Filed 10/8/21 P. v. O’Neal CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
THE PEOPLE, B309902
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. YA063443)
v.
MICHAEL O’NEAL, SR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Noah P. Hill and Peggy Z. Huang, Deputy Attorneys
General, for Plaintiff and Respondent.
________________________
Michael O’Neal, Sr., appeals from a postjudgment order
denying his motion to vacate or to stay victim restitution and a
restitution fine under People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas). His appellate counsel filed a brief asking this
court to proceed under People v. Serrano (2012) 211 Cal.App.4th
496 (Serrano).1 We asked for supplemental briefing regarding
whether Dueñas applied retroactively to O’Neal’s sentence,
whether his case was final when Dueñas was decided, and
whether any error in denying the motion was harmless. O’Neal
filed a supplemental brief which we have reviewed and
considered. As we explain, we now find that the appeal must be
dismissed.
1 People v. Serrano, supra, 211 Cal.App.4th 496, found that
review under People v. Wende (1979) 25 Cal.3d 436, does not
apply to appeals from orders denying postconviction relief.
(Accord, People v. Cole (2020) 52 Cal.App.5th 1023, review
granted Oct. 14, 2020, S264278.) Cole, at pages 1039 to 1040,
held that an appeal from a postconviction order may be dismissed
if counsel has found no arguable issues and if the defendant has
not filed a supplemental brief. Where the defendant has filed a
supplemental brief, the Court of Appeal must evaluate any
arguments raised in the brief and issue a written opinion
disposing of the trial court’s order on the merits. As O’Neal has
filed a supplemental brief at our direction, we accordingly review
his contentions, without deciding whether Cole is correct in part
or whole.
Our Supreme Court is currently considering what
procedures appointed counsel and the Courts of Appeal should
follow when counsel determines that an appeal from an order
denying postconviction relief lacks arguable merit. (People v.
Delgadillo (Nov. 18, 2020, B304441 [nonpub. opn.]), review
granted Feb. 17, 2021, S266305.)
2
In 2006, O’Neal was convicted of various crimes and
sentenced to a 24-year term. As part of his sentence, the trial
court imposed a $200 restitution fine (Pen. Code,2 § 1202.4, subd.
(b)) and $2,700 in victim restitution (§ 1202.4, subd. (f)).
In 2008, his judgment of conviction was affirmed on appeal.
(People v. O’Neal (Feb. 29, 2008, B194332) [nonpub. opn.].)
Thereafter, the trial court improperly modified O’Neal’s
sentence via a nunc pro tunc order, so we ordered the trial court
to conduct a new sentencing hearing at which O’Neal and his
counsel had the right to be present. (In re O’Neal, Sr. (Nov. 21,
2017, B270878) [nonpub. opn.].) Per our remittitur, we vacated
the original 2006 sentence. Accordingly, in March 2018, the trial
court resentenced O’Neal to 22 years 4 months and reimposed the
original restitution fines and fees.
O’Neal appealed again, and this Division affirmed the
judgment. (People v. O’Neal (May 31, 2019, B289422 [nonpub.
opn.].) The California Supreme Court granted review but
dismissed review on June 17, 2020. The remittitur issued on
June 24, 2020. It does not appear that O’Neal filed a petition for
writ of certiorari in the United States Supreme Court.
On November 16, 2020, O’Neal moved to vacate or
eliminate the restitution fine and victim restitution under
Dueñas, supra, 30 Cal.App.5th 1157. Dueñas, at page 1164, held
that due process requires a trial court to conduct an ability-to-pay
hearing and ascertain a defendant’s ability to pay before
2All further undesignated statutory references are to the
Penal Code.
3
executing a restitution fine under section 1202.4.3 In his motion,
O’Neal argued that he had no ability to pay restitution. The trial
court denied the motion.
O’Neal then filed this appeal. However, the general rule is
that 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.) Once a defendant’s direct appeal has
concluded and the judgment is final, a trial court no longer has
jurisdiction to correct a sentence. (Torres, at p. 1088.) If an order
denying such a motion is nonappealable, it follows that any
appeal from the order must be dismissed. (Ibid.) Section 1237.2,
which contains an exception to the general rule, does not apply
when the defendant has filed a motion to correct his sentence
after his direct appeal concluded. (Torres, at pp. 1087–1088.)
As we have said, the Supreme Court issued its remittitur in
June 2020. O’Neal filed his motion in November 2020, after his
direct appeal had concluded and the judgment was final. We
therefore dismiss his appeal.
3 Our Supreme Court is reviewing whether a trial court
must consider a defendant’s ability to pay before imposing or
executing fines or fees and, if so, which party bears the burden of
proof. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted
Nov. 13, 2019, S257844.)
4
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICAL REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
HILL, J.*
* Judge of the Santa Barbara Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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