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Filed 5/23/24 P. v. Thompson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TRAVIS THOMPSON,

Defendant and Appellant.

C099709

(Super. Ct. No. 16FE010268)

Defendant Travis Thompson appeals from a postjudgment order denying his 

motion for a hearing to reconsider his ability to pay a $10,000 restitution fine originally 

imposed when he was sentenced in 2017. The trial court denied the motion on the 

grounds that it lacked jurisdiction to hear it because defendant had begun serving his 

sentence and his judgment was long final. While this is not his first appeal as of right, 

defendant’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 

436 (Wende) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), asking this 
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court to independently review the record to determine if there are any arguable errors that 

would result in a disposition more favorable to defendant. Counsel’s Wende brief 

acknowledged that there may be a question regarding the appealability of the order 

defendant challenges. 

Defendant filed a supplemental brief arguing that he had not been given an ability 

to pay hearing to determine whether he could pay the Penal Code section 1202.4 

restitution fine in violation of due process. (Unless otherwise stated, statutory section 

citations that follow are to the Penal Code.) After considering the order’s appealability, 

we conclude the trial court lacked jurisdiction to entertain defendant’s motion and that 

defendant’s appeal must be dismissed.

FACTS AND HISTORY OF THE PROCEEDINGS

While defendant was incarcerated in 2016, correctional officers observed another 

inmate pass him an object that he appeared to place in his sock. A subsequent search of 

defendant’s person revealed that defendant had a plastic object sharpened to a point in his 

sock. During the search, defendant physically assaulted a correctional officer, punching 

him several times before being subdued. 

A jury found defendant guilty of battery on a nonconfined person (§ 4501.5, count 

one); and possession of an inmate manufactured weapon (§ 4502, count two). The jury 

found true the allegation that defendant was armed with a stabbing weapon during the 

battery offense (§§ 667, subd. (e)(20(C)(iii), 1170.12, subd. (C)(2)(C)(iii)), and the trial 

court found two prior strike allegations true (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)). 

Defendant was sentenced to 25 years to life in prison for count one, to be served

consecutively to any other sentence defendant was already serving; and a four-year term 

on count two was stayed (§ 654). The trial court imposed a $10,000 restitution fine 

(§ 1202.4) and an identical parole revocation restitution fine, which was suspended unless 

parole was revoked. (§ 1202.45.) 
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Defendant appealed, and his appointed appellate counsel filed a Wende brief 

raising no issues but asking this court to review the record to determine whether there 

were any arguable issues on appeal. (See People v. Thompson (Nov. 26, 2018, C084825) 

[nonpub. opn.].) Defendant filed a supplemental brief raising the following issues: (1) 

he was the victim of discriminatory prosecution, (2) there was a code of silence that 

violated his due process rights to present a defense, (3) he was improperly forced to 

represent himself after his People v. Marsden (1970) 2 Cal.3d 118 motion was denied, (4) 

the denial of a corrections expert witness violated his right to due process, and (5) a 

correctional officer committed perjury to avoid qualifying as an expert witness for the 

defense. (Thompson, supra, C084825.) We rejected defendant’s appellate contentions 

and affirmed the judgment. (Ibid.)

Nearly five years later, in May 2023, defendant filed a “motion for restitution 

hearing for reconsideration of ability to pay and constitutionality of excessive fines,” 

arguing that the trial court failed to consider his ability to pay the $10,000 restitution fine 

or to determine if it was excessive. In August 2023, the trial court denied the motion in a 

minute order, finding that it lacked jurisdiction to consider the motion because 

defendant’s sentence had already commenced. In October 2023, defendant appealed 

without a certificate of probable cause. 

DISCUSSION

In Wende, our Supreme Court held that “Courts of Appeal must conduct a review 

of the entire record whenever appointed counsel submits a brief on direct appeal which 

raises no specific issues or describes the appeal as frivolous.” (Delgadillo, supra, 

14 Cal.5th at p. 221; Wende, supra, 25 Cal.3d at p. 441.) The Wende procedure applies to 

the first appeal as of right and is compelled by the constitutional right to counsel under 

the Fourteenth Amendment of the United States Constitution. (Wende, at pp. 439, 441.)
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In Delgadillo, our Supreme Court held that Wende independent review is not 

constitutionally required in an appeal from a postconviction order denying a section 

1172.6 petition for resentencing. (Delgadillo, supra, 14 Cal.5th at pp. 222, 224-225, 231, 

fn. 5.) The Delgadillo court also prescribed guidance for considering an appeal from an 

order denying a section 1172.6 petition where counsel finds no arguable issues to be 

pursued on appeal. (Delgadillo, at p. 232.) When a defendant has been notified that his 

appeal of the postconviction order may be dismissed, the reviewing court must evaluate 

the specific arguments presented in any supplemental brief the defendant files, but the 

court is not compelled to independently review the record for error (although it may 

exercise its discretion to do so). (Ibid.)

While Delgadillo addressed the application of Wende’s review procedures in the 

specific context of a postconviction relief order under section 1172.6, which is not the 

type of postconviction order at issue here, the same principles may nonetheless apply 

given that this is not defendant’s first appeal as of right. Defendant has filed a 

supplemental brief challenging the $10,000 restitution fine originally imposed under 

section 1202.4, and, as best we can discern, he contends the restitution fine violates due 

process because he was not afforded an ability to pay hearing. To support his argument, 

defendant cites various provisions of the California constitution and penal statutes that 

were all in effect when he was sentenced in May 2017. 

Before applying Delgadillo’s guidance to consider the issue in defendant’s 

supplemental brief, however, we first turn to whether the trial court had jurisdiction to 

consider defendant’s motion challenging the restitution fine under section 1202.4. As the 

trial court noted, judgment was entered in May 2017 and defendant had already begun 

serving his sentence. 

In People v. Turrin (2009) 176 Cal.App.4th 1200, this court held that a trial court 

lacked jurisdiction to consider a defendant’s motion to modify a restitution fine once that 

defendant had begun serving his sentence. (Turrin, at pp. 1205-1209; see also People v. 
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Howard (1997) 16 Cal.4th 1081, 1089 [“generally a trial court lacks jurisdiction to 

resentence a criminal defendant after execution of sentence has begun”].) Because the 

trial court lacked jurisdiction to modify the restitution fine, the Turrin court found that the 

trial court’s order denying the defendant’s motion requesting the same did not affect the 

defendant’s substantial rights and was not an appealable postjudgment order. (Turrin, at 

p. 1208.) The court therefore dismissed the appeal. (Id. at pp. 1208-1209.)

The same rationale applies here. Defendant’s judgment, including the restitution 

fine, was long since final, having been affirmed on appeal in 2018. (People v. Thompson, 

supra, C084825.) The sentence, moreover, was executed immediately at the initial 

sentencing hearing and defendant was remanded into custody forthwith. Thus, he had 

already begun serving his sentence when he moved the trial court for relief from the 

$10,000 restitution fine.

When the trial court denied his motion in August 2023, it had no statutory 

authority to recall and modify defendant’s sentence. At that time, section 1172.1 

(formerly section 1170.03), which governs the recall of sentences, provided in relevant 

part: “[w]hen a defendant, upon conviction for a felony offense, has been committed to 

the custody of the Secretary of the Department of Corrections and Rehabilitation . . . the 

court may, . . . within 120 days of the date of commitment . . . on its own motion, . . . at 

any time upon the recommendation of the secretary or the Board of Parole Hearings in 

the case of a defendant incarcerated in state prison . . . [or] the district attorney of the 

county in which the defendant was sentenced, . . . recall the sentence and commitment 

previously ordered and resentence the defendant in the same manner as if they had not 

previously been sentenced, whether or not the defendant is still in custody, and provided 

the new sentence, if any, is no greater than the initial sentence.” (§ 1172.1, subd. (a)(1); 

Stats. 2022, ch. 58, § 9.)

Effective January 1, 2024, section 1172.1 was amended to provide that the trial 

court may, on its own motion, within 120 days of the date of commitment or at any time 
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if the applicable sentencing laws at the time of the original sentencing are subsequently 

changed by new statutory authority or case law, recall the sentence and commitment 

previously ordered and resentence the defendant in the same matter as if they had not 

previously been sentenced. (§ 1172.1, subd. (a)(1); Stats. 2023, ch. 795, § 1.5.)

More than 120 days had elapsed since defendant was committed, and nothing in 

the record shows the Board of Parole Hearings or the district attorney ever recommended 

that defendant’s sentence be recalled. Even if the most recent version of section 1172.1 is 

applied—allowing the trial court to recall a sentence at any time on its own motion if the 

sentencing laws have changed—section 1202.4 governing restitution fines has not 

changed.

When defendant was sentenced in May 2017, section 1202.4, subdivision (b) 

provided (as it does now)1that “[i]n every case where a person is convicted of a crime, 

the court shall impose a separate and additional restitution fine, unless it finds compelling 

and extraordinary reasons for not doing so and states those reasons on the record.” Under 

the statute, the minimum restitution fine is $300, and the maximum fine is $10,000. 

(§ 1202.4, subd. (b)(1).) While an inability to pay cannot be considered a compelling and 

extraordinary reason not to impose a restitution fine under section 1202.4, the statute 

expressly allows a trial court to consider a defendant’s inability to pay when “increasing 

the amount of the restitution fine in excess of the [$300] minimum . . . .” (§ 1202.4, 

subd. (c).) Indeed, in setting the amount of the restitution fine above the minimum, the 

court must consider any relevant factors, including, but not limited to, the defendant’s 

ability to pay, and the defendant bears the burden of demonstrating his inability to pay. 

1 The current statutory language of section 1202.4, subdivisions (b), (c), and (d), with 

minor exceptions not relevant here, is the same as it was when defendant was sentenced 

in May 2017. (Compare Stats. 2016, ch. 37, § 3 with Stats. 2021, ch. 257, § 20.) We cite 

to the current version of the statute for ease of reference.
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(§ 1202.4, subd. (d).) Thus, defendant, then as now, could have challenged the $10,000 

based on inability to pay grounds. Because no change in the law has occurred, even the 

current version of section 1172.1 does not provide any authority to recall defendant’s 

sentence.

We also note that because defendant could have, but did not, challenge the 

$10,000 restitution fine in his prior direct appeal of the judgment (see People v. 

Thompson, supra, C084825), he may not do so in this second appeal. (People v. Senior 

(1995) 33 Cal.App.4th 531, 538 [“where a criminal defendant could have raised an issue 

in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal 

absent a showing of justification for the delay”]; People v. Jordan (2018) 21 Cal.App.5th 

1136, 1141, 1144-1145 [concluding that because the defendant did not raise the penalty 

assessment claims in his original appeal, he could not raise them in a subsequent appeal].)

Section 1237, subdivision (b) provides that a defendant may appeal “[f]rom any 

order made after judgment, affecting the substantial rights of the party.” Since the trial 

court lacked jurisdiction to modify the restitution fine, its order denying defendant’s 

motion requesting such relief could not affect his substantial rights and is not an 

appealable postjudgment order. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-

1726.) Dismissal of the appeal is therefore warranted.
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DISPOSITION

The appeal is dismissed. 

 

HULL, Acting P. J.

We concur:

 

MAURO, J.

 

WISEMAN, J.



 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by

the Chief Justice pursuant to article VI, section 6 of the California Constitution.