People v. Dowell CA2/7

Filed 9/1/20 P. v. Dowell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B300343
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA049692)
v.
BRADLEY JAMES DOWELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hayden Zacky Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________
A jury convicted Bradley James Dowell in 2009 of
second degree murder, attempted voluntary manslaughter and
four counts of aggravated assault and found true special
allegations that Dowell had used a deadly weapon and inflicted
great bodily injury when committing the offenses. In a bifurcated
proceeding the trial court found true prior conviction allegations
and sentenced Dowell to an aggregate indeterminate state prison
term of 55 years six months to life. We affirmed the judgment on
appeal. (People v. Dowell (Nov. 2, 2010, B215971) [nonpub.
opn.].)
On June 20, 2019 Dowell moved to modify his sentence,
challenging the court’s order he pay a restitution fine of $10,000
(Pen. Code, § 1202.4, subd. (b)) and victim restitution of
$7,499.80, payable to the California Victim Compensation Board
(Pen. Code, § 1202.4, subd. (f)), because it had failed to consider
his ability to pay those sums. The superior court denied Dowell’s
motion, ruling he had forfeited the issue.1 The court noted
Dowell and his counsel had agreed to the amount of victim
restitution at the time of sentencing.
Dowell filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent Dowell on appeal. After
examination of the record, counsel filed an opening brief in which
no issues were raised. On February 3, 2020 we advised Dowell
1 It is by no means clear the superior court had jurisdiction
to consider Dowell’s motion a decade after his conviction was
final. (See People v. Torres (2020) 44 Cal. App. 5th 1081, 1088.) If
the court, in fact, lacked jurisdiction, its order denying the motion
would be nonappealable. (Id. at pp. 1083, 1088.)
2
he had 30 days within which to submit any contentions or issues
he wished us to consider. We have not received a response.
We have examined the record and are satisfied Dowell’s
appellate attorney has fully complied with his responsibilities
and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S.
259, 277-284; People v. Kelly (2006) 40 Cal. 4th 106, 118-119;
People v. Wende (1979) 25 Cal. 3d 436, 441-442; People v. Serrano
(2012) 211 Cal. App. 4th 496, 503.)
At the time Dowell was sentenced, as today, Penal Code
section 1202.4 permitted a defendant to raise an ability-to-pay
objection to the imposition of a restitution fine greater than the
statutory minimum. (§ 1202.4, subds. (c) [court may increase
restitution fine beyond statutory minimum], (d) [defendant bears
burden of demonstrating his or her inability to pay restitution
fine in excess of statutory minimum]; see Stats. 2008, ch. 468,
§ 1.) Because Dowell failed to do so, he forfeited the argument
the court erred in imposing a $10,000 fine without considering
his ability to pay. (See People v. Miracle (2018) 6 Cal. 5th 318,
356 [“[b]ecause [the] defendant did not object to the [restitution]
fine at his sentencing hearing, he has forfeited his challenge”];
People v. Nelson (2011) 51 Cal. 4th 198, 227 [“[a]t the time of
[defendant’s] 1995 crime and his 2000 sentencing, the law called
for the court to consider a defendant’s ability to pay in setting a
restitution fine, and defendant could have objected at the time if
he believed inadequate consideration was being given to this
factor”]; People v. Avila (2009) 46 Cal. 4th 680, 729 [“in not
adducing evidence of his inability to pay” a $10,000 restitution
fine, the defendant “forfeited the argument”]; People v. Gutierrez
(2019) 35 Cal. App. 5th 1027, 1033 [defendant “forfeited any
3
ability-to-pay argument regarding the restitution fine by failing
to object”].)
With respect to the award of victim restitution, Dowell and
his counsel expressly waived a hearing and agreed to the sum of
$7,499.80 as payment for the victim’s funeral and burial
expenses. In any event, “a defendant’s ability to pay victim
restitution is not a proper factor to consider in setting a
restitution award under [Penal Code] section 1202.4,
subdivision (f).” (People v. Evans (2019) 39 Cal. App. 5th 771,
777.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
4