People v. Soto CA6

Filed 11/29/23 P. v. Soto CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050853 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS970158A)

v.

FIDEL RIOS SOTO,

Defendant and Appellant. THE COURT1 Defendant Fidel Rios Soto appeals an order denying his motion to vacate his restitution fine pursuant to Assembly Bill No. 1869 (2019-2020 Reg. Sess.) and Assembly Bill No. 177 (2021-2022 Reg. Sess.). For the reasons set forth below, we affirm the order. I. PROCEDURAL BACKGROUND2 On November 12, 2014, Soto was convicted by a jury of first degree murder. (Pen. Code, § 187, subd. (a).)3 The jury also found true the allegation that Soto had personally used a firearm. (§ 12022.5, subd. (a).)

1 Before Greenwood, P. J., Manoukian, J. and Adams, J. (Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution). 2 The facts of the offense are not relevant to the analysis and disposition of the appeal and therefore we have omitted them. 3 Undesignated statutory references are to the Penal Code.

The trial court sentenced Soto to 35 years to life on June 4, 2015. The court also ordered Soto to pay: a restitution fine in the amount of $5,000, under section 1202.4, subdivision (b); an additional restitution fine of $5,000 under section 1202.45, with that fine suspended unless parole is revoked; a court security fee of $40 under section 1465.8; and a criminal conviction assessment of $30 under Government Code section 70373. At Soto’s sentencing, the court did not impose an administrative fee under section 1202.4 or 2805.5 for the collection of the restitution fine. On direct appeal, this court modified the judgment to allow conduct credit for presentence confinement, and affirmed the judgment as modified. (People v. Soto (June 13, 2018, H042397) [nonpub. opn.].) On remittitur, the trial court modified the sentence to reflect the credits for presentence confinement, but otherwise left the sentence unchanged. On June 24, 2016, while his direct appeal was pending, Soto filed a motion for modification of sentence under section 1260, claiming that the restitution fine had been improperly imposed because there was insufficient evidence of his ability to pay. The trial court ruled that it lacked jurisdiction to take any action on the motion because the case was on appeal. On August 18, 2022, Soto filed a renewed motion to modify his sentence, once again arguing that there was insufficient evidence of his ability to pay the restitution fine. The trial court denied the motion as untimely. On January 20, 2023, Soto filed a motion to vacate unpaid restitution pursuant to Assembly Bill No. 1869 and section 1465.9, as amended by Assembly Bill No. 177. The court denied the motion on February 2, 2023, ruling as follows: “Request Denied. The Court did not impose any fees covered under AB 1869. Restitution Fines pursuant to 1202.4/2085.5 of the Penal Code are not included.” Soto timely appealed. On appeal, counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). We notified Soto that he could file a supplemental brief