Filed 7/15/22 P. v. Hill CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
| THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL DWIGHT HILL,
Defendant and Appellant.
| B315860
(Los Angeles County Super. Ct. No. YA049122) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Amy N. Carter, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Appellant Michael Dwight Hill appeals following the trial court’s denial of his post-judgment motion to vacate restitution fines imposed at a previous sentencing. Hill’s appointed counsel filed a brief on appeal raising no issues and invoking People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Because the trial court’s order is not appealable, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2002, Hill was convicted of several crimes including forcible rape, forcible sexual penetration, and assault with force likely to cause great bodily injury. The court imposed an aggregate sentence of 110 years. Additionally, the court imposed a restitution fine of $10,000 (Pen. Code,[1] § 1202.4, subd. (b)), a parole revocation restitution fine of $10,000 (§ 1202.45),[2] and a fine of $300 to the victims of sex crime fund (§ 290.3, subd. (a)).
On September 17, 2021, Hill filed a post-judgment “motion to dismiss restitution order by the court pursuant to Assembly Bill 1869” seeking to vacate his restitution fines. Hill argued that pursuant to Assembly Bill No. 1869, which added section 1465.9 to the Penal Code, these restitution fines were now unenforceable and uncollectible and any portion of a judgment imposing those fines must be vacated.
The superior court dismissed Hill’s post-judgment motion, concluding that section 1465.9 is inapplicable because the restitution fines imposed on Hill are not among those enumerated in section 1465.9.[3]
Hill timely appealed.
DISCUSSION
Hill’s appointed counsel filed a brief raising no issues and invoking Serrano, supra, 211 Cal.App.4th 469. Counsel sent the record and a copy of the appellate brief to Hill, and this court notified Hill of his right to file a supplemental brief. We received no response. Under Serrano, when appointed counsel raises no issue in an appeal from a post-judgment proceeding, an appellate court need not independently review the record. Moreover, if the appellant fails to file a supplemental brief, we may dismiss the appeal as abandoned. (Id. at pp. 498, 503; see also People v. Cole (2020) 52 Cal.App.5th 1023, 1039–1040, review granted Oct. 14, 2020, S264278.) In this case, however, Hill has filed an appeal from a non-appealable order, thereby depriving this court of jurisdiction in the first instance.
A defendant may appeal “[f]rom any order made after judgment, affecting the substantial rights of the party” (§ 1237, subd. (b)), but it is long established that this does not include the right to appeal the denial of a motion that “merely asked the court to repeat or overrule a former ruling on the same facts.” (People v. Rick (1952) 112 Cal.App.2d 410, 412.)
Here, there is no indication that the law has changed in a way that would allow Hill to seek a reduction or reversal of his restitution fines. Assembly Bill No. 1869, which Hill cited in his motion in the superior court, provides relief from certain administrative fees imposed on criminal defendants (see People v. Clark (2021) 67 Cal.App.5th 248, 259–260), but does not abolish restitution fines or parole revocation fines.
A subsequent statute, Assembly Bill No. 177 (2021-2022 Reg. Sess.), amended section 1465.9 to provide that, “[o]n and after January 1, 2022 the balance of any court-imposed costs pursuant to [s]ection . . . 1202.4 . . . as [that] section[ ] read[s] on December 31, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (§ 1465.9, subd. (b).) But the Legislature’s purpose in enacting this statute was “to eliminate the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and to eliminate all outstanding debt incurred as a result of the imposition of administrative fees.” (Stats. 2021, ch. 257, § 2.) As part of this legislation, the Legislature repealed a provision allowing county boards of supervisors to “impose a fee to cover the actual administrative cost of collecting the restitution fine” (former § 1202.4, subd. (l)), while leaving the rest of section 1202.4 intact. As such, there is no indication that the Legislature meant to provide relief from the restitution fines challenged by Hill in his motion before the superior court.
In sum, the trial court’s order is not appealable, and we must therefore dismiss the appeal.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED in the official reports
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
[1] All further undesignated statutory references are to the Penal Code.
[2] The parole restitution fine was stayed.
[3] Assembly Bill No. 1869 amended the Penal Code by adding section 1465.9, which provides that on or after July 1 “the balance of any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 62; § 1465.9.)
