People v. Brown CA2/7 ( 2021 )

Filed 9/27/21 P. v. Brown CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B312864
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA037315)
v.
CHRISTOPHER ANTHONY
BROWN,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Lisa Strassner, Comissioner. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
________________
Christopher Anthony Brown was convicted following a jury
trial in 2014 of two counts of first degree murder with true
findings on a multiple-murder special-circumstance allegation
and firearm-use enhancements. He was sentenced to
two consecutive indeterminate state prison terms of life without
parole plus two consecutive terms of 25 years to life. In addition,
at sentencing the court ordered Brown to pay direct victim
restitution of $2,964 and imposed statutory fines, fees and
assessments, including the maximum restitution fine of $10,000.
We affirmed the convictions and sentence on appeal. (People v.
Brown (March 8, 2016, B255316) [nonpub. opn.].)
In April 2021 Brown, representing himself, filed a motion
to vacate the fines, fees and assessments imposed at sentencing,
purportedly pursuant to Penal Code section 1237.2,1 arguing the
trial court had not considered his ability to pay the amounts
imposed as required by this court’s decision in People v. Dueñas
(2019) 30 Cal.App.5th 1157. The superior court denied the
motion on May 4, 2021, explaining Brown had the opportunity
1 Penal Code section 1237.2 authorizes the trial court to
correct any error in the imposition or calculation of fines,
assessments, fees or costs while the defendant’s direct appeal
from the judgment of conviction is pending. It does not confer
jurisdiction for the court to hear a motion to vacate or modify a
sentence long after the judgment is final. Indeed, a trial court
generally has no jurisdiction to modify a defendant’s sentence
after execution of the sentence has begun (People v. Karaman
(1992) 4 Cal.4th 335, 344; People v. Hernandez (2019)
34 Cal.App.5th 323, 326), and an order denying such a motion
can properly be dismissed as nonappealable. (People v. Torres
(2020) 44 Cal.App.5th 1081, 1084.)
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but did not object to imposition of a restitution fine above the
statutory minimum based on his inability to pay.
Brown filed a timely notice of appeal. In accord with the
procedures described in People v. Cole (2020) 52 Cal.App.5th
1023, review granted October 14, 2020, S264278, we appointed
counsel to represent him. After a review of the record, Brown’s
appointed appellate counsel did not identify any arguable issues
and so informed this court. On August 10, 2021 appointed
counsel advised Brown he could personally submit any
contentions he believed the court should consider. We sent a
similar notice on the same date.
On September 16, 2021 Brown filed a nine-page typed
supplemental brief arguing the superior court prejudicially erred
in denying his motion to vacate the restitution fine based on his
indigency. Brown asserted imposition of the $10,000 restitution
fine without determining his ability to pay violated his
constitutional rights, as set forth in this court’s decision in People
v. Dueñas, supra, 30 Cal.App.5th 1157 and decisions from other
courts of appeal that have employed an excessive fines, rather
than a due process, analysis. Citing our decision in People v.
Castellano (2019) 33 Cal.App.5th 485, Brown also argued his
failure to raise his inability to pay at his sentencing hearing in
2014 did not forfeit his constitutional claim because Dueñas
announced a constitutional principle that could not have been
reasonably anticipated. However, as the superior court explained
in denying Brown’s motion, Penal Code section 1202.4, which
mandates imposition of a restitution fine following a felony
conviction, expressly authorized the court to consider a
defendant’s inability to pay when increasing the amount of the
restitution fine above the $300 statutory minimum. (Pen. Code,
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§ 1202.4, subd. (c).) Brown thus had the opportunity to raise his
inability to pay and failed to do so. The superior court properly
denied Brown’s motion.
Because no cognizable legal issues have been raised by
Brown’s appellate counsel or by Brown or identified in our
independent review of the record, the order denying the
postjudgment motion is affirmed. (See People v. Cole, supra,
52 Cal.App.5th at pp. 1039-1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People
v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende (1979)
25 Cal.3d 436, 441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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