. (Id. at pp. 1204-1206, 1208.)
We requested the parties to submit supplemental briefs commenting on Turrin.
In his supplemental brief, defendant acknowledges this case is controlled by Turrin but wishes to preserve the issue for review by the California Supreme Court.
We continue to believe that Turrin was correctly decided, that the trial court in this case lacked jurisdiction to rule on defendants motion on the merits, and that this appeal must be dismissed. (Turrin, supra, 176 Cal.App.4th at pp. 1208-1209.)
DISPOSITION
The appeal is dismissed.
SIMS , Acting P. J.
We concur:
NICHOLSON , J.
CANTIL-SAKAUYE , J.
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[1] Section 1205, subdivision (a) provides as pertinent: A judgment that the defendant pay a fine, with or without other punishment, may also direct that he or she be imprisoned until the fine is satisfied . . . . A defendant held in custody for nonpayment of a fine shall be entitled to credit on the fine for each day he or she is so held in custody, at the rate specified in the judgment [not to exceed $30 per day].
