People v. Suarez CA2/1 ( 2020 )

Filed 9/29/20 P. v. Suarez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B305883
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. MA062937)
v.
JUAN CARLOS SUAREZ,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa Mangay Chung, Judge. Dismissed.
Juan Carlos Suarez, in pro. per.; and Richard B. Lennon,
under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
____________________________
In 2015, Juan Carlos Suarez entered a negotiated plea of no
contest to a charge of possessing heroin in prison (Pen. Code, §
4573.6, subd. (a))1 based on an incident that happened in 2013.
(People v. Suarez (Aug. 24, 2016, B267996) [nonpub. opn.], p. 2.)
As part of his sentence, the trial court ordered Suarez to pay a
restitution fine of $1,200 under section 1202.4, subdivision (b)
and imposed and stayed an additional $1,200 parole, postrelease
community supervision, or mandatory supervision restitution
fine under section 1202.45. We affirmed the judgment in 2016.
(Suarez, at p. 4.)
On December 11, 2019, Suarez filed a motion in the trial
court challenging the two restitution fines based on People v.
Dueñas (2019) 30 Cal. App. 5th 1157 (Dueñas). Suarez requested
that the trial court stay the execution of the restitution fines
because the trial court did not make a finding that he was able to
pay the fines. The trial court denied Suarez’s motion on March
10, 2020.
Suarez timely appealed and we appointed counsel to
represent him on appeal. After examining the record, counsel
filed an opening brief raising no issues and asking this court to
independently review the record. (People v. Serrano (2012) 211
Cal. App. 4th 496; People v. Cole (2020) 52 Cal. App. 5th 1023.)
Counsel notified Suarez that he would be filing a brief, that
Suarez was entitled to file a supplemental brief with this court,
and that counsel remained available to brief any issues upon our
request. We also notified Suarez that he was entitled to file a
supplemental brief.
1 Further statutory references are to the Penal Code.
2
On September 2, 2020, Suarez filed a supplemental brief.
In it, he contends that Dueñas and People v. Belloso (2019) 42
Cal. App. 5th 647 (Belloso) allow him to challenge the restitution
fines the trial court imposed even after finality of the judgment
against him.
The question of whether a trial court must consider a
criminal defendant’s ability to pay before imposing or executing
fines, fees, and assessments is currently pending in our Supreme
Court. (See People v. Kopp (2019) 38 Cal. App. 5th 47, review
granted Nov. 13, 2019, S257844.) Regardless of whether Dueñas
applies to judgments that are not yet final, it does not apply to
judgments that were final before it was decided.2 (See In re
Gomez (2009) 45 Cal. 4th 650, 654-655.)
Trial courts do not have jurisdiction to grant a motion, filed
after execution of the defendant’s sentence has begun,
challenging the trial court’s failure to hold an ability-to-pay
hearing under Dueñas. (People v. Torres (2020) 44 Cal. App. 5th
1081, 1088.) The trial court’s order is not an appealable order,
and the appeal is therefore dismissed. (Ibid.)
2 Belloso does not alter our analysis. The judgment in
Belloso was not yet final when Dueñas was decided. (See Belloso,
supra, 42 Cal.App.5th at p. 653.)
3
DISPOSITION
The appeal is dismissed.
CHANEY, J.
We concur:
BENDIX, Acting P. J.
SINANIAN, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
4