Filed 10/19/20 P. v. Green CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304611
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA069734)
v.
BROUNCHE STEPHAN GREEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura L. Laesecke, Judge. Dismissed.
Brounche Stephan Green, in pro. per.; William J.
Capriola, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Respondent.
INTRODUCTION
In 2006, appellant Brounche Stephan Green was
convicted of five offenses arising from a single incident in
which he physically attacked and terrorized his cohabitant
and her children. (People v. Green (Jan. 23, 2008, B194137)
2008 Cal.App.Unpub. LEXIS 551, *1 (Green I).) Appellant
was sentenced to 128 years to life, comprising five
consecutive 25-years-to-life sentences enhanced by three
consecutive one-year sentences for prior felonies and a
prison term. (Id. at *2-*3.) The court also imposed a
$10,000 victim restitution fine. In Green I, we stayed two of
the five 25-years-to-life sentences, leaving appellant with a
78-years-to-life sentence. (Id. at *35.)
In December 2019, citing People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), appellant filed a motion seeking
to vacate the victim restitution fine because it was imposed
without determining his ability to pay. The trial court
summarily denied the motion, finding that appellant had
“the ability to pay based on prison wages earned over the
course of his life in prison” and that the “concerns expressed
by the court in Duenas [sic], including ‘loss of employment or
shelter, compounding interest, further legal action and ever-
expanding financial burden’ do not apply to this inmate.”
Appellant timely filed a notice of appeal, arguing that the
court’s imposition of “restitutional fines” ignored his inability
to pay, and that the trial court failed to consider or comply
with Dueñas.
2
Appellant’s appointed counsel filed an opening brief
under People v. Wende (1979) 25 Cal.3d 436, identifying no
arguable issues and requesting this court conduct an
independent review of the record. On June 22, 2020, we
notified appellant he had 30 days to submit in writing any
issues or contentions he wished us to consider. On August
10, 2020, we received the following documents from
appellant: (1) “Motion to/for Leave to File Supplemental
Brief”; (2) “Points, Authorities and Argument in Support of
Supplemental Brief”1; and (3) “Appe[]llant[’]s Supplemental
Brief - Ground Two.” Various proofs of service included with
the documents claim they were mailed on July 14, 2020 (i.e.,
within thirty days of our June 22 notice).
“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
1 Appellant’s “Points, Authorities and Argument in Support
of Supplemental Brief” deals exclusively with a January 2020
motion appellant filed to modify his sentence pursuant to Penal
Code section 1016.8 and the court’s summary denial of that
motion. Because nothing in the notice of appeal indicates
appellant has appealed from the court’s denial of that motion,
these issues are not before us and we do not consider them.
(Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436 [“Our
jurisdiction on appeal is limited in scope to the notice of appeal
and the judgment or order appealed from”].)
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must be dismissed. [Citations.]” (People v. Torres (2020) 44
Cal.App.5th 1081, 1084 (Torres).) In Torres, as here, the
appellant filed a motion to modify his restitution fine on the
ground that it had been imposed without a determination of
his ability to pay; the trial court denied the motion. (Ibid.)
Our colleagues in Division One dismissed the appeal,
holding that because the “motion to correct his sentence was
made after his direct appeal had concluded, . . . the order
denying the motion [to modify his restitution fine] was
nonappealable, and the appeal must be dismissed.” (Id. at
1088.)
Here, appellant was convicted in 2006, and his
previous appeal was concluded in 2008; after his petition for
review to the California Supreme Court was denied, we
issued a remittitur on June 4, 2008. His motion to vacate
the victim restitution fee was not filed until 11 years later.
As in Torres, the trial court here lacked jurisdiction to rule
on appellant’s motion, and his appeal from the denial of that
motion must be dismissed.2
2 We note also that we have found no case in which Dueñas
was retroactively applied to a final judgment.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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