Filed 6/10/16 P. v. Martinez CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H043122
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS112248, SS120012
                                                                     & SSC110191)
             v.

ALEX SANDOVAL MARTINEZ,

         Defendant and Appellant.



         In 2012, appellant was sentenced to 10 years 8 months in state prison after he
plead guilty to first degree burglary with a gang enhancement (Pen. Code, §§ 186.22,
subd. (b)(1)(B), 459), second degree robbery with an enhancement for committing the
felony while on bail or on his own recognizance on a felony, (Pen. Code, §§ 211,
12022.1), and of evading a peace officer. (Veh. Code, § 2800.2, subd. (a).)
         On September 14, 2015, appellant filed a motion for modification of his sentence.
Specifically, he sought to reduce the restitution fine, though he included in the amount
the victim restitution. He argued the motion could be brought at any time because the
order was unauthorized, and the order was unauthorized because he lacked the ability to
pay. He sought to reduce the total amount to $200. The court denied relief on
November 4, 2015. Appellant filed a timely notice of appeal on December 23, 2015.
         On appeal, we appointed counsel to represent appellant in this court. Appointed
counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496
(Serrano), which states the case and the facts but raises no specific issues. Pursuant to
Serrano, on February 19, 2016, we notified appellant of his right to submit written
argument in his own behalf within 30 days. On February 19, 2016, we received a
supplemental brief from appellant. In his supplemental brief, appellant contends that the
court abused its discretion in imposing a restitution fine because there was insufficient
evidence of his ability to pay and that this sentencing error constitutes an unauthorized
sentence. Appellant further contends that the court’s refusal to remedy the error is a
violation of his due process rights. The trial court ordered appellant to pay a restitution
fine of $240 pursuant to Penal Code section 1202.4, subdivision (b), and victim
restitution in the amount of $8,700 pursuant to Penal Code section 1202.4,
subdivision (f).1 The court was not authorized to consider the appellant’s ability to pay
       1
          Penal Code section 1202.4, states in relevant part, “(b) In every case where a
person is convicted of a crime, the court shall impose a separate and additional restitution
fine, unless it finds compelling and extraordinary reasons for not doing so and states
those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense. If the person is convicted of
a felony, the fine shall not be less than two hundred forty dollars ($240) . . . . [¶] (2) In
setting a felony restitution fine, the court may determine the amount of the fine as the
product of the minimum fine pursuant to paragraph (1) multiplied by the number of years
of imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.
       “(c) The court shall impose the restitution fine unless it finds compelling and
extraordinary reasons for not doing so and states those reasons on the record. A
defendant’s inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the minimum fine pursuant to
paragraph (1) of subdivision (b). . . .
       [¶] . . . [¶]
        “(f) Except as provided in subdivisions (q) and (r), in every case in which a victim
has suffered economic loss as a result of the defendant’s conduct, the court shall require
that the defendant make restitution to the victim or victims in an amount established by
court order, based on the amount of loss claimed by the victim or victims or any other
showing to the court. . . .
       [¶] . . . [¶]
                                              2
because it ordered appellant to pay only the minimum restitution fine amount authorized
by statute. (Pen Code § 1202.4, subd. (c).) Further, in awarding victim restitution
pursuant to Penal Code section 1202.4, subdivision (f), the court did not have the
discretion to consider appellant’s ability to pay. (Pen Code § 1202.4, subd. (g).) The
fines imposed comport with the statutory scheme, so the sentence was not unauthorized.
Therefore, the court did not abuse its discretion in denying the motion for modification of
sentence. As nothing in appellant’s supplemental brief raises an arguable issue on
appeal, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)

                                       DISPOSITION
       The appeal is dismissed.




       “(g) The court shall order full restitution unless it finds compelling and
extraordinary reasons for not doing so and states those reasons on the record. A
defendant’s inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution order, nor shall inability to pay be a consideration in
determining the amount of a restitution order.” (Emphasis added.)

                                             3
                                    _____________________________________
                                               RUSHING, P.J.




WE CONCUR:




_________________________________
      PREMO, J.




_________________________________
      ELIA, J.




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