People v. Wade CA2/1 ( 2020 )

Filed 8/27/20 P. v. Wade CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B305363
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA053458)
v.
MURCHANT JERALD WADE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Martin L. Herscovitz, Judge. Appeal dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal; and Murchant Jerald Wade, in pro. per., for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
________________________________
In 2008, a jury convicted Murchant Jerald Wade of three
counts of assault with a semiautomatic firearm (Pen. Code,1
§§ 245, subd. (b)), discharging a firearm in a grossly negligent
manner (§ 246.3), being a felon in possession of a firearm
(former § 12021, subd. (a)(1)),2 and receiving stolen property
(§ 496, subd. (b)). The jury also found true certain enhancement
allegations. (§§ 12022.5, subd. (a), 667, subd. (a).) The court
sentenced Wade to 22 years 4 months in prison. The court also
imposed a $120 court security assessment (§ 1465.8, subd. (a)(1)),
and a $4,200 restitution fine (§ 1202.4, subd. (b)), and imposed
and stayed a $4,200 parole restitution fine (§ 1202.45). The court
further ordered Wade to pay $1,800 in victim restitution. (§ 1202.4,
subd. (f).)
We affirmed the judgment in September 2009. (People v.
Wade (Sept. 24, 2009, B208144) [nonpub. opn.].)
On January 22, 2020, Wade filed a motion in the superior
court challenging the fines and assessments based on People v.
Dueñas (2019) 30 Cal.App.5th 1157. In particular, Wade requested
that the court vacate, set aside, or stay the assessments and fines
unless and until the People prove that he has the ability to pay
them.
On January 24, 2019, the trial court denied the motion. Wade
filed a timely notice of appeal.
We appointed appellate counsel for Wade, who filed a brief
setting forth the pertinent procedural history and a summary of
relevant facts, and raising no issues on appeal. Counsel requests
1 Subsequent statutory references are to the Penal Code.
2 Former section 12021, subdivision (a)(1) was repealed in
2010 and reenacted without substantive change as section 29800,
subdivision (a)(1). (People v. Sanders (2012) 55 Cal.4th 731, 734,
fn. 2.)
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that we independently review the record pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende). Counsel also notified Wade
that he would be filing a brief, that Wade was entitled to file a
supplemental brief with this court, and that counsel remained
available to brief any issues upon our request. This court also
notified Wade that he may file a supplemental brief.
On August 3, 2020, Wade filed a supplemental brief in which
he asserts: (1) The court violated his right to due process under
the our state and federal constitutions by summarily denying his
petition “because the petition shows that [he] does not have the
ability to pay”; (2) His constitutional right to equal protection of
the law requires that the decisions in Dueñas and People v. Cowan
(2020) 47 Cal.App.5th 32 (Cowan), review granted June 17, 2020,
S261952,3 be applied retroactively to all cases; and (3) The fines
violated his rights against the imposition of excessive fines under
the federal and state constitutions.
Because Wade’s appeal is from an order denying post-
conviction relief, he is not entitled to our independent review
of the record pursuant to Wende. (See People v. Cole (2020)
__ Cal.App.5th __ [2020 WL 4435275] (Cole); People v. Serrano
(2012) 211 Cal.App.4th 496, 503.)4 Wade is, however, entitled to
3 In Cowan, the Court of Appeal held that certain
assessments and fines may be subject to the state and federal
constitutional proscriptions against excessive fines (U.S. Const.,
8th Amend.; Cal. Const., art. I, § 17), and that “a sentencing court
may not impose [such] . . . fines without giving the defendant, on
request, an opportunity to present evidence and argument why
such monetary exactions exceed his ability to pay.” (Cowan, supra,
47 Cal.App.5th at p. 48.)
4 Under Cole, in a criminal appeal from a post-conviction
order to which Wende does not apply, counsel who finds no arguable
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file a supplemental brief, which he has done, and to our evaluation
of the arguments presented in that brief. (See Cole, supra,
__ Cal.App.5th __ [2020 WL 4435275 at p. *8]; cf. Conservatorship
of Ben C. (2007) 40 Cal.4th 529, 544, fn. 6; id. at pp. 554–555
(dis. opn. of George, C. J.).)
Our state Supreme Court is currently considering whether
trial courts must determine a criminal defendant’s ability to pay
fines and assessments before imposing them. (People v. Kopp
(2019) 38 Cal.App.5th 47, review granted on specified issues
Nov. 13, 2019, S257844.) Even if ability-to-pay hearings are
required in pending cases or in cases not yet final, that right
does not extend to inmates whose judgment became final before
Dueñas was decided. (See People v. Garcia (1984) 36 Cal.3d 539,
549 [“new rule” that “define[s] procedural rights collateral to a
fair determination 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
rule is a ‘ “watershed rul[e] of criminal procedure” implicating the
fundamental fairness and accuracy of the criminal proceeding’ ”].)
The Legislature has enacted post-conviction procedures for
resentencing a defendant after a judgment has become final under
issues is required to “file a brief with the Court of Appeal setting
forth (1) a brief statement of the pertinent procedural history of
the case, (2) a brief summary of the pertinent facts, (3) counsel’s
declaration that there are no reasonably arguable issues to present
on appeal, and (4) counsel’s affirmation that he or she remains
ready to brief any issues at the request of the Court of Appeal.”
(Cole, supra, __ Cal.App.5th __ [2020 WL 4435275 at p. *7].)
Regardless of whether Wende or Cole applies in this case, we
are satisfied that Wade’s counsel has fully complied with his
responsibilities.
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particular circumstances. (See, e.g., §§ 1170, subds. (d)(1) & (e),
1170.126, 1170.18, 1170.95.) These procedures, however, are
statutory exceptions to the general rule that trial courts do not have
“jurisdiction to resentence a criminal defendant once execution of
the sentence has commenced.” (People v. Karaman (1992) 4 Cal.4th
335, 344; see People v. Torres (2020) 44 Cal.App.5th 1081, 1088.)
The Legislature has not enacted any exception to this rule to permit
resentencing—or, more specifically, redetermination of that part
of the sentence imposing fines and assessments—based on the
defendant’s ability to pay the fines and assessments. (People v.
Torres, supra, at pp. 1084–1085.) Consequently, trial courts do
not have jurisdiction to grant a motion, filed after execution of
the defendant’s sentence has begun, challenging the court’s failure
to hold such a hearing; the court’s order denying such a motion is
therefore nonappealable, and an appeal from that order must be
dismissed. (People v. Torres, supra, at p. 1088; cf. People v. Chlad
(1992) 6 Cal.App.4th 1719, 1726.)
Because execution of Wade’s sentence had commenced before
Dueñas was decided, the trial court’s order denying his motion
was nonappealable. For the reasons set forth above, we therefore
dismiss his appeal.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
SINANIAN, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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