People v. Ybarra CA3

Filed 2/24/15 P. v. Ybarra CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C073604

v. (Super. Ct. No. 93F01290)

RUBEN YBARRA,

Defendant and Appellant.

Defendant Ruben Ybarra appeals from an order after judgment―entered nearly two decades after judgment was entered―denying his motion for a hearing to allow the trial court to reconsider the restitution fine previously imposed. We conclude the order is not appealable and dismiss the appeal.

1

BACKGROUND In 1993, defendant was convicted by jury of assault with a deadly weapon while confined in a state prison (Pen. Code, § 4501)1 and possession of a sharp instrument while confined in a state prison (§ 4502). The jury also found defendant was previously convicted of a serious felony offense within the meaning of section 667, subdivision (a). The trial court sentenced defendant to serve an aggregate determinate term of nine years in state prison and imposed other orders, including an order to pay a restitution fine in the amount of $1,800. Defendant did not challenge imposition of this fine at the sentencing hearing and did not appeal from the judgment. In 2013, defendant filed a motion in the trial court titled, “Motion for Restitution Hearing for Reconsideration of Ability to Pay and Constitutionality of Excessive Fines.” The motion requested a hearing to allow the trial court to reconsider the restitution fine, asserting the trial court “failed to consider [his] ability to pay, as well as the prohibition against excessive fines, when it imposed the restitution fine” in 1993. The trial court denied the motion. Defendant appeals. DISCUSSION Section 1237 provides in relevant part: “An appeal may be taken by the defendant: [¶] (a) From a final judgment of conviction . . . . A sentence . . . shall be deemed to be a final judgment within the meaning of this section. . . . [¶] (b) From any order made after judgment, affecting the substantial rights of the party.” Defendant appeals from the trial court’s denial of his post-judgment motion for a hearing to allow the trial court to reconsider the restitution fine previously imposed