Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA157404
THE COURTIn 1998, Donald Eugene Joseph (appellant) was convicted of a 1997 attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664/187, subd. (a)) with trial court findings of the use of a knife (§ 12022, subd. (d)(1)) and the infliction of great bodily injury (§ 12022.7, subd. (a)). The trial court also found true that appellant had three prior serious felony convictions that qualified him for three 5-year enhancements, as well as sentencing pursuant to the “Three Strikes” law (§§ 667, 1170.12). On March 25, 1998, the trial court sentenced him to an indeterminate term of 25 years to life, plus a determinate term of 19 years, comprised of one year for the weapon-use enhancement, three years for the infliction of great bodily injury, and 15 years for the three 5-year serious felony enhancements.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appealed from the judgment. In November 1999, this court ordered the judgment modified to impose a parole revocation restitution fine, and ordered the judgment affirmed, as modified. (People v. Donald E. Joseph, B121088, filed Nov. 17, 1999 [nonpub. opn.].) On February 2, 2000, the California Supreme Court denied his petition for review. On April 4, 2000, the remittur issued. The time for filing a petition for a writ of certiorari expired on May 4, 2000. (U.S. Supreme Ct. Rules, rule 13 [A petition for a writ of certiorari seeking review of a judgment of a lower court that is subject to discretionary review by the state court of last resort is timely when it is filed with the clerk within 90 days after entry of the order denying discretionary review].)
On January 22, 2007, the United States Supreme Court issued its decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
On April 4, 2007, appellant caused to be filed in the trial court an “Application and/or Petition for Time Modification. Cunningham v. California 549 U.S. ___ (2007).” Therein, appellant requested “a Time Reduction and/or Modification” of time based on the new ruling in the decision in Cunningham.
This court ordered the superior court file transmitted to it and then ordered the appellate record augmented with the “Application and/or Petition for Time Modification Cunningham v. California 549 U.S. ___ (2007),” filed by appellant in the trial court on April 4, 2007. This court has given the parties notice that the record has been augmented. (Cal. Rules of Court, rules 8.155, 8.340.)
On April 7, 2007, the trial court denied the application and/or petition, and appellant appealed from that order. In B198894, his appointed appellate counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436, 441.) This court examined the record, including the Cunningham issue appellant had raised, and affirmed the judgment in an unpublished opinion, People v. Donald Eugene Joseph, B198894, filed March 13, 2008.
On June 18, 2007, appellant filed a document in the trial court entitled “Petition for Writ of Habeas Corpus,” in which he raised a contention that the decision in Cunningham required a jury determination of the aggravating facts that permitted the trial court to apply the Three Strikes sentencing scheme to him. Also, on August 2, 2007, he filed a “Notice of Motion to Vacate Restitution/Fine Imposition.” In this motion, appellant requested that the trial court vacate the imposition of a $5,000 section 1202.4 restitution fine as he is indigent and unable to pay the fine, and the fine was imposed without a determination of his ability to pay. He asks that the restitution fine be reduced to $200.
Appellant requested that the petition and motion be considered with the above “Application and/or Petition for Time Modification. California v. Cunningham 549 U.S. ___ 2007.”
On August 13, 2007, the trial court denied the petition for a writ of habeas corpus. It said that appellant had previously raised his Cunningham issue in his application filed April 4, 2007, and no new information contained in the present petition required a different ruling. On that same date, the trial court read, considered, and denied the notice of motion to vacate the restitution fine.
On September 8, 2007, appellant filed a “Notice of Appeal” from the order denying his petition for a writ of habeas corpus and denying his motion to vacate the order imposing the restitution fine.
The trial court treated the document filed September 8, 2007, as a notice of appeal from the trial court’s order of August 13, 2007.
We appointed counsel to represent appellant on this appeal.
After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.
On May 28, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
No response has been received to date.
Apart from several procedural issues, appellant’s Cunningham claim lacks merit. The decision in Cunningham does not apply retroactively to sentences for which all avenues of direct appeal have been exhausted. (Teague v. Lane (1989) 489 U.S. 288, 299-316; In re Johnson (1970) 3 Cal.3d 404, 410; see People v. Amons (2005) 125 Cal.App.4th 855, 864-870.)
With respect to the imposition of the restitution fine, appellant provided the trial court with no details of what occurred at his sentencing hearing and during the imposition of the restitution fine. Presumably, the $5,000 restitution fine was properly imposed as the minimum term of appellant’s indeterminate term exceeds 25 years in state prison. (§ 1202.4, subd. (b)(2).) Furthermore, where a defendant adduces no evidence of inability to pay during his sentencing proceedings, a trial court is required to presume the ability to pay. As a defendant’s ability to pay is supplied by an implied presumption, the record need not contain evidence of an ability to pay. (§ 1202.4, subds. (b), (c) & (d); see People v. Romero (1996) 43 Cal.App.4th 440, 449.)
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d 436, 441.)
The orders under review are affirmed.
We also note that this appellate record contains a petition for a writ of habeas corpus filed by appellant in the year 2000. The year 2000 petition for a writ of habeas corpus is not the basis for the current appeal.