People v. Laws CA2/4 ( 2020 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B305780
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. KA008785)
v.
BRIAN KEITH LAWS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Stacy Wiese, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Brian Keith Laws appeals from the denial of the most recent of
several motions to vacate or stay a restitution order imposed when he
was sentenced in 1993. Here, as before, he has filed an appeal from a
nonappealable order denying such relief, and we 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 of $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
paying restitution. That request was denied. (See People v. Laws (April
14, 2014, B249705) [nonpub. opn.] 2014 WL 1455183.) In 2013, Laws
appealed after unsuccessfully moving 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 review the record on appeal. (People v. Wende
1 Undesignated statutory references are to the Penal Code.
2
(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 sentence, based on the reasoning articulated in People v. Turrin
(2009) 176 Cal. App. 4th 1200, 1205, 1207 [“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 cannot afford and will never pay off the restitution fine. The trial
court denied the motion on the ground that Laws’ “request was
previously considered and denied.”
Laws appealed. His appointed counsel filed a brief pursuant to
Wende, supra, 25 Cal. 3d 436, raising no 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 between July 16 and August 6, 2020. Two of
those letters repeat arguments Laws made below, namely that, at
sentencing, the trial court never investigated his ability to pay before
3
imposing the restitution fine, and he will never be able to satisfy 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.
(People 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 Dueñas, 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. Laws (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
forfeited Dueñas issue].)
4
1726.)4 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 (Torres); People v. Hernandez (2019) 34 Cal. App. 5th 323,
326; People v. Fuimaono (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.]” (Torres, at
p. 1084.) Laws was convicted in 1993. The instant motion to stay or
vacate the victim restitution fee was filed 27 years later, long after
Laws began serving his sentence. As in Torres, the trial court lacked
jurisdiction to rule on Laws’ motion and this appeal from denial of that
motion must be dismissed.5
4 Some courts have been critical of Dueñas. (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
[rejecting 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
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’”].)
5 Moreover, Laws has completed 27 years of a life term and has a prison
job. Therefore, we may infer he will be able to pay at least a substantial
5
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:
MANELLA, P. J.
COLLINS, 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 erred, the error would be harmless beyond a reasonable doubt. (See
People v. Lowery (2020) 43 Cal. App. 5th 1046, 1060–1061.)
6