Filed 9/17/20 P. v. Diaz-Rivero CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305684
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA063442)
v.
CARLOS DIAZ-RIVERO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Appeal dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
In 2015, defendant and appellant Carlos Diaz-Rivero pled
no contest to attempted murder. The trial court imposed a
restitution fine of $3,000, as well as a criminal conviction
assessment and a court security fee. In 2020, citing People v.
Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Diaz-Rivero
unsuccessfully moved in the trial court for modification of the
restitution fine. He appeals the court’s order denying the motion.
Because the order is nonappealable, we dismiss the appeal.
PROCEDURAL BACKGROUND
On August 18, 2015, Diaz-Rivero pled no contest to
attempted murder, with a firearm enhancement. (Pen. Code,
§§ 664, 187, subd. (a), 12022.5, subd. (a).)1 The trial court, the
Hon. Christopher G. Estes, sentenced Diaz-Rivero to a term of 15
years, in accordance with the plea agreement. Without objection,
the court imposed a restitution fine of $3,000, a suspended parole
revocation restitution fine in the same amount, a $30 criminal
conviction assessment, and a $40 court operations assessment.
This court affirmed the judgment in November 2016. (People v.
Rivero (Nov. 4, 2016, B267288) (nonpub. opn.).) The remittitur
issued on January 17, 2017.
On January 8, 2020, Diaz-Rivero, acting in propria persona,
moved to modify the restitution fine based on Dueñas. He argued
that under Dueñas, the court was required to conduct an ability-
to-pay hearing before imposing such a fine, his sentence was
unauthorized, and such a hearing should be held or the
restitution fine reduced. The Hon. Daviann L. Mitchell denied
the motion in a written order filed on January 23, 2020. Among
other things, the court reasoned that the trial court must have
1 All further undesignated statutory references are to the
Penal Code.
2
considered defendant’s ability to pay because it imposed a
restitution fine greater than the statutory minimum, the
restitution fine was proper in light of the nature of the crime and
the sentence imposed, and the issue was forfeited because Diaz-
Rivero failed to object or assert his inability to pay at sentencing.
Diaz-Rivero filed a timely notice of appeal.
DISCUSSION
After review of the record, Diaz-Rivero’s court-appointed
counsel filed an opening brief that raised no issues, and
requested that this court conduct an independent review of the
record pursuant to People v. Wende (1979) 25 Cal.3d
436. Appellant was advised that he had 30 days to submit by
brief or letter any contentions or argument he wished this court
to consider. He has filed a supplemental brief.
The trial court’s order is nonappealable. Generally, once a
judgment is rendered and execution of the defendant’s sentence
has begun, the trial court lacks jurisdiction to vacate or modify
the sentence. (People v. Torres (2020) 44 Cal.App.5th 1081, 1084;
People v. Hernandez (2019) 34 Cal.App.5th 323, 326; People v.
Turrin (2009) 176 Cal.App.4th 1200, 1204.) “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, at p. 1084; see also People v. Fuimaono (2019)
32 Cal.App.5th 132, 135.)
Even if the order were appealable, Diaz-Rivero’s claim
would fail because he forfeited any challenge to the restitution
fine imposed. The minimum restitution fine under section 1202.4
is $300. (§ 1202.4, subd. (b)(1).) Subdivision (d) of that statute
provides that inability to pay may be considered when the court
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imposes a fine above the minimum. Thus, Diaz-Rivero had a
statutory right to an ability-to-pay determination at sentencing
and an objection would not have been futile. But when the trial
court imposed the fine, Diaz-Rivero did not object, assert that he
was indigent, or request an ability-to-pay determination. By
failing to do so, he forfeited the claim. (See, e.g., People v.
Miracle (2018) 6 Cal.5th 318, 356; People v. Nelson (2011) 51
Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347,
409; People v. Aviles (2019) 39 Cal.App.5th 1055, 1073–1074.) By
failing to object that he lacked the ability to pay the $3,000
restitution fine, he also forfeited his challenges to the much lower
court operations and criminal conviction assessments.
In his supplemental brief, Diaz-Rivero argues that his
conviction is not final within the meaning of In re Estrada (1965)
63 Cal.2d 740. He is incorrect. The remittitur issued in the case
in 2017, long before he filed his motion. The fact he purportedly
has an unrelated federal appeal has no effect on the finality of
Los Angeles Superior Court case No. MA063442.
Diaz-Rivero also asserts that the trial court promised to
conduct “a restitution hearing as part of the plea agreement,” but
failed to do so. But the restitution hearing the court and the
parties referred to was a hearing to determine the amount of
direct victim restitution pursuant to section 1202.4, subdivision
(f), not a section 1202.4, subdivision (b) fine.2 Dueñas does not
address the issue of direct victim restitution.
Nor is Diaz-Rivero’s sentence unauthorized, as he suggests.
Dueñas held that due process requires that a trial court stay
2 From the record before us, it does not appear that the court
ordered any direct victim restitution.
4
execution of a section 1202.4 restitution fine unless and until the
People demonstrate a defendant has the ability to pay it.
(Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1169–1172.)3 Dueñas
does not hold that a restitution fine can never be imposed, only
that the defendant’s ability to pay must appear as a predicate.
(Id. at p. 1172.) Thus, the fine was not an unauthorized sentence.
(People v. Avila (2009) 46 Cal.4th 680, 729.)
We have examined the record, and are satisfied no arguable
issues exist and Diaz-Rivero’s attorney has fully complied with
the responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th
106, 126; People v. Wende, supra, 25 Cal.3d at pp. 441–442.)
3 Our Supreme Court is currently considering whether a
court must evaluate a defendant’s ability to pay before imposing
or executing fines, fees, and assessments. (People v. Kopp (2019)
38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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