Filed 1/14/15 P. v. James 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
JAWAD LATIF JAMES,
Defendant and Appellant. B254826
(Los Angeles County Super. Ct. No. BA115617)

APPEAL from an order of the Superior Court of Los Angeles County, Laura F. Priver, Judge. Affirmed.
Jonathan B. Steiner and J ill Ishida, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent2 Sixteen years after the unsuccessful appeal of his first degree murder conviction, appellant Jawad Latif James filed a “Motion for Modification of Sentence Pursuant to Penal Code § 1202.4(b),” ch allenging the $10,000 restituti on fine imposed upon him in 1997. The trial court denied James’ motion, and he timely appealed. His court-appointed counsel filed an opening brie f raising no issues. (See People v. Wende (1979) 25 Cal.3d 436, 441 ( Wende ).) Following People v. Serrano (2012) 211 Cal.A pp.4th 496, 503, review den. Mar. 13, 2013 ( Serrano ), we conclude that “[w]here a defendant has been afforded all the constitutional protections of a first appeal of right, including the right to
Wende review where appropriate, . . . he is not entitled to Anders [ v. California (1967) 386 U.S. 738]/ Wende procedures, including collateral attacks on the judgment.” Nonetheless, because James has filed a suppleme ntal brief with this court, we address the
issues he raises. We find that the trial court did not err, and we affirm.
FACTUAL AND PROCED URAL BACKGROUND In January 1997, James was convicted of first degree murder during the attempted commission of a robbery (Pen. Code, §§ 1 87, & 190.2, subd. (a)(17); count 1), 1 attempted robbery (§§ 664/211; count 2), and assault with a firearm (§ 245, subd. (a)(2); count 3), during which offenses a princi pal was armed with a firearm (§ 12022, subd. (a)(1)). He was sentenced to prison for lif e without the possibility of paro le on count 1, plus a threeyear middle term on count 3, and one year each for the principal armed enhancement on count 1 and count 3. The court also impos ed a $10,000 restitution fine pursuant to section 1202.4. James did not make any objecti on to the fine at his sentencing hearing. James appealed his judgment of convic tion, and in December 1997 this court
affirmed. James also filed a petition for rehearing, which this court denied. James then petitioned the California Supreme Court for re view, and in April 1998 the Court denied James’ petition. On December 23, 2013, Jame s filed a motion to modify his sentence, seeking to
reduce his restitution fine. Ja mes contended that the trial court erred in imposing the

1 All further statutory references are to the Penal Code.3 $10,000 maximum under section 1202.4 without considering his ability to pay the fine. He argued that, in light of the rates of pa y for work performed by prison inmates, it is impossible for him to pay a $10,000 fine from his wages during his lifetime. Accordingly, James requested a reduction of his fine to $200, the minimum under section 1202.4. In January 20 14, the court denied James’ motion on the ground that the section 1202.4 restitution fund fine “is not depende nt on defendant’s ability to pay.” James timely appealed. Counsel appointed to represent James on appeal reviewed the record, filed an opening brief which raised no issues, and requested that this court conduct an independent review of the record. (See Wende, supra, 25 Cal.3d at p. 441.)
We directed counsel to send the record on appeal and a copy of the opening brief
to James. We also advised James that he had 30 days in which to “submit by brief or letter any grounds of appeal, contentions, or argument which appellant wishes this court to consider.” James responded by letter, contending that the order of restitution
constitutes cruel and unusual punishment in violation of his rights under the Eighth Amendment because he will never be able to pa y off the fine. He fu rther contended that the fine was “not in the spirit of the law” because a portion of the funds James’ family and friends gift to him are deducted and app lied to the fine, forcing them to pay it.
DISCUSSION
A. James Is Not Entitled to Wende Review James’ appointed counsel filed a no-issu e brief and requested that this court “independently review the entir e record on appeal for ar guable issues” pursuant to
Wende . The Wende procedure was designed to protect indigent criminal defendants’ federal constitutional right to effective assistan ce of counsel in the first appeal of right from their convictions. ( People v. Kelly (2006) 40 Cal.4th 106, 118; see also Serrano,

supra, 211 Cal.App.4t h at p. 500; Wende, supra, 25 Cal.3d at pp. 441–442.) Our Supreme Court—and, ultimately, the United States Supreme Court (see Smith v. Robbins (2000) 528 U.S. 259, 276)—determined that the Wende requirement that the appellate court undertake a complete review of the re cord when counsel is unable to identify any4 arguable issue on appeal adequately implements the mandates of Anders v. California (1967) 386 U.S. 738, in first appeals of right. ( Serrano, supra, 211 Cal.App.4th at p. 500; People v. Kelly, supra, 40 Cal.4th at p. 119.) “Both the United States Supreme Court and the California Supreme Court have concluded that due pr ocess does not require Anders/Wende review other than in the first appeal of right from a criminal conviction.” ( Serrano, supra, 211 Cal.App.4t h at p. 500, citing Pennsylvania v. Finley (1987) 481 U.S. 551, 555 ( Finley ), and In re Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536–537.) In Finley, the United States Supreme Court ruled that the federal constituti onal “right to appointed counsel extends to the first appeal of right, and no further.” ( Finley, supra, 481 U.S. at p. 555.) Accordingly, the Court reasoned, “access to a la wyer is the result of the State’s decision, not the command of the United States Constitution.” ( Id. at p. 556.) And since Anders (and Wende ) primarily are concerned with ensuring the right to effective counsel, a defendant who “has no underly ing constitutional right to ap pointed counsel . . . has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.” ( Id. at p. 557.) The California Supreme
Court has relied on Finley to hold that “[t]he independent judicial review mandated by
Anders . . . applies only to a defendant's first appeal as of right.” ( People v. Kelly, supra, 40 Cal.4th at p. 119.) The instant case is not a first appeal of right. Although it “originat[ed] in a criminal context, [it] is not a first appeal of right from a cr iminal prosecution, because it is not an appeal from the ju dgment of conviction.” ( Serrano, supra, 211 Cal.App.4th at p. 501.) “While the State of California a ffords defendant the right to appointed counsel in an appeal from a postconviction motion to vaca te judgment, that right is a state created right, not a constitutional one.” ( Ibid. ; see also Finley, supra, 481 U.S. at pp. 555–556.)
And because James lacks a federal constitutiona l right to counsel for his similarly aimed
“Motion for Modification of Se ntence Pursuant to Penal Co de § 1202.4(b),” “he is not
entitled to Anders/Wende review when appointed coun sel finds no arguable issues on appeal.” ( Serrano, supra, 211 Cal.App.4th at p. 501.)5 Thus, after his appointed counsel failed to discern any arguable issues, she was obligated only to “(1) inform the court he or she has foun d no arguable issues to be pursued on appeal; and (2) file a brief setting forth the applicable facts and the law.” ( Ben C., supra , 40 Cal.4th at p. 544; Serrano, supra , 211 Cal.App.4th at p. 503.) Here, as
in Serrano , the Wende brief filed by counsel fulfills her obligations. (See Serrano, supra, 211 Cal.App.4th at p. 503.) “Upon receipt of the brief from counsel, the court will inform defendant of his right to file a supplemental brief. The court w ill then either retain the appeal or dismiss it on our motion.” ( Serrano, supra, 211 Cal.App.4th at p. 503 .) Here, unlike the appellant
in Serrano , James filed a supplemental brief in the form of a le tter. Accordingly, while
James is not entitled to Wende review, we do address the issue that James raises in this appeal.
B. The Court Did Not Err in Denying Defendant’s Motion James contends that the court erred by failin g to take into consideration his ability to pay when imposing the $10,000 victim restitution fine. We find no error. First, James forfeited this claim by faili ng to object at his sentencing hearing. ( People v. Nelson (2011) 51 Cal.4th 198, 227 ( Nelson ); People v. Gamache (2010) 48 Cal.4th 347, 409 ( Gamache ).) Just as it does now, at th e time of his 1995 crime and his 1997 sentencing, section 1202 .4, subdivision (d), called fo r the court to consider a defendant’s ability to pay--amo ng many other factors--in setti ng a restitution fine. James could have objected at the time if he believe d inadequate consider ation was being given to this factor. ( Ibid. ) Second, James’ claim fails on the merits . In 1995 and 1997, as it does today, section 1202.4, subdivision (d ), placed the burden of demonstrating in ability to pay on the defendant. But James “‘points to no eviden ce in the record supp orting his inability to pay, beyond the bare fact of his impending incarceration. Nor does he identify anything in the record indicating the tr ial court breached its duty to co nsider his ability to pay; as the trial court was not obligated to make ex press findings concerning his ability to pay, the absence of any findings does not demonstr ate it failed to consider this factor. Thus,6 we cannot say on this reco rd that the trial court abused its discretion.’ ( Gamache, supra
, 48 Cal.4th at p. 409.)” ( Nelson
, supra , 51 Cal.4th at p. 227.)
James’ contention that his fine violat es his Eighth Amendment right to be free from cruel and unusual punishme nt is belied by our Supreme Court’s repeated affirmance of maximum restitution fines under substantially similar circumstances. ( Nelson
, supra , 51 Cal.4th at p. 227; Gamache, supra , 48 Cal.4th at p. 409.) And contrary to James’ contention, the fact that a portion of the m onetary gifts he receives from friends and family is deducted and applied to his fine is not inconsistent with the spirit of the law. Rather, it is in complete compliance with the law gove rning prisoner repayment of restitution fines, which does not distinguish between deductions from the wages and trust account deposits of a prisoner. (Pen. Code, § 2085.5, subd. (a).) In fact, that James receives occasional monetary gifts actually i ndicates that he has and may continue to
have funds from which restitu tion could be paid. (See People v. Lewis (2009) 46 Cal.4th 1255, 1321.)
DISPOSITION
The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.