People v. Page CA2/7 ( 2021 )

Filed 4/21/21 P. v. Page CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303788
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA111507)
v.
RICHARD PAGE,
Defendant and Appellant.
APPEAL from postjudgment orders of the Superior Court of
Los Angeles County, Olivia Rosales and Michael A. Cowell,
Judges. The appeal from the order denying discovery as
untimely is dismissed. The order denying the motion to vacate
fines, fees and assessments is affirmed.
Cynthia L. Barnes, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
___________
Richard Page appeals from postjudgment orders denying a
motion for discovery and a motion to vacate fines, fees and
assessments imposed at his sentencing in 2010. No arguable
issues were identified by Page’s appointed appellate counsel after
her review of the record. We also have identified no arguable
issues after our own independent review of the record and
analysis of the contentions presented by Page in a supplemental
brief. We dismiss Page’s appeal from the order denying discovery
as untimely and affirm the order denying the motion to vacate
fines, fees and assessments.
FACTUAL AND PROCEDURAL BACKGROUND
1. Page’s Trial and Sentence
Page attacked his ex-wife in 2009 while she was walking
her dog through the park. Page hit her repeatedly in the head
and face and tried to suffocate her by placing a plastic bag over
her head.
Page was convicted following a jury trial in October 2010 of
attempted willful, deliberate and premeditated murder (Pen.
Code, §§ 187, subd. (a),1 664, subd. (a)), corporal injury to a
former spouse (§ 273.5, subd. (a)) and disobeying a domestic
relations court order, a misdemeanor (§ 273.6, subd. (a)). The
jury found true allegations that in committing the offenses Page
had personally used a deadly or dangerous weapon (§ 12022,
subd. (b)(1)) and had personally caused great bodily injury under
circumstances involving domestic violence (§ 12022.7, subd. (e).)
The trial court sentenced Page to an indeterminate state
prison term of life with the possibility of parole for attempted
premeditated murder, plus consecutive determinate terms of
one year for the deadly weapon enhancement and five years for
1 Statutory references are to this code unless otherwise
stated.
2
the great bodily injury enhancement.2 The court ordered Page to
pay $2,790 in victim restitution pursuant to section 1202.4,
subdivision (f), and imposed a $400 domestic violence fee
(§ 1203.097), a $40 court operations assessment (§ 1465.8,
subd. (a)(1)), a $60 criminal conviction assessment (Gov. Code,
§ 70373), (§ 1465.8) and a $200 restitution fine (§ 1202.4,
subd. (b)), and imposed and stayed a $200 parole revocation fine
(§ 1202.45).
We affirmed the judgment on appeal. (People v. Page
(Nov. 29, 2011, B229182) [nonpub. opn.].)
2. The Postjudgment Motions
On August 30, 2019 Page moved in superior court for
discovery of “materially exculpatory evidence” he alleged the
“district attorney’s office willfully failed to disclose” prior to trial,
including a toxicology report concerning the victim, all documents
regarding an investigation of the victim by her employer and all
medical records pertaining to the victim’s reconstructive
surgeries. The superior court denied the motion. Page’s
purported appeal from that order was dismissed as having been
taken from a nonappealable order. (People v. Page (Jan. 2, 2020,
B302260).)
On October 28, 2019 Page again moved for discovery of a
toxicology report regarding his ex-wife allegedly prepared on
July 23, 2009. Page cited as authority for his renewed request
section 1473.6, which provides a person no longer in custody may,
under certain circumstances, move to vacate a judgment of
conviction based on newly discovered evidence of actual
2 The court stayed the sentences on the other two counts
pursuant to section 654.
3
innocence. Page attached to the motion a response from the
district attorney’s office, dated July 23, 2019, indicating it “could
not find any documents pertaining to ‘the findings of a toxicology
report taken on 7/23/09.’” Page’s motion also included a public
records request sent to the hospital, a transcript of his ex-wife’s
call to the Norwalk sheriff’s station on the day of the attack and
an incident report prepared by Los Angeles County paramedics.
In its order denying the motion on November 12, 2019, the
superior court explained, “The court finds the
defendant/petitioner has again filed a motion requesting an order
to have the Norwalk Community Hospital provide a copy of a
toxicology report purportedly involving the complaining witness
in this case. The request has previously been denied. This court
finds no good cause for such an order. [Page’s] motion is denied.”
On December 10, 2019 Page moved in superior court to
vacate the fines, fees and assessments imposed at sentencing
pursuant to this court’s decision in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas). The superior court denied the
motion the same day, explaining, “[G]iven the sentence, the
length of the sentence . . . the statutory minimum fine . . . is not
unreasonable. He can work. Moreover, what he is really after is
for the court to vacate the actual restitution to the victims which
was $2,790. That’s the bulk of the money that’s been imposed
and along with the $200 restitution fine which actually is less
than the statutory minimum, a $400 domestic violence fund, a
$30 criminal conviction assessment and a $40 court security
assessment. Those funds are reasonable under the circumstances
considering the length of time that he has yet to serve.”
Page appealed the superior court’s denial of his request to
vacate the fines, fees and assessments on January 6, 2020. On
4
January 28, 2020 Page filed a second notice of appeal challenging
the superior court’s November 12, 2019 denial of his request for
the toxicology report.
DISCUSSION
In accord with the procedures described in People v. Cole
(2020) 52 Cal.App.5th 1023, review granted October 14, 2020,
S264278, we appointed counsel to represent Page on appeal.3
After reviewing the record, appointed counsel filed a brief raising
no issues. Appointed counsel advised Page on August 27, 2020
that he may personally submit any contentions or issues he
wanted the court to consider. On October 6, 2020 and again on
November 17, 2020 we granted Page extensions of time to file his
supplemental brief.
On December 14, 2020 we received a 13-page handwritten
supplemental brief from Page, as well as an 18-page request for
judicial notice.4 In his supplemental brief Page contends his
appointed appellate counsel provided constitutionally ineffective
assistance by submitting a brief identifying no arguable issues.
Page insists the record and material identified in his request for
judicial notice demonstrate a toxicology report does exist and was
suppressed by the prosecution and his counsel was deficient for
failing to argue the superior court improperly denied his motion
3 On September 2, 2020 we denied Page’s motion to appoint
new appellate counsel.
4 On December 10, 2020 we denied Page’s motion to strike
the probation report, which is part of the record of appeal, and
ordered him to file his supplemental brief by January 4, 2021.
Page challenged this order in a petition for review in the
Supreme Court. That petition was denied on February 17, 2021.
(S266530.)
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for discovery.5 He also asserts counsel should have argued the
probation report used in connection with his sentencing was
improperly prepared and reviewed and the victim restitution
amount he was ordered to pay was not identified in the report.
The Dueñas decision is mentioned only when Page describes the
basis for his motion in the superior court to vacate fines, fees and
assessments.
Page’s appeal from the November 12, 2019 order denying
discovery is untimely. A notice of appeal in a criminal case “must
be filed within 60 days after the rendition of the judgment or the
making of the order being appeal.” (Cal. Rules of Court,
rule 8.308(a).) Page’s January 28, 2020 notice of appeal was filed
77 days after the court’s order. A timely notice of appeal is
essential to appellate jurisdiction. (People v. Mendez (1999)
19 Cal.4th 1084, 1094.) Accordingly, the appeal from that order
must be dismissed.6
5 In light of our dismissal of Page’s appeal of the order
denying the discovery motion we deny as unnecessary the motion
for judicial notice filed with his supplemental brief and the
further motion for judicial notice filed on April 12, 2021.
6 Even if it were timely, Page’s appeal from the discovery
ruling would lack merit. Section 1473.6, the purported basis for
his motion, does not apply to an individual in state prison and
does not, in any event, authorize postjudgment discovery. It
provides a procedure for a person no longer imprisoned to seek to
vacate a conviction based on newly discovered evidence of actual
innocence or a conviction following a plea of guilty or no contest
due to prejudicial error damaging the individual’s ability to
meaningfully understand the immigration consequences of the
plea.
6
With respect to his motion to vacate fines, fees and
assessments, Page’s argument concerning improprieties in the
preparation of his probation report does not include an assertion
he is unable to pay the sums imposed, the basis for the due
process holding in Dueñas, supra, 30 Cal.App.5th 1157 and the
rationale for the superior court’s ruling denying the motion.
Moreover, as the superior court noted, the focus of Page’s motion
was the order that he pay victim restitution, not the minimum
statutory fees and assessments imposed. However, “Dueñas does
not apply to victim restitution under section 1202.4,
subdivision (f).” (People v. Abrahamian (2020) 45 Cal.App.5th
314, 338; accord, People v. Evans (2019) 39 Cal.App.5th 771, 777.)
No cognizable legal issues have been raised by Page’s
appellate counsel or by Page or identified in our independent
review of the record. The appeal from the postjudgment order
denying Page’s discovery motion is dismissed. The postjudgment
order denying the motion to vacate fines, fees and assessments is
affirmed. (See People v. Cole, supra, 52 Cal.App.5th at pp. 1039-
1040, review granted; see also People v. Serrano (2012)
211 Cal.App.4th 496, 503; see generally People v. Kelly (2006)
40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436,
441-442.)
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DISPOSITION
The appeal from the November 12, 2019 postjudgment
order denying discovery is dismissed. The December 10, 2019
postjudgment order denying the motion to vacate fines, fees and
assessments is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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