People v. Thompson CA3 ( 2024 )

Filed 5/23/24 P. v. Thompson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C099709
Plaintiff and Respondent, (Super. Ct. No. 16FE010268)
v.
TRAVIS THOMPSON,
Defendant and Appellant.
Defendant Travis Thompson appeals from a postjudgment order denying his
motion for a hearing to reconsider his ability to pay a $10,000 restitution fine originally
imposed when he was sentenced in 2017. The trial court denied the motion on the
grounds that it lacked jurisdiction to hear it because defendant had begun serving his
sentence and his judgment was long final. While this is not his first appeal as of right,
defendant’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d
436 (Wende) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), asking this
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court to independently review the record to determine if there are any arguable errors that
would result in a disposition more favorable to defendant. Counsel’s Wende brief
acknowledged that there may be a question regarding the appealability of the order
defendant challenges.
Defendant filed a supplemental brief arguing that he had not been given an ability
to pay hearing to determine whether he could pay the Penal Code section 1202.4
restitution fine in violation of due process. (Unless otherwise stated, statutory section
citations that follow are to the Penal Code.) After considering the order’s appealability,
we conclude the trial court lacked jurisdiction to entertain defendant’s motion and that
defendant’s appeal must be dismissed.
FACTS AND HISTORY OF THE PROCEEDINGS
While defendant was incarcerated in 2016, correctional officers observed another
inmate pass him an object that he appeared to place in his sock. A subsequent search of
defendant’s person revealed that defendant had a plastic object sharpened to a point in his
sock. During the search, defendant physically assaulted a correctional officer, punching
him several times before being subdued.
A jury found defendant guilty of battery on a nonconfined person (§ 4501.5, count
one); and possession of an inmate manufactured weapon (§ 4502, count two). The jury
found true the allegation that defendant was armed with a stabbing weapon during the
battery offense (§§ 667, subd. (e)(20(C)(iii), 1170.12, subd. (C)(2)(C)(iii)), and the trial
court found two prior strike allegations true (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)).
Defendant was sentenced to 25 years to life in prison for count one, to be served
consecutively to any other sentence defendant was already serving; and a four-year term
on count two was stayed (§ 654). The trial court imposed a $10,000 restitution fine
(§ 1202.4) and an identical parole revocation restitution fine, which was suspended unless
parole was revoked. (§ 1202.45.)
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Defendant appealed, and his appointed appellate counsel filed a Wende brief
raising no issues but asking this court to review the record to determine whether there
were any arguable issues on appeal. (See People v. Thompson (Nov. 26, 2018, C084825)
[nonpub. opn.].) Defendant filed a supplemental brief raising the following issues: (1)
he was the victim of discriminatory prosecution, (2) there was a code of silence that
violated his due process rights to present a defense, (3) he was improperly forced to
represent himself after his People v. Marsden (1970) 2 Cal.3d 118 motion was denied, (4)
the denial of a corrections expert witness violated his right to due process, and (5) a
correctional officer committed perjury to avoid qualifying as an expert witness for the
defense. (Thompson, supra, C084825.) We rejected defendant’s appellate contentions
and affirmed the judgment. (Ibid.)
Nearly five years later, in May 2023, defendant filed a “motion for restitution
hearing for reconsideration of ability to pay and constitutionality of excessive fines,”
arguing that the trial court failed to consider his ability to pay the $10,000 restitution fine
or to determine if it was excessive. In August 2023, the trial court denied the motion in a
minute order, finding that it lacked jurisdiction to consider the motion because
defendant’s sentence had already commenced. In October 2023, defendant appealed
without a certificate of probable cause.
DISCUSSION
In Wende, our Supreme Court held that “Courts of Appeal must conduct a review
of the entire record whenever appointed counsel submits a brief on direct appeal which
raises no specific issues or describes the appeal as frivolous.” (Delgadillo, supra,
14 Cal.5th at p. 221; Wende, supra, 25 Cal.3d at p. 441.) The Wende procedure applies to
the first appeal as of right and is compelled by the constitutional right to counsel under
the Fourteenth Amendment of the United States Constitution. (Wende, at pp. 439, 441.)
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In Delgadillo, our Supreme Court held that Wende independent review is not
constitutionally required in an appeal from a postconviction order denying a section
1172.6 petition for resentencing. (Delgadillo, supra, 14 Cal.5th at pp. 222, 224-225, 231,
fn. 5.) The Delgadillo court also prescribed guidance for considering an appeal from an
order denying a section 1172.6 petition where counsel finds no arguable issues to be
pursued on appeal. (Delgadillo, at p. 232.) When a defendant has been notified that his
appeal of the postconviction order may be dismissed, the reviewing court must evaluate
the specific arguments presented in any supplemental brief the defendant files, but the
court is not compelled to independently review the record for error (although it may
exercise its discretion to do so). (Ibid.)
While Delgadillo addressed the application of Wende’s review procedures in the
specific context of a postconviction relief order under section 1172.6, which is not the
type of postconviction order at issue here, the same principles may nonetheless apply
given that this is not defendant’s first appeal as of right. Defendant has filed a
supplemental brief challenging the $10,000 restitution fine originally imposed under
section 1202.4, and, as best we can discern, he contends the restitution fine violates due
process because he was not afforded an ability to pay hearing. To support his argument,
defendant cites various provisions of the California constitution and penal statutes that
were all in effect when he was sentenced in May 2017.
Before applying Delgadillo’s guidance to consider the issue in defendant’s
supplemental brief, however, we first turn to whether the trial court had jurisdiction to
consider defendant’s motion challenging the restitution fine under section 1202.4. As the
trial court noted, judgment was entered in May 2017 and defendant had already begun
serving his sentence.
In People v. Turrin (2009) 176 Cal.App.4th 1200, this court held that a trial court
lacked jurisdiction to consider a defendant’s motion to modify a restitution fine once that
defendant had begun serving his sentence. (Turrin, at pp. 1205-1209; see also People v.
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Howard (1997) 16 Cal.4th 1081, 1089 [“generally a trial court lacks jurisdiction to
resentence a criminal defendant after execution of sentence has begun”].) Because the
trial court lacked jurisdiction to modify the restitution fine, the Turrin court found that the
trial court’s order denying the defendant’s motion requesting the same did not affect the
defendant’s substantial rights and was not an appealable postjudgment order. (Turrin, at
p. 1208.) The court therefore dismissed the appeal. (Id. at pp. 1208-1209.)
The same rationale applies here. Defendant’s judgment, including the restitution
fine, was long since final, having been affirmed on appeal in 2018. (People v. Thompson,
supra, C084825.) The sentence, moreover, was executed immediately at the initial
sentencing hearing and defendant was remanded into custody forthwith. Thus, he had
already begun serving his sentence when he moved the trial court for relief from the
$10,000 restitution fine.
When the trial court denied his motion in August 2023, it had no statutory
authority to recall and modify defendant’s sentence. At that time, section 1172.1
(formerly section 1170.03), which governs the recall of sentences, provided in relevant
part: “[w]hen a defendant, upon conviction for a felony offense, has been committed to
the custody of the Secretary of the Department of Corrections and Rehabilitation . . . the
court may, . . . within 120 days of the date of commitment . . . on its own motion, . . . at
any time upon the recommendation of the secretary or the Board of Parole Hearings in
the case of a defendant incarcerated in state prison . . . [or] the district attorney of the
county in which the defendant was sentenced, . . . recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as if they had not
previously been sentenced, whether or not the defendant is still in custody, and provided
the new sentence, if any, is no greater than the initial sentence.” (§ 1172.1, subd. (a)(1);
Stats. 2022, ch. 58, § 9.)
Effective January 1, 2024, section 1172.1 was amended to provide that the trial
court may, on its own motion, within 120 days of the date of commitment or at any time
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if the applicable sentencing laws at the time of the original sentencing are subsequently
changed by new statutory authority or case law, recall the sentence and commitment
previously ordered and resentence the defendant in the same matter as if they had not
previously been sentenced. (§ 1172.1, subd. (a)(1); Stats. 2023, ch. 795, § 1.5.)
More than 120 days had elapsed since defendant was committed, and nothing in
the record shows the Board of Parole Hearings or the district attorney ever recommended
that defendant’s sentence be recalled. Even if the most recent version of section 1172.1 is
applied—allowing the trial court to recall a sentence at any time on its own motion if the
sentencing laws have changed—section 1202.4 governing restitution fines has not
changed.
When defendant was sentenced in May 2017, section 1202.4, subdivision (b)
provided (as it does now)1 that “[i]n every case where a person is convicted of a crime,
the court shall impose a separate and additional restitution fine, unless it finds compelling
and extraordinary reasons for not doing so and states those reasons on the record.” Under
the statute, the minimum restitution fine is $300, and the maximum fine is $10,000.
(§ 1202.4, subd. (b)(1).) While an inability to pay cannot be considered a compelling and
extraordinary reason not to impose a restitution fine under section 1202.4, the statute
expressly allows a trial court to consider a defendant’s inability to pay when “increasing
the amount of the restitution fine in excess of the [$300] minimum . . . .” (§ 1202.4,
subd. (c).) Indeed, in setting the amount of the restitution fine above the minimum, the
court must consider any relevant factors, including, but not limited to, the defendant’s
ability to pay, and the defendant bears the burden of demonstrating his inability to pay.
1 The current statutory language of section 1202.4, subdivisions (b), (c), and (d), with
minor exceptions not relevant here, is the same as it was when defendant was sentenced
in May 2017. (Compare Stats. 2016, ch. 37, § 3 with Stats. 2021, ch. 257, § 20.) We cite
to the current version of the statute for ease of reference.
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(§ 1202.4, subd. (d).) Thus, defendant, then as now, could have challenged the $10,000
based on inability to pay grounds. Because no change in the law has occurred, even the
current version of section 1172.1 does not provide any authority to recall defendant’s
sentence.
We also note that because defendant could have, but did not, challenge the
$10,000 restitution fine in his prior direct appeal of the judgment (see People v.
Thompson, supra, C084825), he may not do so in this second appeal. (People v. Senior
(1995) 33 Cal.App.4th 531, 538 [“where a criminal defendant could have raised an issue
in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal
absent a showing of justification for the delay”]; People v. Jordan (2018) 21 Cal.App.5th
1136, 1141, 1144-1145 [concluding that because the defendant did not raise the penalty
assessment claims in his original appeal, he could not raise them in a subsequent appeal].)
Section 1237, subdivision (b) provides that a defendant may appeal “[f]rom any
order made after judgment, affecting the substantial rights of the party.” Since the trial
court lacked jurisdiction to modify the restitution fine, its order denying defendant’s
motion requesting such relief could not affect his substantial rights and is not an
appealable postjudgment order. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-
1726.) Dismissal of the appeal is therefore warranted.
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DISPOSITION
The appeal is dismissed.
HULL, Acting P. J.
We concur:
MAURO, J.
WISEMAN, J.
 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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