People v. Thompson CA2/3 ( 2020 )

Filed 12/30/20 P. v. Thompson CA2/3
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B306159
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA041815)
v.
NUNC PRO TUNC ORDER
DEWAN LEE THOMPSON,
Defendant and Appellant.
BY THE COURT:*
It is ordered that the opinion filed herein on December 21,
2020, be modified as follows:
On page 1, the superior court judge’s name is to read Drew
E. Edwards, instead of Leslie E. Brown.
____________________________________________________________
EDMON, P. J. LAVIN, J. EGERTON, J.
Filed 12/21/20 P. v. Thompson CA2/3 (unmodified order)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B306159
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA041815)
v.
DEWAN LEE THOMPSON,
Defendant and Appellant.
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.
_________________________
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.)
2
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
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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
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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.
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