Filed 12/21/20 P. v. Thompson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DEWAN LEE THOMPSON,

Defendant and Appellant.

B306159

(Los Angeles County

Super. Ct. No. SA041815)

APPEAL from an order of the Superior Court of Los 

Angeles County, Leslie E. Brown, Judge. Appeal dismissed.

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________
2

A jury convicted defendant and appellant Dewan Lee 

Thompson of murder and other offenses. The trial court 

sentenced him to life in prison without the possibility of parole 

(LWOP) and imposed a $10,000 restitution fine. In 2019, 

Thompson unsuccessfully moved in the trial court to modify the 

restitution fine. He now appeals the trial court’s order denying 

his motion. Because the order is nonappealable, we dismiss the 

appeal.

PROCEDURAL BACKGROUND1

Thompson shot and killed his pregnant girlfriend when she 

tried to leave their apartment with one of her children. A jury 

convicted him of first degree murder, discharging a firearm at an 

inhabited dwelling, kidnapping, and assault with a firearm on a 

peace officer. The trial court sentenced him to LWOP, plus 55 

years to life. It also imposed a $10,000 restitution fine. 

(§ 1202.4, subd. (b).) This court affirmed Thompson’s judgment

(People v. Thompson (B167923, July 9, 2004) [nonpub. opn.]), and 

the California Supreme Court denied review in 2004. The 

remittitur issued on September 28, 2004.

In 2019, Thompson, acting in propria persona, moved to 

modify the restitution fine. He argued that he was indigent, and 

imposition of the fine without an ability-to-pay determination 

violated his federal constitutional and state law rights. He urged 

that the “issue has not been waived by any perceived failure of 

the defendant inmate to object at the time of sentencing” because 

the fine amounted to an unauthorized sentence.

1 We derive this information primarily from this court’s 

unpublished opinion in Thompson’s direct appeal, of which we 

take judicial notice. (Evid. Code, §§ 452, subd. (d), 459.)
3

The trial court denied the motion on the ground that the 

issue should have been raised in Thompson’s direct appeal.

Thompson filed a timely notice of appeal.

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 
4

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 
5

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.