Filed 6/12/15 P. v. Lamb CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066906

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD186673)
                                                                    (Super. Ct. No. SCD182753)
MICHAEL LEE LAMB,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Kathleen

Lewis, Judge. Affirmed.

         Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by

the Court of Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant Michael Lee Lamb's appointed appellate counsel has filed a brief

asking this court to review the record for error as mandated by People v. Wende (1979)

25 Cal.3d 436. We affirm.
                                      BACKGROUND1

       In April 2006 a jury convicted Lamb of two counts of first degree residential

burglary (Pen. Code,2 §§ 459, 460). Lamb admitted he had suffered 12 strike priors and

two serious felony prior convictions.

       In early August 2007, the court sentenced Lamb to an indeterminate prison term of

50 years to life plus a 10-year determinate term. The sentence consisted of two

consecutive terms of 25 years to life (one for each of his current burglary convictions),

plus two consecutive five-year terms for his two prior serious felony convictions.

       Of particular importance here, the court during sentencing ordered Lamb to pay

both a $10,000 restitution fine (§ 1202.4, subd. (b), hereafter § 1202.4(b)) and victim

restitution (§ 1202.4, subd. (f), hereafter § 1202.4(f)) in the amount of $4,400 ($3,600 to

one victim and $800 to the other victim). Neither Lamb nor his counsel objected to the

restitution fine order or the victim restitution order.

       Lamb appealed and this court affirmed the judgment in December 2008 in an

unpublished opinion (People v. Lamb (Dec. 30, 2008, D051786) [nonpub. opn.], hereafter




1      The facts underlying Lamb's convictions in this case are not relevant to this
appeal, which challenges the court's denial of his motion for modification of his sentence
(discussed, post). Thus, we need not summarize the underlying facts.

2      All further statutory references are to the Penal Code.

                                               2
Lamb I).3 Lamb did not challenge the restitution fine order or the victim restitution order

in Lamb I.

       About seven years later, on September 10, 2014, Lamb filed in propria persona a

motion to modify his sentence, challenging the orders requiring him to pay a $10,000

restitution fine and $4,400 in victim restitution. He complained that "it is absolutely

impossible" for him to pay the $14,400 out of his prison wages, Citing section 1202.4,

Lamb asserted that the orders requiring him to pay the $14,400 should be vacated and the

amount reduced to $200 because "the record does not support that the trial court made a

finding on [his] ability to pay the restitution/fine or that the trial court was aware [it was

required] to hold a restitution hearing."

       That same day the court summarily denied Lamb's motion. Acting in propria

persona, Lamb filed a timely notice of appeal challenging the order summarily denying

his motion.

                                        DISCUSSION

       Appointed appellate counsel has filed a brief summarizing the proceedings below.

Counsel presents no argument for reversal of the order denying Lamb's motion for

modification of his sentence, but counsel asks this court to review the record for error as

mandated by People v. Wende, supra, 25 Cal.3d 436. Counsel raises no possible, but not

arguable, issues. (See Anders v. California (1967) 386 U.S. 738.)




3      We take judicial notice of this court's opinion in Lamb I. (Evid. Code, §§ 452,
subd. (d), 459, subd. (a).)
                                               3
       On February 17, 2015, we granted Lamb permission to file a brief on his own

behalf. He has not responded.

       A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and

Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate

issue. Lamb forfeited his claim of sentencing error by failing to object at his 2007

sentencing to the restitution fine order and the victim restitution order he now challenges

in this appeal. (People v. McCullough (2013) 56 Cal.4th 589, 593 [a constitutional right,

or a right of any other sort, may be forfeited in criminal cases by the failure to make

timely assertion of the right before a tribunal having jurisdiction to determine it]; People

v. Gamache (2010) 48 Cal.4th 347, 409 [defendant, by failing to object at his sentencing

hearing, forfeited his claim that the trial court erroneously failed to consider his ability to

pay when it imposed a $10,000 victim restitution fine under section 1202.4]; accord,

People v. Nelson (2011) 51 Cal.4th 198, 227.) Even if he had made a timely and specific

objection to those orders at the sentencing hearing, he forfeited his claim of sentencing

error by failing to raise it in Lamb I.

       Accordingly, we affirm the order denying Lamb's motion for modification of his

sentence. Lamb has been adequately represented by counsel in this appeal.




                                               4
                              DISPOSITION

     The order is affirmed.


                                            NARES, J.

WE CONCUR:


McCONNELL, P. J.


HALLER, J.




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