People v. Henderson CA4/2

Filed 8/14/23 P. v. Henderson CA4/2
Opinion after vacating prior opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080576, E080577, E080578 &
E080579
v.
(Super. Ct. Nos. FSB270578,
LEONARD HENDERSON, FSB07913, FSB265354 &
FSB261167)
Defendant and Appellant.
OPINION
APPEALS from the Superior Court of San Bernardino County. Harold J. Wilson,
Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant Leonard Henderson appeals the trial court’s
postjudgment orders from four different cases denying his request to vacate the restitution
1
1
fines under Assembly Bill No. 1869. Counsel has filed a brief under the authority of
People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) , requesting this court to conduct
an independent review of the record. In addition, defendant has had an opportunity to file
a supplemental brief with this court and has not done so. Although defendant’s counsel
filed a brief raising no issues and defendant was notified that failure to timely file a
supplemental brief may result in the dismissal of the appeal as abandoned, we have
exercised our discretion to conduct an independent review of the record. (People v.
Delgadillo (2022) 14 Cal.5th 216, 228, 232.) For the reasons set forth post, we affirm the
trial court’s orders because defendant’s appeals present no meritorious arguable issues.
II.
PROCEDURAL BACKGROUND
In May 1986, in case No. FSB261167, defendant pled guilty to burglary (Pen.
2
Code, § 459) and admitted that he had previously sustained a prior prison term (§ 667.5,
subd. (b).) Defendant was sentenced to three years in prison and was ordered to pay a
restitution fine in the amount of $3,000.
1
We consolidated the appeals from four separate cases (case Nos. E080576,
E080577, E080578 & E080579) defendant had filed for purposes of briefing and
decision. We note that due to the age of the cases, the clerk of the superior court has
submitted an affidavit that the reporter’s transcripts for the guilty pleas and sentencing
are unavailable.
2
All future statutory references are to the Penal Code unless otherwise stated.
2
In March 1988, an information was filed in case No. FSB265354 charging
defendant with second degree burglary (§ 459), and further alleging defendant had
3
previously sustained two prior prison terms (§ 667.5, subd. (b)).
In April 1990, an information was filed in case No. FSB270578 alleging defendant
had committed two counts of residential burglary (§ 459; counts 1 & 5); one count of
assault with intent to commit rape (§ 220; count 2); two counts of assault with a deadly
weapon (§ 245, subd. (a)(1); counts 3 & 6); and one count of attempted kidnapping
(§ 664/207, subd. (a); count 4). As to counts 2, 3, and 4, the information further alleged
that defendant had personally inflicted great bodily injury (§ 12022.7.) As to counts 2, 4,
5, and 6, the information also alleged that defendant had used a deadly weapon
(§ 12022.3) in the commission of the offenses. The information further alleged that
defendant had sustained three prior prison terms (§ 667.5, subd. (b)).
In July 1990, the jury found defendant guilty on count 2 (assault with intent to
rape), count 3 (assault), and count 5 (residential burglary). The jury acquitted defendant
of counts 4 and 6.
In August 1990, in case No. FSB270578, the trial court sentenced defendant to 10
years, four months in prison. The sentence included a restitution fine in the amount of
$6,000.
3
The clerk has submitted an affidavit that the minute orders for the guilty plea or
sentencing are not available.
3
In July 1995, an amended information was filed in case No. FSB07913 charging
defendant with one count of burglary (§ 459; count 1); two counts of forcible rape (§ 261,
subd. (a)(2); counts 2 & 3); one count of robbery (§ 211; count 4); and one count of felon
in possession of a firearm (former § 12021, subd. (a); count 5). As to counts 2, 3 and 4,
the information further alleged that defendant had inflicted great bodily injury on the
victim (§ 12022.8.) As to count 4, the information also alleged that defendant had
personally used a firearm (§ 12022.5, subd. (a)). In addition, the information alleged that
defendant had sustained two prior strike convictions (§ 667, subds. (a)-(d)), two prior
serious felony convictions (§ 667, subd. (a)), and three prior prison terms (§ 667.5, subd.
(b)).
In August 1995, in case No. FSB07913, defendant pled guilty to counts 2, 4 and 5,
and admitted that he had sustained the prior conviction allegations. In return, he was
sentenced to a stipulated term to 25 years to life in prison. The sentence included a
$10,000 restitution fine.
In 2019, defendant filed motions to vacate unpaid restitution fines as to all cases,
asserting that the court failed to consider his ability to pay the restitution fines in
violation of his rights under the Eighth and Fourteenth Amendments. The trial court
denied the motions ex parte.
In November 2022, defendant filed motions in all cases to vacate his unpaid
restitution fines under Assembly Bill No. 1869, asserting the fines were no longer
4
enforceable or authorized. The trial court denied the motions ex parte. Defendant timely
appealed in each case.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case and a
summary of the procedural background. (See also People v. Wende (1979) 25 Cal.3d 436(Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Counsel considered
potential issues on appeal but found no specific arguments as grounds for relief, and
requests that we exercise our discretion and independently examine the appellate record
for any arguable issues. Under Anders, which requires “a brief referring to anything in
the record that might arguably support the appeal,” (Anders, supra, at p. 744) counsel
raises the issues of whether the trial court erred in denying defendant’s request to vacate
the restitution fines and other fines and fees under Assembly Bill No. 1869. We offered
defendant an opportunity to file a personal supplemental brief, and he has not done so.
In Delgadillo, supra, 14 Cal.5th 216, the California Supreme Court held that
Wende and Anders procedures do not apply in appeals from the denial of a section 1172.6
postjudgment petition. (Delgadillo, supra, at pp. 224-226.) Thus, we need not examine
the entire record ourselves to look for arguable grounds for reversal. (Id. at p. 228.)
Because defendant’s counsel filed a brief raising no issues, and defendant was given an
opportunity to file a personal supplemental brief but declined, we may dismiss the appeal
5
as abandoned. (Id. at p. 232.) However, we have discretion to conduct Wende review
even when it is not required. (Delgadillo, supra, 14 Cal.5th at p. 232.) Although it is
questionable whether a Wende review applies in postconviction proceedings such as in
this case, we have exercised our discretion and conducted a review pursuant to Wende.
Assembly Bill No. 1869 amended the Penal Code by adding section 1465.9, which
provides that “the balance of any court-imposed costs pursuant to section 987.4,
subdivision (a) of [s]ection 987.5, [s]ections 987.8, 1203, 1203.1e, 1203.016, 1203.018,
1203.1b, 1208.2, 1210.15, 3010.8, 4024.2, and 6266, as those sections read on June 30,
2021, shall be unenforceable and uncollectible and any portion of a judgment imposing
those costs shall be vacated.” (Stats. 2020, ch. 92, § 62; § 1465.9.) Section 1465.9 does
not include section 1202.45, which authorizes the imposition of parole revocation fines.
In a subsequent statute, Assembly Bill No. 177, the Legislature amended section
1465.9 to provide that “[o]n and after January 1, 2022 the balance of any court-imposed
costs pursuant to [s]ection . . . 1202.4 . . . as [that] section[ ] read[s] on December 31,
2021, shall be unenforceable and uncollectible and any portion of a judgment imposing
those costs shall be vacated.” (§ 1465.9, subd. (b).) The Legislature’s purpose in
enacting this statute was “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.) As part of this legislation, the Legislature repealed a
provision allowing county boards of supervisors to “impose a fee to cover the actual
6
administrative cost of collecting the restitution fine” (former § 1202.4, subd. (1)), while
keeping the remainder of section 1202.4 the same. There is no indication that the
Legislature intended to provide relief from restitution fines, as challenged by defendant in
this case.
We are thus satisfied that defendant’s attorney has fully complied with the
responsibilities of counsel and no arguable issue exists. (People v. Kelly (2006) 40
Cal.4th 106, 126; Wende, supra, 25 Cal.3d at pp. 441-442.)
IV.
DISPOSITION
The orders denying defendant’s motions to vacate unpaid fines in all four cases are
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
RAPHAEL
J.
MENETREZ
J.
7