Filed 11/5/15 P. v. Smith 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                      (El Dorado)
                                                            ----




THE PEOPLE,                                                                                  C078877

                   Plaintiff and Respondent,                                   (Super. Ct. No. S07CRF0275)

         v.

KONOLUS IRWIN SMITH,

                   Defendant and Appellant.




         Defendant Konolus Irwin Smith was sentenced on February 4, 2008, to two
concurrent terms of 25 years to life on convictions of corporal injury to a spouse or
cohabitant and making criminal threats. The judgment was affirmed on appeal and
remittitur issued on September 14, 2009.1 Thereafter, on February 2, 2015, defendant
filed a motion in the trial court seeking a reduction of his $10,000 restitution fine based


1We incorporate by reference the record in that case. (People v. Smith (May 22, 2009,
C058272) [nonpub. opn.].)


                                                             1
on his alleged inability to pay. The trial court denied the motion, noting defendant could
have, but did not, raise the issue in his previous appeal.2 Defendant appeals.
       Counsel for defendant filed an opening brief that sets forth the facts of the case
and asks this court to review the record and determine whether there are any arguable
issues on appeal.3 (People v. Wende (1979) 25 Cal.3d 436.) Having undertaken an
examination of the entire record, we find no arguable error that would result in a
disposition more favorable to defendant.
                                       DISPOSITION
       The trial court’s order is affirmed.




                                                /s/
                                              Blease, Acting P. J.

We concur:




         /s/
       Nicholson, J.




         /s/
       Robie, J.


2 See Warga v. Cooper (1996) 44 Cal.App.4th 371, 378 (a prior judgment is res judicata
as to matters raised in the prior proceeding as well as to those, which could have been
raised).
3 Defendant was advised by counsel of the right to file a supplemental brief within 30
days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant.

                                                2
