People v. Wildman CA2/6

Filed 5/9/23 P. v. Wildman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B323437
(Super. Ct. No. 2010035171)
Plaintiff and Respondent, (Ventura County)
v.
DANIEL CHARLES
WILDMAN,
Defendant and Appellant.
Daniel Charles Wildman appeals from a postjudgment
order denying his “motion to stay restitution fines under newly
enacted Assembly Bill[s] 177 and 1869.” (Bold and capitalization
omitted.) In 2014 a jury convicted him of willful, deliberate, and
premeditated murder (Pen. Code, §§ 187, subd. (a), 189, subd.
(a)),1 and possession of a firearm by a felon (former § 12021, subd.
(a)(1), now § 29800, subd. (a)(1)). The jury found true a firearm
enhancement within the meaning of section 12022.53,
1 All statutory references are to the Penal Code.
subdivision (d). Appellant was sentenced to prison for 50 years to
life. He was ordered to pay a $10,000 restitution fine pursuant to
section 1202.4, subdivision (b). We affirmed the judgment in an
unpublished opinion: People v. Wildman (June 18, 2015,
B254560).
We appointed counsel to represent appellant in the present
appeal. Counsel filed an opening brief stating that he had “not
found any arguable issues to raise on appeal.” Counsel
“request[ed] that [we] follow the procedures set forth in People v.
Serrano (2012) 211 Cal.App.4th 496 [(Serrano)].” (Bold and
capitalization omitted.) We sent a letter to appellant advising
him that he could submit a supplemental brief stating grounds
for his appeal. Appellant filed a supplemental brief.
Trial Court’s Ruling
The trial court ruled: “The motion is denied. [Appellant]
has not established that he was ordered to pay any of fees subject
to A.B. Nos. 177 or 1869. Accordingly, the statutory changes
have no application here.”
Assembly Bill 1869
“On September 18, 2020, the Governor signed Assembly
Bill 1869. Effective July 1, 2021, Assembly Bill 1869
‘eliminate[d] the range of administrative fees that agencies and
courts are authorized to impose to fund elements of the criminal
legal system and . . . eliminate[d] all outstanding debt incurred as
a result of the imposition of [identified] administrative fees.’
(Stats. 2020, ch. 92, § 2.) [¶] Specifically, Assembly Bill 1869
abrogated the authority to impose and collect 23 different
administrative fees . . . .” (People v. Greeley (2021) 70
Cal.App.5th 609, 625.)
2
Assembly Bill 1869 did not abrogate the authority to
impose and collect a restitution fine. Accordingly, the trial court
did not err in concluding that appellant’s restitution fine was not
subject to Assembly Bill 1869.
Assembly Bill 177
Assembly Bill 177 (2021–2022 Reg. Sess.) amended section
1465.9, subdivision (b) to provide that “[o]n and after January 1,
2022 the balance of any court-imposed costs pursuant to [s]ection
. . . 1202.4 [the restitution fine] . . . as [that] section[ ] read on
December 31, 2021, shall be unenforceable and uncollectible and
any portion of a judgment imposing those costs shall be vacated.”
(Stats. 2021, ch. 257, § 35, italics added.)
Assembly Bill 177 repealed and re-enacted section 1202.4
but eliminated former subdivision (l), which authorized a county's
board of supervisors to “impose a fee to cover the actual
administrative cost of collecting the restitution fine, not to exceed
10 percent of the amount ordered to be paid, to be added to the
restitution fine and included in the order of the court, the
proceeds of which shall be deposited in the general fund of the
county.” (Stats. 2021, ch. 257, §§ 19, 20.) To harmonize amended
section 1465.9, subdivision (b) and current section 1202.4, we
construe section 1465.9, subdivision (b) as rendering
unenforceable and uncollectable only an administrative fee
imposed to cover the cost of collecting the restitution fine.
Section 2 of Assembly Bill 177 provides, “It is the intent of the
Legislature to eliminate the range of administrative fees that
agencies and courts are authorized to impose to fund elements of
the criminal legal system and to eliminate all outstanding debt
incurred as a result of the imposition of administrative fees.”
(Stats. 2021, ch. 257, § 2, italics added.)
3
Because appellant’s sentence did not include a fee to cover
the cost of collecting the restitution fine, the trial court did not
err in concluding that appellant’s restitution fine was not subject
to Assembly Bill 177.
Appellant’s Other Contentions
In his supplemental brief appellant contends that his
sentence is “illegal, void and correctable at any time” because at
sentencing the trial court imposed a two-year term for the
conviction of felon in possession of a firearm and ordered it to run
concurrently with the 50-year-to-life sentence imposed for the
murder and firearm enhancement. Appellant insists, “[T]he law
is clear in this matter, a sentencing court must impose all
determinative prison terms consecutively to any indetermatively
[sic] imposed prison terms.” Appellant is mistaken. “Where, as
here, the trial court imposes an indeterminate life sentence and a
determinate sentence, it has discretion to decide whether the
sentences shall be served concurrently or consecutively.” (People
v. Galvez (2011) 195 Cal.App.4th 1253, 1264.)
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157,
appellant claims the trial court “imposed the maximum amount
[of the restitution fine] against [him] without any chance to be
heard” and without determining whether he had the ability to
pay this amount.2 The Dueñas issues are forfeited because
appellant failed to raise them below. (People v. Lowery (2020) 43
Cal.App.5th 1046, 1054 [“We stand by the traditional rule that a
party must raise an issue in the trial court if they would like
appellate review”].)
2The issues raised in Dueñas are pending before our
Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47,
review granted Nov. 13, 2019, S257844.
4
Moreover, appellant has not shown that, if he had raised
the Dueñas issues below, the trial court would have had
jurisdiction to consider them. “The general rule is that ‘once a
judgment is rendered and execution of the sentence has begun,
the trial court does not have jurisdiction to vacate or modify the
sentence.’ [Citations.] And, ‘[i]f 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.’” (People v. King (2022) 77
Cal.App.5th 629, 634; see also People v. Torres (2020) 44
Cal.App.5th 1081, 1083.)
Finally, appellant “requests the Court to independently
review the record for . . . any other arguable issues in accord with
People v. Wende [(1976)] 25 Cal.3d 436.” Wende is inapplicable
because appellant’s judgment of conviction was previously
affirmed on direct appeal and his present appeal is from a
postjudgment order. (Serrano, supra, 211 Cal.App.4th at p. 503
[“Where a defendant has been afforded all the constitutional
protections of a first appeal of right, . . . we find that he is not
entitled to . . . Wende procedures in subsequent appeals”].)
Disposition
The order denying appellant’s postjudgment motion is
affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J. CODY, J.
5
Gilbert A. Romero, Judge
Superior Court County of Ventura
______________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Respondent.