Filed 12/28/21 P. v. Salcedo CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

EUSEBIO GOMEZ SALCEDO,

Defendant and Appellant.

 B312650

 (Los Angeles County

 Super. Ct. No. PA050808)

APPEAL from a postjudgment order of the Superior Court 

of the County of Los Angeles, Hayden Zacky, Judge. Dismissed.

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________________

In 2005, a jury found defendant Eusebio Salcedo guilty of 

attempted murder in violation of Penal Code sections 664 and 
2

187, subdivision (a);1 assault with a firearm in violation of section 

245, subdivision (a)(2); and shooting at an occupied vehicle in 

violation of section 246. The jury also found true the allegation 

that defendant personally inflicted great bodily injury on the 

victim within the meaning of section 12022.7, subdivision (a) and 

that defendant personally used, intentionally discharged, and 

caused great bodily injury with a handgun in violation of section 

12022.53, subdivisions (b), (c), and (d).

On the attempted murder conviction, the trial court 

sentenced defendant to life, plus a consecutive term of 25 years to 

life for the section 12022.53, subdivision (d) enhancement and 

imposed but stayed the remaining enhancements. The court also 

imposed a $10,000 restitution fine pursuant to section 1202.4, 

subdivision (b), an additional $10,000 parole restitution fine 

pursuant to section 1202.45, which it stayed pending successful 

completion of parole, and a $20 court security fee pursuant to 

section 1465.8, subdivision (a)(1).

On September 13, 2006, a prior panel of this Division 

affirmed defendant’s conviction in an unpublished opinion, but 

remanded the matter with instruction to amend the abstract of 

judgment. (People v. Gomez (Sep. 13, 2006, B187966) [nonpub. 

opn.].)

On April 9, 2021, defendant filed an ex parte motion to 

vacate his court security fees, conviction assessment, and 

restitution fines pursuant to People v. Dueñas (2019) 30 

Cal.App.5th 1157 (Dueñas), arguing, among other things, that 

the trial court erred by imposing the fines, fees, and assessments 

without first holding an ability to pay hearing. That same day, 

the court issued a ruling without hearing denying the motion on 

1 All further statutory references are to the Penal Code.
3

the grounds that, to the extent the motion was based on Dueñas, 

it was inapplicable because defendant’s case was final. The court 

also concluded that defendant had forfeited his challenge by 

failing to object to the fines and fees when they were imposed and 

on the additional ground that defendant would have the ability to 

earn wages in prison while serving his sentence from which he 

could pay the fines and fees. On May 17, 2021, defendant filed 

his notice of appeal.

We appointed counsel to represent defendant on appeal. 

On August 10, 2021, defendant’s counsel filed an opening brief in 

which he did not identify any arguable issues and requested that 

we follow the procedure set forth in People v. Serrano (2012) 211 

Cal.App.4th 496, (Serrano).

Defendant has appealed from a nonappealable order. 

“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 must be dismissed. [Citations.]”

(People v. Torres (2020) 44 Cal.App.5th 1081, 1084 (Torres); see 

also, People v. Jinkins (2020) 58 Cal.App.5th 707, 712.)

Because the execution of defendant’s sentence began well 

before he filed his postjudgment motion under Dueñas, supra, 30 

Cal.App.5th 1157, the trial court had no jurisdiction to rule on it. 

Its order denying the motion was therefore nonappealable, and 

the appeal from that order must be dismissed. (See Torres, 

supra, 44 Cal.App.5th at p. 1083 [order denying postjudgment 

motion to modify restitution fine based on inability to pay 

nonappealable].)
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The appeal is dismissed.

____________________________________________________________

RUBIN, P. J. BAKER, J. KIM, J.