Filed 11/18/20 P. v. Laws CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN KEITH LAWS,

Defendant and Appellant. B305780
(Los Angeles County
Super. Ct. No. KA008785)

APPEAL from a judgment of the Superior Court of Los Angeles

County, Stacy Wiese, Judge. D ismissed.

Richard B. Lennon, under appointment by the Court of Appeal, for

Defendant and Appellant.

No appearance for Plaintiff and Respondent.2

Brian Keith Laws appeals from the denial of the most recent of

several motion s to vacate or stay a restitution order impose d when he

was sentenced in 1993

. Here, as before , he has filed an appeal from a

nonappealable o rder denying such relief , and w e dismiss the appeal.

FACTUAL AND PROCEDURAL SUMMARY

In 1993, Laws was convicted of first degree murder (Pen. Code

, § 187, subd. (a) )

, 1 second degree robbery (§ 211) and special allegations

were found true regarding his use of a firearm as to both counts

(§ 12022.5, subd. (a)). He was sentenced to life in prison without

possibility of parole , plus four years

. The trial court also ordered Laws

to pay a restitution fine o f $7,500

, pursuant to former Government Code

section 13967. We affirmed Laws’ conviction . ( People v. Laws (June 30,

1994, B075311) [nonpub. opn.].)

In 2009, Laws filed a request in pro

. per

. seeking relief from

pa ying restitution. That request was denied. ( See People v. Laws (April

14, 2014, B249705) [nonpub. opn.] 2014 WL 1455183.) In 2013

, Laws

appealed after unsuccessfully mov ing to strike the $7,500 restitution

fine, or to reduce it to the minimum amount of $200 arguing, among

other things, that a defendant ’ s inability to pay may constitute

compelling circumstances for waiver of a restitution fine. We appointed

counsel who filed an appellate brief raising no issues and asked this

court independently to revie w the record on appeal. ( People v. Wende

1 Undesignated statutory references are to the Penal Code.3

(1979) 25 Cal.3d 436, 441

– 442 ( Wende ).) We dismissed that appeal on

the ground that an order denying a motion to strike or modify the

restitution fine was not appealable after a defendant has begun serving

his sen tence , based on the reasoning articulated in People v. Turrin

(2009) 176 Cal.App.4th 1200 , 1205, 120 7 [“A defendant may not contest

the amount, specificity, or propriety of an authorized order of a

restitution fine for the first time on appeal [citations] let alone in a

motion to modify the same in the trial court after it has lost

jurisdiction”].) ( People v. Laws , supra, 2014 WL 1455183 at p. * 2. )

In 2020, Laws again asked the trial court to stay the $7,500

restitution fine , and conduct a hearing on his ability to pay, citing

People v. Dueñas (2019) 30 Cal.App.5th 1157 ( Dueñas ). In pertinent

part, Laws argued the trial court never determined his ability to pay at

the time of sentencing and, at his prison pay rate of 11 cents per hour,

he c annot afford a nd w ill never pay off the restitution fine. The trial

court denied the motion on the ground that Laws’ “ request w as

previously considered and denied

. ”

Laws appealed . Hi s appointed counsel filed a brief pursuant to

Wende, supra , 25 Cal.3d 436, raising n o issues and asking this court

independently to review of the record. On July 7, 2020, we advised

Laws he had 30 days within which to submit his own brief or letter

stating any contentions or issues he wished us to consider. Laws filed

three supplemental letters b etween July 16 and August 6, 2020 . Two of

those letters repeat arguments Laws made below, namely t hat , at

sentencing, the trial court never investigated his ability to pay before4

imposing the restitution fine, and he will never be able to satisf y that

fine given his minimal prison wage. 2

DISCUSSION

Where appointed counsel finds no arguable issues in an appeal

seeking postjudgment relief, the appellate court is not required to

conduct an independent review of the record for arguable issues.

( Peo ple v. Cole (2020) 52 Cal.App.5th 1023, 1039

– 1040, review granted

Oct. 14, 2020, S264278.) However, we do review any contentions or

arguments made where, as here, the defendant files his own

supplemental brief or letter. ( Id . at p. 1039.)

Relying on Dueñ as , supra, 30 Cal.App.5th 1157, Laws contends

the trial court was required to stay or reduce his restitution fine

imposed without first determining his ability to pay restitution. Laws

does not claim he objected to imposition of the fines before the trial

court. Laws ’ judgment of conviction became final long before Dueñas

was decided. Accordingly, the trial court lacked jurisdiction to grant

Laws’ motion. 3 (See People v. Chlad (1992) 6 Cal.App.4th 1719, 1725

–

2 Laws’ third letter argues he should not have been convicted of robbery, a contention we rejected in affirming his conviction. ( People v. L aws (June 30, 1994, B075311 ) [nonpub. opn.].)

3 Laws forfeited any challenge to the fine. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153

– 1155; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [having failed to object to fees or fine in the trial court, defendant
forfe ited Dueñas issue].)5

1726 .) 4 Generally, once a judgment is render ed 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 ( Torres ); People v. Hernandez (2019) 34 Cal.App.5th 323,

326; People v. Fuimaon o (2019) 32 Cal.App.5th 132, 135.) “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 dismissed. [Citations.]” ( Tor res , at

p. 1084 .) Laws was convicted in 1993

. The instant motion to stay or

vacate the victim restitution fee was filed 2 7 y ears later , long after

Laws began serving his sentence

. As in Torres , the trial court lacked

jurisdiction to rule on Laws’ motion and th is appeal from denial of that

motion must be dismissed. 5

4 Some courts have been critical of Due ñ as . (See e.g., People v. Kopp (2019) 38 Cal.App.5th 47, 95

– 96 [partially following Dueñas ], review granted Nov. 13, 2019, S257844; People v. Hicks (2019) 40 Cal.App.5th 320, 322, 329 [rejectin g Dueñas as wrongly decided and citing cases reaching the same conclusion], review granted Nov. 26, 2019, S258946.) The issue is currently before the Supreme Court, which granted review in Hicks and Kopp .) Regardless of whether Dueñas applies to judgments not yet final, it does not apply to judgments that were final before it was decided. (See In re
Gomez (2009) 45 Cal.4th 650, 654

– 655; People v. Garcia (1984) 36 Cal.3d 539, 549 [“new rule” that “define[s] procedural rights collateral to a fair

determinat ion of guilt or innocence

. . . generally does not receive retroactive effect”]; Whorton v. Bockting (2007) 549 U.S. 406, 416 [new rule of criminal procedure “applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the r ule is a ‘“watershed rul[e] of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding’”].)

5 Moreover, Laws has completed 2 7 years of a life term and has a prison job. Therefore, we may infer he will be able to pay at least a substantial6

We have reviewed the record and are satisfied that Laws’ attorney

fully complied with his responsibilities, that Laws received adequate

and effective appellate review of the judgment in this action and that no

arguable issues exist. ( People v. Kelly (2006) 40 Cal.4th 106, 109

– 110;

Wende, supra , 25 Cal.3d at p. 443.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANEL LA, P. J.

C OLLINS , J.

portion of his financial obligations from his prison wages, which are garnished for that purpose. ( People v. Aviles (2019) 39 Cal.App.5th 1055,

1076

– 1077.) Under such circumstances, even if it may be said that the trial

court e rred, the error would be harmless beyond a reasonable doubt. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1060

– 1061.)