Opinion
H048018
09-24-2021
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL LARS BREW, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 206491
We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Greenwood, P. J.
In 2007, defendant Emmanuel Lars Brew was found guilty of first degree murder, among other charges, and we affirmed the judgment on appeal in 2014. In 2019, Brew filed a pro se motion in the trial court for resentencing under Penal Code section 1170.95. The trial court denied the motion, and Brew appealed in June 2019. We appointed counsel, who filed an opening brief under People v. Serrano (2012) 211 Cal.App.4th 496. Brew requested that we review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende), but we concluded he was not entitled to Wende review, so we dismissed the appeal in August 2021.
People v. Brew (Apr. 23, 2014, H033658) [nonpub. opn.].)
People v. Emmanuel Lars Brew [H047156].
In December 2019, while Brew's appeal from the denial of resentencing was still pending in this court, he filed a pro se motion in the trial court requesting a hearing on his ability to pay fines and fees under People v Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The trial court denied the motion on the ground that Brew was represented by counsel at the time.
Brew now appeals from that denial. He contends the trial court erred because he had a right to file a pro se Dueñas motion in the trial court, notwithstanding the appointment of counsel to represent him on appeal in this court. The Attorney General contends the motion was untimely, regardless of the trial court's reasons for denying it.
We agree with the Attorney General. The fines and fees were imposed in the judgment of conviction from 2007, not the trial court's ruling denying the motion for resentencing. Brew's motion concedes the fines and fees at issue were imposed following his underlying conviction, which we affirmed years ago. The deadline for any appeal from that judgment has long since passed. The California Supreme Court denied Brew's petition for review, and we issued the remittitur in August 2014. Because the judgment of conviction is final, Brew is not entitled to the retroactive application of Dueñas. (Cf. In re Estrada (1965) 63 Cal.2d 740, 746-747 [changes in law that are beneficial to defendant are retroactive to cases not yet reduced to final judgment].) Furthermore, neither Penal Code section 1170.95 nor Penal Code section 1237.2 create a jurisdictional exception for a Dueñas claim here. (People v. Torres (2020) 44 Cal.App.5th 1081, 1085 (Torres) [court lacked jurisdiction to consider claim under Dueñas after judgment was final].)
In response, Brew concedes the Attorney General is “right about the timing, ” but he argues that an “unauthorized sentence” may be corrected at any time. (See People v. Scott (1994) 9 Cal.4th 331, 353-354 (Scott).) But the fines and fees were authorized at the time of sentencing, and the Scott doctrine does not make subsequent changes in the law retroactive to cases that are otherwise final. Nor does Scott create a jurisdictional exception for courts to consider untimely Dueñas claims under any of the applicable resentencing statutes. Brew argues the trial court could have addressed the merits of his claim on equitable grounds, but he cites no legal authority-equitable or otherwise-that would have empowered the court to grant his motion. Finally, Brew attempts to distinguish Torres but the holding of that opinion applies squarely to this case.
Accordingly, we will affirm the judgment.
Disposition
The judgment is affirmed.
WE CONCUR: Grover, J. Danner, J.