Filed 9/27/21 P. v. Brown CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPH ER ANTHONY BROWN

,
Defendant and Appellant. B 31 2864

(Los Angeles County Super. Ct. No. MA037315 )

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County

, Lisa Strassner

, Comissioner

. Affirmed

. Richard B. Lenn on , under appointment by the Court of Appeal, for Defendant and Appellant

. No appearance by Plaintiff and Respondent.

___________

_____2 Christopher Anthony Brown was convicted following a jury trial in 2014 of two counts of first degree murder with tru e findings on a multiple

- murder special

- circumstance allegation
and firearm

- use enhancements. He was sentenced to

two consecutive indeterminate state prison terms of life without parole plus two consecutive terms of 25 years to life. In addition,

at sent encing the court ordered Brown to pay direct victim restitution of $2,964 and imposed statutory fines, fees and assessments, including the maximum restitution fine of $10,000. We affirmed the convictions and sentence on appeal. ( People v.
Brown (March 8, 2016, B255316) [nonpub. opn.].) In April 2021 Brown, representing himself, filed a motion to vacate the fines, fees and assessments imposed at sentencing, purportedly pursuant to Penal Code section 1237.2, 1 arguing the
trial court had not considered his a bility to pay the amounts imposed as required by this court’s decision in People v. Dueñas (2019) 30 Cal.App.5th 1157. The superior court denied the motion on May 4, 2021, explaining Brown had the opportunity

1 Penal Code section 1237.2 authorizes the trial court to
correct a ny error in the imposition or calculation of fines, assessments, fees or costs while the defendant’s direct appeal from the judgment of conviction is pending. It does not confer jurisdiction for the court to hear a motion to vacate or modify a sentence lo ng after the judgment is final. Indeed, a trial court generally has no jurisdiction to modify a defendant’s sentence after execution of the sentence has begun ( People v. Karaman (1992) 4 Cal.4th 335, 344; People v. Hernandez (2019) 34 Cal.App.5th 323, 326 ) , and an order denying such a motion can properly be dismissed as nonappealable. ( People v. Torres (2020) 44 Cal.App.5th 1081, 1084.)3

but did not object to imposition of a restitut ion fine above the statutory minimum based on his inability to pay. Brown filed a timely notice of appeal

. In accord with the procedures described in People v. Cole (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, w e appointed

counse l to represent him. After a r eview o f t h e r e c ord, Brown’s

ap poi n ted appellate cou n sel did n ot iden t ify any arguable i s sues

a n d s o i n fo r m ed th i s cour t . On August 10, 2021 appointed
counsel advised Brown he could p e r s o n all y s u bmit any

co n t entio n s he believ ed the court sho u ld con s ide r . We sent a
similar notice on the same date. On September 16, 2021 Brown filed a nine

- page typed supplemental brief arguing the superior court prejudicially erred in denying his motion to vacate the restitution fine based on his indigency

. Brown asserted imposition of the $10,000 restitution
fine without determining his ability to pay violated his constitutional rights, as set forth in this court’s decision in People
v. Dueñas

, supra , 30 Cal.App.5th 1157 and decisions from ot her courts of appeal that have employed an excessive fines, rather than a due process, analysis

. Citing our decision in People v.
Castellano (2019) 33 Cal.App.5th 485 , Brown also argued his failure to raise his inability to pay at his sentencing hearing i n 2014 did not forfeit his constitutional claim because Dueñas announced a constitutional principle that could not have been reasonably anticipated. However, as the superior court explained in denying Brown’s motion, Penal Code section 1202.4, which
manda tes imposition of a restitution fine following a felony conviction, expressly authorized the court to consider a defendant’s inability to pay when increasing the amount of the restitution fine above the $300 statutory minimum. (Pen. Code,4

§ 1202.4, subd. (c).) Brown thus had the opportunity to raise his inability to pay and failed to do so. The superior court properly
denied Brown’s motion. Because no cognizable legal issues have been raised by
Brown ’s appellate counsel or by Brown or identified in our
i ndependent review of the record, the order denying the postjudgment motion is affirmed. (See People v. Cole

, supra , 52 Cal.App.5th at pp. 1039

- 1040, review granted; see also People
v. Serrano (2012) 211 Cal.App.4th 496, 503; see generally People v. Kelly (2006) 40 Cal.4th 106, 118

- 119; People v. Wende (1979)

25 Cal.3d 436, 441

- 442 .)

DISPOSITION

The post judgment order is affirmed.

PERLUSS, P. J.
We concur:

S EGAL, J.

FEUER, J.