Filed 11/3/15 P. v. Duvigneaud CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

KIRBY DUV IGNEAUD

,

Defendant and Appellant. B2 62565

(Los Angeles County Super. Ct. No. A773412 )

APPEAL from a n order of the Superior Court of Los Angeles County, James

R. Brandlin , Judge. Affirmed.

Siri Shetty

, under appointment by the Co urt of Appeal

, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

________________________________2

On January 2 6 , 2015, Kirby Duvignea ud filed a motion to modify a $5

, 000

restitution fine imposed in 1986. He argued that the probation report established

his present and future inability to pay a $5,000 fine. Although acknowledging that

the sentencing court had considered the probation report, h e contended that the

court had abused its discretion in setting the amount of the fine at $5

, 000. He
requested that the trial court reduce the restitution fine to $200 , the minimum

amount statutorily required

. The trial court denied the motion, holding that it was untimely, that

Duvigneaud had waived the issue by failing to make a timely objection to t he

amount of the fine , and that he had failed to show the sentencing court had abused

its discretion in setting the amount.
Duvigneaud noticed an appeal from the trial court’s order denying his

motion. After examining the record, appointed appellate cou nsel filed a brief

raising no issues, but asking this court to independently review the record on

appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441

- 442. (See Smith v.

Robbins (2000) 528 U.S. 259, 264.) Appellant filed a supplemental letter bri ef,

asserting the same arguments he had made in his motion to modify the restitution

order. Appellant never addressed the timeliness of his motion.

When appellant was sentenced in 1986 , the relevant statutes authorized the

sentencing court to consider a defendant’ s ability to pay in imposing a restitution

fine. ( See People v. Williams (2015) 61 Cal. 4th 1244, 1291 [citing former Pen.

Code, § 1202.4, subd. (a); former Pen. Code, § 13967, subd. (a)] .) The record

indicates that appellant did not raise the instant claim

-- that the trial court failed to

consider his ability to pay

-- during his sentencing. Rather, he raised it for the first

time in the instant matter. Accordingly, he has forfeited the claim. ( See i bid

. [failure to raise claim of inability to pay restitution fine at sentencing results in

forfeiture of claim]. ) Moreover, appellant has not produced a sufficient record to3

demonstrate that the trial court failed to consider his ability to pay the restitution

fine. (See ibid . [noting that defe ndant failed to produce facts showing that
sentencing court did not properly exercise its authority to consider defendant’s

ability to pay fine].)

This court has examined the entire record in accordance with People v.

Wende

, supra , 25 Cal.3d at pages 441

- 4 42 , and is satisfied appellant’ s attorney has

fully complied with the responsibilities of counse l, and that no arguable issues

exist . Accordingly, we affirm the order denying appell ant’s motion to modify the

1986 restitution order

. DISPOSITION

The order i s affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

COLLINS, J.