People v. Pelayo CA2/2

Filed 8/26/22 P. v. Pelayo CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B317900

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA021870) v.

SAUL PELAYO,

Defendant and Appellant.

THE COURT: Saul Pelayo appeals the order of the superior court denying his postjudgment motion to modify his sentence to stay or reduce the order to pay a $5,000 restitution fine. (Pen. Code,1 § 1202.4, subd. (b).) We appointed counsel to represent Pelayo on appeal. After examination of the record, counsel filed an opening brief raising no issues and requesting that we follow the procedures set forth in People v. Serrano (2012) 211 Cal.App.4th 496

1 Undesignated statutory references are to the Penal Code.

(Serrano). Pelayo filed a supplemental brief, in propria persona, on August 11, 2022. BACKGROUND In 1999, Pelayo was convicted by a jury of murder (§§ 187, subd. (a)) with personal use of a firearm (§ 12022.5, subd. (a)). On November 3, 1999, the trial court sentenced Pelayo to state prison for 25 years to life and imposed a $5,000 restitution fine pursuant to section 1202.4, subdivision (b). On direct appeal from the judgment, this court affirmed the conviction and sentence. (People v. Pelayo (Oct. 4, 2000, B137409) [nonpub. opn.].) The California Supreme Court denied review on December 20, 2000, and this court issued the remittitur in the case on January 4, 2001. On September 19, 2005, this court denied Peyalo’s petition for writ of habeas corpus in case No. B185594. In two subsequent appeals, we affirmed the denial of Pelayo’s postjudgment motion to strike the firearm enhancement (People v. Pelayo (Nov. 21, 2018, B290919) [nonpub. opn.]), and affirmed the summary denial of Pelayo’s petition for resentencing under section 1172.6 (former § 1170.95)2 (People v. Pelayo (Nov. 12, 2020, B303425 [nonpub. opn.]). On December 13, 2021, Pelayo filed a “Motion to Stay Execution of Restitution Fines” imposed under section 1202.4 on the ground that the restitution fine was unlawful because it was ordered without a determination by the court of his ability to pay (citing People v. Duenas (2019) 30 Cal.App.5th 1157). The superior court summarily denied the motion.