People v. Diaz-Rivero CA2/3

Filed 9/17/20 P. v. Diaz-Rivero CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B305684

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA063442) v.

CARLOS DIAZ-RIVERO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Appeal dismissed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _________________________

In 2015, defendant and appellant Carlos Diaz-Rivero pled no contest to attempted murder. The trial court imposed a restitution fine of $3,000, as well as a criminal conviction assessment and a court security fee. In 2020, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Diaz-Rivero unsuccessfully moved in the trial court for modification of the restitution fine. He appeals the court’s order denying the motion. Because the order is nonappealable, we dismiss the appeal. PROCEDURAL BACKGROUND On August 18, 2015, Diaz-Rivero pled no contest to attempted murder, with a firearm enhancement. (Pen. Code, §§ 664, 187, subd. (a), 12022.5, subd. (a).)1 The trial court, the Hon. Christopher G. Estes, sentenced Diaz-Rivero to a term of 15 years, in accordance with the plea agreement. Without objection, the court imposed a restitution fine of $3,000, a suspended parole revocation restitution fine in the same amount, a $30 criminal conviction assessment, and a $40 court operations assessment. This court affirmed the judgment in November 2016. (People v. Rivero (Nov. 4, 2016, B267288) (nonpub. opn.).) The remittitur issued on January 17, 2017. On January 8, 2020, Diaz-Rivero, acting in propria persona, moved to modify the restitution fine based on Dueñas. He argued that under Dueñas, the court was required to conduct an ability- to-pay hearing before imposing such a fine, his sentence was unauthorized, and such a hearing should be held or the restitution fine reduced. The Hon. Daviann L. Mitchell denied the motion in a written order filed on January 23, 2020. Among other things, the court reasoned that the trial court must have