People v. Gonzalez CA2/1 ( 2014 )

Filed 6/24/14 P. v. Gonzalez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B253086
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA038714)
v.
URIEL GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Daniel
B. Feldstern, Judge. Affirmed.
Uriel Gonzalez, in pro. per.; and Larry Pizarro, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________________
In 2001, defendant Uriel Gonzalez was convicted of four counts of attempted
murder with findings he acted with premeditation and deliberation, personally fired a gun,
and personally fired a gun, causing great bodily injury. He was sentenced to three
consecutive life terms, plus 25 years to life, plus 40 years. The court imposed a $10,000
restitution fine under Penal Code section 1202.4, subdivision (b), and a matching $10,000
parole revocation fine under Penal Code section 1202.45, but it does not appear the court
ordered victim restitution.
In October of 2013, defendant filed “Points and Authorities in Support of Motion
for Modification of Sentence Pursuant to Penal Code § 1202.4, (f)(1).” In this document,
defendant challenged the Penal Code section 1202.4, subdivision (b) restitution fine on
the following grounds: (1) it denies him equal protection because persons serving life in
prison without possibility of parole are not subject to a Penal Code section 1202.45 parole
revocation fine, whereas he has to pay the Penal Code section 1202.4, subdivision (b)
restitution fine even though he will never be released from prison, given the length of his
sentence; (2) the trial court’s order did not itemize the restitution fine by victim and loss;
(3) California’s restitution laws are unconstitutional because their purpose is to
compensate crime victims for their losses, while “[t]he United States Supreme Court has
concluded, that the purpose of restitution is to accomplish the penal goals of the state,
[not] to compensate victims”; the trial court did not consider defendant’s ability to pay in
setting the amount of the restitution fine; and it is inappropriate to consider defendant’s
potential earnings in prison or any other potential earnings more than 60 days after the
judgment in determining his ability to pay.
The trial court denied defendant’s motion as untimely and including issues that
should have, but were not, raised on appeal. Defendant appealed the trial court’s order.
We appointed counsel to represent defendant on appeal. After examination of the
record, counsel filed an opening brief raising no issues and asking this court to
independently review the record. Defendant filed a single-page supplemental brief
summarily reiterating his argument about a 60-day window for future earning ability.
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The Penal Code section 1202.4, subdivision (b) restitution fine was not an
unauthorized sentence, and thus defendant was required to challenge it in the trial court
or, at the latest, in his original appeal in 2002. An unauthorized sentence is one that
cannot lawfully be imposed under any circumstances in the particular case. (In re Sheena
K. (2007) 40 Cal.4th 875, 887.)
Moreover, none of the arguments set forth in defendant’s motion has any merit. A
trial court must impose a Penal Code section 1202.4, subdivision (b) restitution fine
whether or not a defendant will be eligible for parole, and it may calculate that fine as the
product of the minimum fine ($200 at the time of defendant’s offenses), the length of the
prison term imposed, and the number of felony counts of which the defendant was
convicted. The statute expressly directs the court to consider, with respect to the amount
of the fine, “any relevant factors, including, but not limited to, the defendant’s inability to
pay, the seriousness and gravity of the offense and the circumstances of its commission,
any economic gain derived by the defendant as a result of the crime, the extent to which
any other person suffered losses as a result of the crime, and the number of victims
involved in the crime. Those losses may include pecuniary losses to the victim or his or
her dependents as well as intangible losses, such as psychological harm caused by the
crime. Consideration of a defendant’s inability to pay may include his or her future
earning capacity. A defendant shall bear the burden of demonstrating his or her inability
to pay. Express findings by the court as to the factors bearing on the amount of the fine
shall not be required. A separate hearing for the fine shall not be required.” (Pen. Code,
§ 1202.4, subd. (d).) A Penal Code section 1202.4, subdivision (b) restitution fine is
distinct from both a Penal Code section 1202.45 parole revocation fine, which need not
be paid unless a defendant’s parole has been revoked, and victim restitution. A Penal
Code section 1202.4, subdivision (b) restitution fine need not be itemized.
We have examined the entire record and are satisfied defendant’s attorney has
fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly
(2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25 Cal.3d 436, 441.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
MILLER, J.*
We concur:
ROTHSCHILD, Acting P. J.
JOHNSON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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