Filed 12/21/20 P. v. Thom pson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

D EWAN LEE THOMPSON

,

Defendant and Appellant. B 306159

(Los Angeles County

Super. Ct. No. SA041815)

APPEAL from a n 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

Tho m pson 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 th e

restitution fine

. He now appeals the trial court’s order denying

his motion

. B ecause the order is nonappealabl e, we dismiss the

appeal.

PROCEDURAL BACKGROUND 1

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 judg ment

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

t he California Supreme Court denied review in 2004. The

remittitur issued on September 28, 2004.

In 2019, Thompson , acting in propria per sona, 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 unauthoriz ed 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 T he 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 s everal

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 Oc tober 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 be4

dismissed. [Citations.]” ( People v. Torres , at p. 1084; see People

v. Fuimaono (2019) 32 Cal.App.5th 132, 135.)

Even if the order w ere 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, t he minimum

restitut ion fine under section 1202.4 was $2 00. ( See f ormer

§ 1202.4, subd. (b)(1) , S tats. 2000, ch. 198, § 4 .) Then, as now,

s ubdivis ion s (c) and (d) of section 1202.4 provide d that inability

to pay could be c onsidered 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 fi ne in his direct

appeal, which waived the issue. ( People v. Jordan (2018) 21

Cal.App.5th 1136, 1145.)

Nor is Thompson’s sente nce 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 (19 94) 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’s5

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 dismiss ed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

EDMON, P. J.

We concur:

LAVIN , J.

EGERTON

, J.