Filed 1/14/15 P. v. James CA2/4

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                          B254826

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA115617)
         v.

JAWAD LATIF JAMES,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Laura F.
Priver, Judge. Affirmed.
         Jonathan B. Steiner and Jill Ishida, under appointment by the Court of Appeal, for
Defendant and Appellant.
         No appearance for Plaintiff and Respondent
       Sixteen years after the unsuccessful appeal of his first degree murder conviction,
appellant Jawad Latif James filed a “Motion for Modification of Sentence Pursuant to
Penal Code § 1202.4(b),” challenging the $10,000 restitution fine imposed upon him in
1997. The trial court denied James’ motion, and he timely appealed. His court-appointed
counsel filed an opening brief raising no issues. (See People v. Wende (1979) 25 Cal.3d
436, 441 (Wende).) Following People v. Serrano (2012) 211 Cal.App.4th 496, 503,
review den. Mar. 13, 2013 (Serrano), we conclude that “[w]here a defendant has been
afforded all the constitutional protections of a first appeal of right, including the right to
Wende review where appropriate, . . . he is not entitled to Anders [v. California (1967)
386 U.S. 738]/Wende procedures, including collateral attacks on the judgment.”
Nonetheless, because James has filed a supplemental brief with this court, we address the
issues he raises. We find that the trial court did not err, and we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In January 1997, James was convicted of first degree murder during the attempted
commission of a robbery (Pen. Code, §§ 187, & 190.2, subd. (a)(17); count 1),1 attempted
robbery (§§ 664/211; count 2), and assault with a firearm (§245, subd. (a)(2); count 3),
during which offenses a principal was armed with a firearm (§ 12022, subd. (a)(1)). He
was sentenced to prison for life without the possibility of parole on count 1, plus a three-
year middle term on count 3, and one year each for the principal armed enhancement on
count 1 and count 3. The court also imposed a $10,000 restitution fine pursuant to
section 1202.4. James did not make any objection to the fine at his sentencing hearing.
       James appealed his judgment of conviction, and in December 1997 this court
affirmed. James also filed a petition for rehearing, which this court denied. James then
petitioned the California Supreme Court for review, and in April 1998 the Court denied
James’ petition.
       On December 23, 2013, James filed a motion to modify his sentence, seeking to
reduce his restitution fine. James contended that the trial court erred in imposing the


1
       All further statutory references are to the Penal Code.

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$10,000 maximum under section 1202.4 without considering his ability to pay the fine.
He argued that, in light of the rates of pay for work performed by prison inmates, it is
impossible for him to pay a $10,000 fine from his wages during his lifetime.
Accordingly, James requested a reduction of his fine to $200, the minimum under section
1202.4. In January 2014, the court denied James’ motion on the ground that the section
1202.4 restitution fund fine “is not dependent on defendant’s ability to pay.” James
timely appealed.
       Counsel appointed to represent James on appeal reviewed the record, filed an
opening brief which raised no issues, and requested that this court conduct an
independent review of the record. (See Wende, supra, 25 Cal.3d at p. 441.)
       We directed counsel to send the record on appeal and a copy of the opening brief
to James. We also advised James that he had 30 days in which to “submit by brief or
letter any grounds of appeal, contentions, or argument which appellant wishes this court
to consider.” James responded by letter, contending that the order of restitution
constitutes cruel and unusual punishment in violation of his rights under the Eighth
Amendment because he will never be able to pay off the fine. He further contended that
the fine was “not in the spirit of the law” because a portion of the funds James’ family
and friends gift to him are deducted and applied to the fine, forcing them to pay it.
                                       DISCUSSION
A.     James Is Not Entitled to Wende Review
       James’ appointed counsel filed a no-issue brief and requested that this court
“independently review the entire record on appeal for arguable issues” pursuant to
Wende. The Wende procedure was designed to protect indigent criminal defendants’
federal constitutional right to effective assistance of counsel in the first appeal of right
from their convictions. (People v. Kelly (2006) 40 Cal.4th 106, 118; see also Serrano,
supra, 211 Cal.App.4th at p. 500; Wende, supra, 25 Cal.3d at pp. 441–442.) Our
Supreme Court—and, ultimately, the United States Supreme Court (see Smith v. Robbins
(2000) 528 U.S. 259, 276)—determined that the Wende requirement that the appellate
court undertake a complete review of the record when counsel is unable to identify any

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arguable issue on appeal adequately implements the mandates of Anders v. California
(1967) 386 U.S. 738, in first appeals of right. (Serrano, supra, 211 Cal.App.4th at p.
500; People v. Kelly, supra, 40 Cal.4th at p. 119.)
       “Both the United States Supreme Court and the California Supreme Court have
concluded that due process does not require Anders/Wende review other than in the first
appeal of right from a criminal conviction.” (Serrano, supra, 211 Cal.App.4th at p. 500,
citing Pennsylvania v. Finley (1987) 481 U.S. 551, 555 (Finley), and In re
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536–537.) In Finley, the United States
Supreme Court ruled that the federal constitutional “right to appointed counsel extends to
the first appeal of right, and no further.” (Finley, supra, 481 U.S. at p. 555.)
Accordingly, the Court reasoned, “access to a lawyer is the result of the State’s decision,
not the command of the United States Constitution.” (Id. at p. 556.) And since Anders
(and Wende) primarily are concerned with ensuring the right to effective counsel, a
defendant who “has no underlying constitutional right to appointed counsel . . . has no
constitutional right to insist on the Anders procedures which were designed solely to
protect that underlying constitutional right.” (Id. at p. 557.) The California Supreme
Court has relied on Finley to hold that “[t]he independent judicial review mandated by
Anders . . . applies only to a defendant's first appeal as of right.” (People v. Kelly, supra,
40 Cal.4th at p. 119.)
       The instant case is not a first appeal of right. Although it “originat[ed] in a
criminal context, [it] is not a first appeal of right from a criminal prosecution, because it
is not an appeal from the judgment of conviction.” (Serrano, supra, 211 Cal.App.4th at
p. 501.) “While the State of California affords defendant the right to appointed counsel
in an appeal from a postconviction motion to vacate judgment, that right is a state created
right, not a constitutional one.” (Ibid.; see also Finley, supra, 481 U.S. at pp. 555–556.)
And because James lacks a federal constitutional right to counsel for his similarly aimed
“Motion for Modification of Sentence Pursuant to Penal Code § 1202.4(b),” “he is not
entitled to Anders/Wende review when appointed counsel finds no arguable issues on
appeal.” (Serrano, supra, 211 Cal.App.4th at p. 501.)

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       Thus, after his appointed counsel failed to discern any arguable issues, she was
obligated only to “(1) inform the court he or she has found no arguable issues to be
pursued on appeal; and (2) file a brief setting forth the applicable facts and the law.”
(Ben C., supra, 40 Cal.4th at p. 544; Serrano, supra, 211 Cal.App.4th at p. 503.) Here, as
in Serrano, the Wende brief filed by counsel fulfills her obligations. (See Serrano, supra,
211 Cal.App.4th at p. 503.)
       “Upon receipt of the brief from counsel, the court will inform defendant of his
right to file a supplemental brief. The court will then either retain the appeal or dismiss it
on our motion.” (Serrano, supra, 211 Cal.App.4th at p. 503.) Here, unlike the appellant
in Serrano, James filed a supplemental brief in the form of a letter. Accordingly, while
James is not entitled to Wende review, we do address the issue that James raises in this
appeal.
B.     The Court Did Not Err in Denying Defendant’s Motion
       James contends that the court erred by failing to take into consideration his ability
to pay when imposing the $10,000 victim restitution fine. We find no error.
       First, James forfeited this claim by failing to object at his sentencing hearing.
(People v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson); People v. Gamache (2010) 48
Cal.4th 347, 409 (Gamache).) Just as it does now, at the time of his 1995 crime and his
1997 sentencing, section 1202.4, subdivision (d), called for the court to consider a
defendant’s ability to pay--among many other factors--in setting a restitution fine. James
could have objected at the time if he believed inadequate consideration was being given
to this factor. (Ibid.)
       Second, James’ claim fails on the merits. In 1995 and 1997, as it does today,
section 1202.4, subdivision (d), placed the burden of demonstrating inability to pay on
the defendant. But James “‘points to no evidence in the record supporting his inability to
pay, beyond the bare fact of his impending incarceration. Nor does he identify anything
in the record indicating the trial court breached its duty to consider his ability to pay; as
the trial court was not obligated to make express findings concerning his ability to pay,
the absence of any findings does not demonstrate it failed to consider this factor. Thus,

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we cannot say on this record that the trial court abused its discretion.’ (Gamache, supra,
48 Cal.4th at p. 409.)” (Nelson, supra, 51 Cal.4th at p. 227.)
       James’ contention that his fine violates his Eighth Amendment right to be free
from cruel and unusual punishment is belied by our Supreme Court’s repeated affirmance
of maximum restitution fines under substantially similar circumstances. (Nelson, supra,
51 Cal.4th at p. 227; Gamache, supra, 48 Cal.4th at p. 409.) And contrary to James’
contention, the fact that a portion of the monetary gifts he receives from friends and
family is deducted and applied to his fine is not inconsistent with the spirit of the law.
Rather, it is in complete compliance with the law governing prisoner repayment of
restitution fines, which does not distinguish between deductions from the wages and trust
account deposits of a prisoner. (Pen. Code, § 2085.5, subd. (a).) In fact, that James
receives occasional monetary gifts actually indicates that he has and may continue to
have funds from which restitution could be paid. (See People v. Lewis (2009) 46 Cal.4th
1255, 1321.)
                                      DISPOSITION
       The order is affirmed.


               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                        COLLINS, J.


We concur:




WILLHITE, Acting P. J.




MANELLA, J.



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