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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 DUVIGNEAUD,

Defendant and Appellant.

 B262565

 (Los Angeles County

 Super. Ct. No. A773412)

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

R. Brandlin, Judge. Affirmed.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

________________________________
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On January 26, 2015, Kirby Duvigneaud 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, he 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 the 

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 counsel 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 brief,

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 ibid.

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

fine. (See ibid. [noting that defendant 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 441-442, and is satisfied appellant’s attorney has 

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

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

1986 restitution order.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J. 

We concur:

WILLHITE, Acting P. J.

COLLINS, J.