People v. Salcedo CA2/5 ( 2021 )

Filed 12/28/21 P. v. Salcedo CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B312650
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA050808)
v.
EUSEBIO GOMEZ SALCEDO,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of the County of Los Angeles, Hayden Zacky, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________________
In 2005, a jury found defendant Eusebio Salcedo guilty of
attempted murder in violation of Penal Code sections 664 and
187, subdivision (a);1 assault with a firearm in violation of section
245, subdivision (a)(2); and shooting at an occupied vehicle in
violation of section 246. The jury also found true the allegation
that defendant personally inflicted great bodily injury on the
victim within the meaning of section 12022.7, subdivision (a) and
that defendant personally used, intentionally discharged, and
caused great bodily injury with a handgun in violation of section
12022.53, subdivisions (b), (c), and (d).
On the attempted murder conviction, the trial court
sentenced defendant to life, plus a consecutive term of 25 years to
life for the section 12022.53, subdivision (d) enhancement and
imposed but stayed the remaining enhancements. The court also
imposed a $10,000 restitution fine pursuant to section 1202.4,
subdivision (b), an additional $10,000 parole restitution fine
pursuant to section 1202.45, which it stayed pending successful
completion of parole, and a $20 court security fee pursuant to
section 1465.8, subdivision (a)(1).
On September 13, 2006, a prior panel of this Division
affirmed defendant’s conviction in an unpublished opinion, but
remanded the matter with instruction to amend the abstract of
judgment. (People v. Gomez (Sep. 13, 2006, B187966) [nonpub.
opn.].)
On April 9, 2021, defendant filed an ex parte motion to
vacate his court security fees, conviction assessment, and
restitution fines pursuant to People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), arguing, among other things, that
the trial court erred by imposing the fines, fees, and assessments
without first holding an ability to pay hearing. That same day,
the court issued a ruling without hearing denying the motion on
1 All further statutory references are to the Penal Code.
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the grounds that, to the extent the motion was based on Dueñas,
it was inapplicable because defendant’s case was final. The court
also concluded that defendant had forfeited his challenge by
failing to object to the fines and fees when they were imposed and
on the additional ground that defendant would have the ability to
earn wages in prison while serving his sentence from which he
could pay the fines and fees. On May 17, 2021, defendant filed
his notice of appeal.
We appointed counsel to represent defendant on appeal.
On August 10, 2021, defendant’s counsel filed an opening brief in
which he did not identify any arguable issues and requested that
we follow the procedure set forth in People v. Serrano (2012) 211
Cal.App.4th 496, (Serrano).
Defendant has appealed from a nonappealable order.
“Generally, once a judgment is rendered and execution of the
sentence has begun, the trial court does not have jurisdiction to
vacate or modify the sentence. [Citations.] If the trial court does
not have jurisdiction to rule on a motion to vacate or modify a
sentence, an order denying such a motion is nonappealable, and
any appeal from such an order must be dismissed. [Citations.]”
(People v. Torres (2020) 44 Cal.App.5th 1081, 1084 (Torres); see
also, People v. Jinkins (2020) 58 Cal.App.5th 707, 712.)
Because the execution of defendant’s sentence began well
before he filed his postjudgment motion under Dueñas, supra, 30
Cal.App.5th 1157, the trial court had no jurisdiction to rule on it.
Its order denying the motion was therefore nonappealable, and
the appeal from that order must be dismissed. (See Torres,
supra, 44 Cal.App.5th at p. 1083 [order denying postjudgment
motion to modify restitution fine based on inability to pay
nonappealable].)
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The appeal is dismissed.
____________________________________________________________
RUBIN, P. J. BAKER, J. KIM, J.
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