People v. Molina CA2/4

Filed 11/18/21 P. v. Molina 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B310561 Plaintiff and (Los Angeles County Respondent, Super. Ct. No. BA369149) v.

ERIK ORLANDO MOLINA, Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

INTRODUCTION Appellant Erik Molina filed a post-judgment motion in the trial court seeking to vacate the restitution fines imposed, asserting that the court failed to consider his ability to pay them. The trial court denied appellant’s motion, and he timely appealed. His court-appointed counsel filed an opening brief raising no issues and invoking People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Appellant filed a supplemental brief. Following Serrano, supra, 211 Cal.App.4th at p. 503, we consider only the issues raised by appellant in his supplemental brief. We conclude that appellant has not established reversible error and therefore affirm. BACKGROUND In 2013, a jury convicted appellant of one count of second degree murder (Pen. Code, § 187, subd. (a), count one)1 and one count of manslaughter (§ 192, subd. (a), count two). The jury acquitted appellant of a third count of attempted murder (§§ 664, 187, subd. (a), count three). The jury found true the allegations that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury and death (§ 12022.5, subd. (d), count one), and that he committed the manslaughter to benefit a gang (§ 186.22, subd. (b)(1)(c), count two). The court also found appellant had suffered one prior serious or violent “strike” conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)–(i)) that also qualified as a prior serious felony conviction (§ 667, subd. (a)(1). On November 13, 2013, the court sentenced appellant to a prison term of 60 years to life plus 20

1. All further statutory references are to the Penal Code unless otherwise indicated.

2

years as follows: 15 years to life on count one, doubled for the prior strike, plus 25 years to life for the firearm enhancement, plus a five-year enhancement for the prior serious felony conviction pursuant to section 667, subdivision (a)(1); and the upper term of 11 years on count two, doubled for the prior strike, to run consecutively to count one. The court also imposed $80 in court security assessments (§ 1465.8, subd. (a)(1), $60 in criminal convictions assessments (Gov. Code § 70373), a $280 restitution fine (§1202.4, subd. (b)), a $280 parole restitution fine (§ 1202.45, stayed), and $17,700.74 in victim restitution, plus ten percent interest from the day of sentencing (§ 1202.4, subd. (f)). We affirmed the judgment in our prior unpublished decision, People v. Molina (Aug. 17, 2015, B253056) [nonpub.opn.]. In December 2020, appellant filed a petition for writ of habeas corpus and a motion for modification of his sentence.2 In both his petition and motion, appellant challenged the imposition of the restitution fine and victim restitution. As relevant here, he argued that this restitution should be reversed because he was indigent and the court failed to consider his ability to pay. The trial court denied appellant’s petition. The court found his claim “clearly untimely and wholly lacking in merit,” rejecting appellant’s reliance on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) as a “much criticized opinion and not persuasive authority.” Appellant appealed.