Opinion
NOT TO BE PUBLISHED
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Elias Regaldo Murillo appeals from the trial court’s order denying his motion to reduce the victim restitution awarded and fines imposed in case Nos. CRF070735 and CRF070067.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief arguing that the trial court failed to consider defendant’s ability to pay in awarding victim restitution in the amount of $5,700 and in imposing restitution fines totaling $2,600 and corresponding parole revocation restitution fines. Defendant further argues only hearsay evidence supported the victim restitution award other than the amount of $504.06 for lost wages and that the victim did not request restitution. He claims the trial court abused its discretion and that his due process rights were violated. Defendant requests that this court overturn and vacate the victim restitution award and reduce the fines to the statutory minimum of $200. Defendant also requests that this court replace defense appellate counsel who failed to “address all the issues that had to be brought up.”
The record on appeal is limited to a clerk’s transcript consisting of an amended abstract of judgment, defendant’s motion to reduce the restitution and fines, the minute order reflecting the trial court’s denial of the motion, and defendant’s notice of appeal.
The amended abstract reflects the following. In case No. CRF070735, defendant entered a plea to attempted murder and second degree burglary and, in connection with the attempted murder, admitted that he personally inflicted great bodily injury under domestic violence circumstances. In case No. CRF070067, defendant entered a plea to spousal abuse. Defendant was sentenced to state prison for an aggregate term of 10 years, that is, the midterm of seven years for attempted murder plus a three-year enhancement for infliction of great bodily injury in case No. CRF070735. The court imposed concurrent terms for the burglary offense in case No. CRF070735 and for the spousal abuse offense in case No. CRF070067. In case No. CRF070735, the court imposed a $2,000 restitution fine and a $2,000 parole revocation restitution fine. The court awarded $2,810.20 in victim restitution to Nancy M. In case No. CRF070067, the court imposed a $600 restitution fine and a $600 parole revocation restitution fine. The court awarded $2,924.97 in victim restitution to Nancy M.
On May 28, 2008, defendant filed a motion to reduce the amount of the victim restitution and the restitution fines. Defendant explained that he would have brought the motion sooner “had [he] understood the law.” He noted that when he was sentenced in case Nos. CRF070735 and CRF070067 on July 30, 2007, to state prison for an aggregate term of 10 years, the trial court imposed the restitution fines. He claimed that restitution to the victim was awarded after a hearing was held on March 7, 2008. He claimed that he did not have the ability to pay the fines or victim restitution at sentencing and that his financial situation had not changed. He argued that the ability to pay finding could not be implied from the record nor could it be implied that the trial court was aware that it had a duty to so find. Defendant argued the trial court’s omission violated his Fifth and Fourteenth Amendments right to due process.
The minute order reflects the following:
“The Court caused the following Minute Order to be entered into the record: [¶] The Court has received, read, and considered the defendant’s Motion to Reduce Restitution and Fines to Minimum Amount Provided by Law. Said motion is denied. [¶] The Court hereby directs the Clerk to serve a copy of this Minute Order to each party.” There were no appearances by counsel or defendant at the hearing on defendant’s motion nor was a court reporter present.
Defendant had the opportunity to challenge the restitution fines and parole fines on an appeal from the judgment which he states was entered on July 30, 2007. He cannot challenge these same fines from the denial of a motion to reduce or modify the fines. Although an order made after judgment affecting a defendant’s substantial rights is appealable (Pen. Code, § 1237, subd. (b)), the order insofar as it denied defendant’s motion to reduce the restitution and parole fines appears to be nonappealable because the appeal would bypass or duplicate an appeal taken from the judgment. (See People v. Thomas (1959) 52 Cal.2d 521, 527; People v. Gallardo (2000) 77 Cal.App.4th 971, 980-981.) In any event, the record on appeal is limited and does not support defendant’s contention that he has no ability to pay.
With respect to the victim restitution, based on the date given by defendant, he apparently failed to timely appeal from the March 7, 2008 order awarding victim restitution. Instead, he filed a motion to reduce the award on May 28, 2008. The trial court had recently heard the issue and defendant presented no basis to modify the award. (Pen. Code, § 1202.4, subd. (f).) In any event, defendant’s inability to pay has no impact on the amount of victim restitution. (Pen. Code, § 1202.4, subd. (g).)
We decline defendant’s request for appointment of new defense appellate counsel.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The order denying defendant’s motion to reconsider is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.