Filed 11/19/18 P. v. Lopez CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Richard Carlos Lopez appeals from an order denying his post-judgment motion which he filed in propria persona to vacate or reduce various fines and fees, and a restitution order. His appellate counsel has raised no issues and asks this court for an independent review of the pertinent record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the order. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.

Defendant was ordered to pay fines, fees and restitution following a no contest plea in October 2015 to assault with a firearm and an admission the crime was for the benefit of, at the direction of, or in association with a criminal street gang, in case No. H55717D. Specifically, the court imposed a restitution fine pursuant to Penal Code section 1202.4, subdivision (b),[1] a suspended parole revocation fine pursuant to section 1202.45, and a probation investigation fee pursuant to section 1203.1b, and ordered victim restitution payable to the Victim Compensation Board ordered under section 1202.4. At the sentencing hearing, the trial court specifically inquired about the request for restitution, and on inquiry by the court, defendant stated he had reviewed the matter with his attorney and his attorney stated defendant agreed to accept the requested amount, which was payable jointly and severally with two other defendants. Defense counsel also agreed to accept copies of victim statements and letters, which were made part of the record, and to forward them to defendant. The trial court then duly imposed fines and fees and ordered restitution.

As part of the negotiated disposition, defendant was also re-sentenced in a prior case, No. H50348A, to a total of 19 years in state prison. The court re-imposed, inter-alia, a restitution fund fine pursuant to section 1202.4, subdivision (b), a parole revocation fine pursuant to section 1202.45, a probation investigation fee pursuant to section 1203.1b, and a court operations fee pursuant to section 1465.8. The court reserved restitution.

Two and a half years later, in February 2018, defendant filed a “Motion to Recall case; Motion to Vacate, Reduce, and or exempt Restitution, fines, fees, court orders, and direct order P.C. 1202.4 and P.C. 1202.45.” Defendant, citing a variety of federal circuit Court of Appeal cases, maintained the trial court failed to take into account his asserted inability to (ever) pay the fines, fees and restitution and that this failure implicated his constitutionally protected property interest in whatever financial assistance might be provided by his family.

The trial court denied defendant’s motion by written order filed on May 21, 2018. As to the restitution fines imposed pursuant to section 1202.4, subdivision (b), the court explained that given that the judgment had long been final, the court had no jurisdiction to alter the fine. The court did not separately address the correlating (and suspended) parole revocation fines, but if the trial court had no jurisdiction to alter the restitution fine, it similarly had no jurisdiction to alter the revocation fine. (See People v. Tillman (2000) 22 Cal.4th 300, 301–302 [when trial court imposes a restitution fine as part of the judgment of conviction, it must also impose, where the defendant is sentenced to prison, an additional fine in the same amount suspended unless parole is later revoked].)

As for the probation investigation fees, while the court had jurisdiction to modify them, defendant failed to show any change in his circumstances. The court observed that it had been clear from the report prepared for the sentencing hearings that at that time, defendant had no financial resources. Finally, as for the victim restitution ordered under section 1202.4, the court explained that, by statute, only the court, the victim or the District Attorney can seek modification.

Disposition

Having reviewed the entirety of the record relevant to the court’s denial of defendant’s motion to vacate or reduce various fines and fees, and a restitution order, we find no arguable issues and affirm the trial court’s post-judgment order.

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Banke, J.

We concur:

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Humes, P.J.

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Margulies, J.

A154616, People v. Lopez