People v. Pelayo CA2/2 ( 2022 )

Filed 8/26/22 P. v. Pelayo CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B317900
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA021870)
v.
SAUL PELAYO,
Defendant and Appellant.
THE COURT:
Saul Pelayo appeals the order of the superior court denying
his postjudgment motion to modify his sentence to stay or reduce
the order to pay a $5,000 restitution fine. (Pen. Code,1 § 1202.4,
subd. (b).) We appointed counsel to represent Pelayo on appeal.
After examination of the record, counsel filed an opening brief
raising no issues and requesting that we follow the procedures
set forth in People v. Serrano (2012) 211 Cal.App.4th 4961 Undesignated statutory references are to the Penal Code.
(Serrano). Pelayo filed a supplemental brief, in propria persona,
on August 11, 2022.
BACKGROUND
In 1999, Pelayo was convicted by a jury of murder (§§ 187,
subd. (a)) with personal use of a firearm (§ 12022.5, subd. (a)).
On November 3, 1999, the trial court sentenced Pelayo to state
prison for 25 years to life and imposed a $5,000 restitution fine
pursuant to section 1202.4, subdivision (b). On direct appeal
from the judgment, this court affirmed the conviction and
sentence. (People v. Pelayo (Oct. 4, 2000, B137409) [nonpub.
opn.].) The California Supreme Court denied review on
December 20, 2000, and this court issued the remittitur in the
case on January 4, 2001. On September 19, 2005, this court
denied Peyalo’s petition for writ of habeas corpus in case
No. B185594. In two subsequent appeals, we affirmed the denial
of Pelayo’s postjudgment motion to strike the firearm
enhancement (People v. Pelayo (Nov. 21, 2018, B290919) [nonpub.
opn.]), and affirmed the summary denial of Pelayo’s petition for
resentencing under section 1172.6 (former § 1170.95)2 (People v.
Pelayo (Nov. 12, 2020, B303425 [nonpub. opn.]).
On December 13, 2021, Pelayo filed a “Motion to Stay
Execution of Restitution Fines” imposed under section 1202.4 on
the ground that the restitution fine was unlawful because it was
ordered without a determination by the court of his ability to pay
(citing People v. Duenas (2019) 30 Cal.App.5th 1157). The
superior court summarily denied the motion.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in the text. (Stats.
2022, ch. 58, § 10.)
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DISCUSSION
Because the instant appeal is not from his conviction,
appellant is not entitled to our independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 or its federal
constitutional counterpart, Anders v. California (1967) 386 U.S.
738. (See People v. Kelly (2006) 40 Cal.4th 106, 119 [independent
judicial review mandated by Anders applies only to first appeal
as of right]; Serrano, supra, 211 Cal.App.4th at p. 503; see also
Pennsylvania v. Finley (1987) 481 U.S. 551, 559.)
In his supplemental brief, appellant contends: (1) The trial
court violated appellant’s due process rights by failing to conduct
a hearing to consider appellant’s ability to pay a restitution fine
in excess of the statutory minimum. Further, appellant’s history
of payments, based on an automatic 50 percent deduction from
prison wages and all other sources over nearly 23 years of
incarceration, indisputably demonstrates his inability to pay the
$5,000 restitution fine. (2) Under Code of Civil Procedure
section 683.020, the restitution fine ordered on November 3,
1999, is not enforceable more than 10 years after its imposition.
(3) Because courts have granted other similarly situated
prisoners’ motions to stay execution of restitution fines, the
denial of appellant’s motion for the same relief violates equal
protection.
None of these contentions has merit. The time to challenge
the trial court’s imposition of the restitution fine in this case was
at the time of sentencing, not 22 years later. It is settled that “a
criminal defendant who does not challenge an assertedly
erroneous ruling of the trial court in that court has forfeited his
or her right to raise the claim on appeal.” (In re Sheena K. (2007)
40 Cal.4th 875, 880.) This rule applies to alleged sentencing
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errors, including the imposition of fees and fines. (People v.
Trujillo (2015) 60 Cal.4th 850, 856 [constitutional right may be
forfeited in criminal as well as civil cases by failure to make
timely assertion of the right before tribunal having jurisdiction to
determine it]; People v. Gamache (2010) 48 Cal.4th 347, 409,
[defendant forfeited challenge to restitution fine by failing to
object in trial court]; People v. Scott (1994) 9 Cal.4th 331, 351–
354 [to preserve sentencing issue for appellate review, defendant
must raise it in trial court].)
Further, Code of Civil Procedure section 683.020 does not
apply to a restitution fine imposed under Penal Code section
1202.4. Enforcement of restitution fines ordered pursuant to
section 1202.4 is governed by Penal Code section 1214, which
provides: “If the judgment is for a fine, including a restitution
fine ordered pursuant to Section 1202.4, . . . the judgment may be
enforced in the manner provided for the enforcement of money
judgments generally.” (Pen. Code, § 1214, subd. (a); In re J.H.
(2020) 47 Cal.App.5th 495, 499.) However, the statute
specifically states that “Chapter 3 (commencing with Section
683.010) of Division 1 of Title 9 of Part 2 of the Code of Civil
Procedure shall not apply to any of the following: [¶] . . . [¶] . . .
A restitution fine or restitution order imposed pursuant to
Section 1202.4.” (Pen. Code, § 1214, subd. (e); see also In re J.H.,
at p. 502 [“while a restitution order in a delinquency case is
enforceable like a money judgment, it is not a money judgment
for the purpose of applying the 10-year period of enforceability of
money judgments contained in Code of Civil Procedure section
683.020”].)
Fundamentally, however, this court has no jurisdiction to
entertain an appeal from the summary denial of appellant’s
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motion to stay the execution of the restitution fine imposed under
section 1202.4, subdivision (b), because the superior court had no
jurisdiction to entertain appellant’s freestanding motion 22 years
after entry of judgment in this case. (People v. King (2022) 77
Cal.App.5th 629, 633 (King); People v. Torres (2020) 44
Cal.App.5th 1081, 1084–1085 [because a trial court lacks
jurisdiction to vacate or modify sentence after judgment once
execution of the sentence has begun, an order denying such a
motion by a trial court without jurisdiction is nonappealable];
People v. Turrin (2009) 176 Cal.App.4th 1200, 1207 [“A defendant
may not contest the amount, specificity, or propriety of an
authorized order of a restitution fine for the first time on appeal
[citations] let alone in a motion to modify the same in the trial
court after it has lost jurisdiction”].) Accordingly, we must
dismiss the appeal.
In King, we recognized the general common law rule that
once execution of a criminal defendant’s sentence has
commenced, the trial court loses jurisdiction to modify the
sentence. (King, supra, 77 Cal.App.5th at p. 636.) We noted
several exceptions to the rule: “Section 1170.03, subdivision (a)
gives a trial court the authority to recall a sentence on its own
motion within 120 days of the defendant's remand, or at any time
upon a request by various law enforcement officials. [Citation.]
The Legislature has also created other specific statutory avenues
for incarcerated defendants to seek resentencing in particular
cases. (See, e.g., §§ 1170.95, 1170.126, 1170.18.) If a
modification does not make a substantive change to a sentence
but simply corrects a clerical error, the trial court has the
inherent power to correct its own records at any time. [Citation.]
And a trial court may of course rule on a defendant’s challenge to
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an unlawful sentence in a properly filed petition for a writ of
habeas corpus.” (King, at p. 637.)
None of these exceptions applies here. Appellant seeks to
reduce or stay the restitution fine in a freestanding motion filed
22 years after his judgment was rendered and affirmed on
appeal, execution of his sentence had begun, a petition for review
in the California Supreme Court had been denied, and remittitur
had issued. The restitution fine was set within the statutorily
permitted range and was authorized by section 1202.4,
subdivision (b). We discern no clerical error pertaining to the
fine.
Section 1237, subdivision (b) provides that a party may
appeal “[f]rom any order made after judgment, affecting the
substantial rights of the party.” Here, however, because the trial
court lacked jurisdiction to modify the restitution fine, its order
denying appellant’s motion requesting to stay or reduce the fine
did not affect his substantial rights and is not an appealable
postjudgment order. (People v. Jinkins (2020) 58 Cal.App.5th
707, 713, fn. 5.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
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