Opinion
H046215
11-06-2019
THE PEOPLE, Plaintiff and Respondent, v. PAMSHANG MASHANGVA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1519961)
In 2015, defendant Pamshang Mashangva pleaded no contest to possession of methamphetamine for sale. The trial court granted a three-year term of probation and imposed various fees and fines. In 2018, the court found Mashangva had violated the terms of his probation, whereupon the court terminated probation and sentenced him to serve 16 months in county jail. The court also ordered him to pay a $300 probation revocation fine, previously suspended.
Mashangva appealed from the 2018 order terminating his probation, and we appointed counsel. Appointed counsel filed an opening brief stating the case and the facts but raising no specific issues. After we reviewed the record under People v. Wende (1979) 25 Cal.3d 436 (Wende), we requested supplemental briefing from the parties on whether the trial court erred in the imposition of any fines or fees without determining whether Mashangva had an ability to pay. (See People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) [imposition of certain fines and fees without determining defendant's ability to pay was a violation of due process].)
For the reasons below, we conclude any claims under Dueñas are without merit, and we find no other arguable issue on appeal. We will affirm the judgment.
I. PROCEDURAL BACKGROUND
In 2015, Mashangva was charged with three counts: Count 1—transportation, sale, or distribution of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); count 2—possession of methamphetamine for sale (Health & Saf. Code, § 11378); and count 3—possession of codeine (Health & Saf. Code, § 11350, subd. (a)). He pleaded no contest to count 2. The trial court granted a three-year term of probation and imposed various fines and fees. These included a $330 restitution fund fine; a $50 drug lab fee; a $40 security fee; a $30 criminal assessment fee; a $129.75 booking fee; and $25 per month in probation fees.
The facts of the offenses are immaterial to this opinion. --------
In 2018, the trial court found Mashangva had violated the terms of his probation by failing to provide proof of gainful employment or training and failing to provide a current address. The court sentenced him to 16 months in county jail and imposed a $300 probation revocation restitution fine, which had previously been suspended.
Mashangva timely appealed from the 2018 order revoking his probation. We appointed counsel to represent Mashangva in this court. Appointed counsel filed an opening brief stating the case and the facts, but raising no specific issues on appeal. After we reviewed the record under Wende, we requested supplemental briefing from the parties on whether the trial court erred in the imposition of any fines or fees without determining whether Mashangva had an ability to pay. (See Dueñas, supra, 30 Cal.App.5th 1157.)
II. DISCUSSION
In response to the request for letter briefing, Mashangva argues that we must remand to the trial court for a hearing on his ability to pay the fines and fees under Dueñas, supra, 30 Cal.App.5th 1157. The Attorney General contends Mashangva forfeited his claim by failing to raise it below. Mashangva replies that his failure to raise the claim below does not constitute forfeiture because he could have foreseen the holding of Dueñas.
The trial court imposed most of the fines and fees at sentencing in 2015. The record does not show any appeal from that order. Accordingly, any claims for relief arising from that order are barred by the failure to appeal within 60 days. (Cal. Rules of Court, rule 8.308(a).) As to that portion of the 2018 order requiring Mashangva to pay the $300 probation revocation restitution fine under section 1202.44, the original imposition of the fine in 2015 was appealable, requiring a timely appeal to be taken at that time. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [an order granting probation and imposing sentence, the execution of which is suspended, is an appealable order].) Accordingly, any claim challenging the probation revocation fine is likewise forfeited.
Finally, our review of the record under Wende revealed no other arguable issue on appeal. Accordingly, we will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Elia, J.