DISCUSSION

On September 1, 2020, appointed counsel filed a brief in which he raised no issues and requested that we follow the procedures set forth in People v. Serrano (2012) 211 Cal.App.4th 496. We notified appellant that he could submit a letter or supplemental brief stating any grounds for appeal, arguments, or contentions that he wished this court to consider. Thereafter, Thompson presented to this court several letters complaining that his appointed counsel had failed to raise the issue of the restitution fine’s validity. He pointed out that the California Supreme Court is currently considering whether a trial court must consider a defendant’s ability to pay before imposing such a fine. (See People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) We deemed Thompson’s October 16, 2020 letter to be a supplemental brief, and therefore consider his contentions. (See People v. Cole (2020) 52 Cal.App.5th 1023, 1039–1040, review granted Oct. 14, 2020,

S264278.)

The trial court’s order is nonappealable. Generally, once a judgment is rendered and execution of the defendant’s sentence has begun, the trial court lacks jurisdiction to vacate or modify the sentence. (People v. Torres (2020) 44 Cal.App.5th 1081, 1084; People v. Hernandez (2019) 34 Cal.App.5th 323, 326.) “If the trial court does not have jurisdiction to rule on a motion to vacate or modify a sentence, an order denying such a motion is nonappealable, and any appeal from such an order must be

3 dismissed. [Citations.]” (People v. Torres, at p. 1084; see People v. Fuimaono (2019) 32 Cal.App.5th 132, 135.) Even if the order were appealable, Thompson’s claim has been forfeited. Thompson implicitly acknowledges that he failed to object or request an ability-to-pay hearing when the trial court imposed the fine. When he was sentenced, the minimum restitution fine under section 1202.4 was $200. (See former § 1202.4, subd. (b)(1), Stats. 2000, ch. 198, § 4.) Then, as now, subdivisions (c) and (d) of section 1202.4 provided that inability to pay could be considered when the court imposed a fine above the minimum. Thompson thus had a statutory right to an ability-to-pay determination at sentencing and an objection would not have been futile. By failing to object, he forfeited the claim. (See, e.g., People v. Miracle (2018) 6 Cal.5th 318, 356; People v. Gamache (2010) 48 Cal.4th 347, 409.) Moreover, Thompson did not challenge the restitution fine in his direct appeal, which waived the issue. (People v. Jordan (2018) 21 Cal.App.5th 1136, 1145.) Nor is Thompson’s sentence unauthorized, as he suggested in his motion below. The unauthorized sentence exception is “ ‘narrow’ ” and applies only where the sentence “ ‘could not lawfully be imposed under any circumstance in the particular case.’ ” (In re G.C. (2020) 8 Cal.5th 1119, 1130; People v. Scott (1994) 9 Cal.4th 331, 354; People v. Jordan, supra, 21 Cal.App.5th at p. 1145.) People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), held that due process requires that a trial court stay execution of a section 1202.4 restitution fine unless and until the People demonstrate a defendant has the ability to pay it. (Dueñas, at pp. 1171–1172.) Dueñas does not hold that a restitution fine can never be imposed, only that the defendant’s

4 ability to pay must appear as a predicate. (Id. at p. 1172.) Thus, the fine was not an unauthorized sentence. (See People v. Avila (2009) 46 Cal.4th 680, 729.) We are satisfied that Thompson’s attorney has fulfilled his responsibilities and conclude the appeal raises no arguable issues.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.

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