Filed 7/18/17 P. v. Grijalva 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RAUL JOHN GRIJALVA,

Defendant and Appellant.


F073284

(Super. Ct. No. 11CM0984HTA)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County.
Thomas DeSantos, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appointed counsel for defendant Raul John Grijalva asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. We find no arguable issues on appeal.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On June 27, 2011, defendant pled no contest to driving with 0.08 percent or more blood-alcohol concentration causing great bodily injury (Veh. Code, § 23153, subd. (b); count 2) and hit and run with injury (Veh. Code, § 20001, subd. (a); count 3). As to count 2, he admitted having suffered three prior Vehicle Code section 23153, subdivision (b) convictions (Veh. Code, § 23566, subds. (b) & (c)), and admitted he had personally inflicted great bodily injury upon the victim (Pen. Code, § 12022.7, subd. (a)).
On July 26, 2011, the trial court sentenced defendant to the upper term of four years in prison on count 2, plus three years for the great bodily injury enhancement, and eight months on count 3 to be served consecutively, for a total term of seven years eight months. The court ordered defendant to pay various fines and fees, including victim restitution in the amounts of $67,731.97 and $3,651.60.
On May 7, 2012, defendant filed a motion to modify his sentence, seeking to reduce the $67,731.97 victim restitution on the ground there was insufficient evidence of defendant’s ability to pay. He had handwritten his name and amount of restitution into a form entitled “MOTION FOR MODIFICATION OF SENTENCE PURSUANT TO PENAL CODE § 1202.4 & 1202.45.” The form requested that the restitution fine be reduced to $200. !(CT 87-97)! On May 11, 2012, the trial court denied the motion.
On December 17, 2015, defendant again filed a motion to reduce the victim restitution. The motion was identical to the 2012 form, except that defendant filled in the restitution amount as $70,000+ instead of $67,731.97. On January 25, 2016, the trial court denied the motion, noting the fines imposed fell within the acceptable range, and thus the court no longer had jurisdiction over the matter.
On February 11, 2016, defendant appealed the trial court’s January 25, 2016 denial of his motion.
DISCUSSION
Trial courts retain continuing jurisdiction to modify the victim restitution order. (§ 1202.4, subd. (f)(1) [“The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant”], § 1202.42, subd. (d) [court-ordered income deduction for purposes of victim restitution is effective until further court order]; People v. Turrin (2009) 176 Cal.App.4th 1200, 1207 [“section 1202.42 confers continuing jurisdiction to modify an order for victim restitution”].)
Former section 1202.4, subdivision (g), however, provided (at the time of defendant’s plea and sentencing): “The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of a restitution order.” Accordingly, defendant may not appeal the denial of his post-judgment motion to modify the victim restitution order because his only asserted basis for the modification was his inability to pay.
Section 1237, subdivision (b) provides that a defendant may appeal “[f]rom any order made after judgment, affecting the substantial rights of the party.” The trial court’s order denying defendant’s motion did not affect his substantial rights because the trial court lacked jurisdiction to modify the victim restitution amount based upon defendant’s inability to pay. (§ 1202.4, subd. (g).)
Having reviewed the record, we find no arguable issues on appeal.
DISPOSITION
The appeal is dismissed.