Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA118400 Robert J. Schuit, Judge. Affirmed.
Jonathan B. Steiner and Lisa Ferreira, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Anthony Evans appeals from an order denying his motion for modification of sentence. Previously he was convicted of one count of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)). He also admitted that he had suffered a prior serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and admitted that he had three prior convictions for which he served prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for 19 years and appealed. Following our independent review pursuant to People v. Wende (1979) 25 Cal.3d 436, 441, we filed an opinion on February 4, 1997, affirming the judgment.
On July 16, 2008, appellant filed a motion dated July 14, 2008, to modify his sentence, claiming the trial court improperly imposed a $3,000 restitution fine based upon the “apparent erroneous assumption that he could pay that fine out of his future wages while incarcerated.” He claimed the order must be stricken because there was insufficient evidence of his ability to pay. Appellant stated that the rate of pay for work performed by prison inmates is set in the California Department of Corrections and Rehabilitations Operations Manual and ranges from $12 per month to $56 per month and that not all institutions follow the manual. He additionally asserted that pursuant to Penal Code section 2085.5, only a portion of wages is deducted for credit against the prisoner’s restitution fine. Appellant additionally argued that the court could not have assumed he would be able to pay the fine from earnings from employment after his release from prison in that he had only worked occasionally and that it was doubtful he could earn much after being away from the trade for so long and being an “ex-con on parole.” Appellant referred to Government Code section 13967 and Penal Code section 1202.4 as statutory authority for his claims. The trial court denied the motion.
In an order dated July 16, 2008, the trial court stated it was in receipt of a copy of appellant’s previously filed motion for modification of sentence and deemed the copy as the original. The court noted it was making this order as the original motion could not be located. The court also noted “the new original has been re-dated by the petitioner/defendant as July 14, 2008.”
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On November 14, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On February 18, 2009, he filed a supplemental brief asserting that at the time of sentencing, the trial court failed to hold a hearing to determine his ability to pay and summarily imposed the sum of $3,000. He asserted that at the time he filed his motion to modify his sentence he had already paid the sum of $1,344.11 and that the restitution fine should be reduced to the amount already paid or to the minimum amount of $200. He claimed he had been living on “prison pay” suffering severe limitations on his ability to purchase hygiene items at the inmate canteen.
While appellant relies on both Government Code section 13967 and Penal Code section 1202.4 to support his claims, in 1994 “the Legislature amended Government Code section 13967 and Penal Code section 1202.4 so as to delete provisions related to a restitution fine from section 13967 and to add them to Penal Code section 1202.4. [Citation.]” (People v. Romero (1996) 43 Cal.App.4th 440, 448.)
At all times relevant Penal Code section 1202.4, subdivision (b) provided, “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000) if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000) if the person is convicted of a misdemeanor. In setting a felony restitution fine in excess of two hundred dollars ($200), the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.
(c) The restitution fine shall be in addition to any other penalty or fine imposed and shall be ordered regardless of the defendant’s present ability to pay. However, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the fine. When the waiver is granted, the court shall state on the record all reasons supporting the waiver. Except as provided in this subdivision, under no circumstances shall the court fail to impose the separate and additional restitution fine required by this section. This fine shall not be subject to penalty assessments as provided in Section 1464.
(d) In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred dollar ($200) or one hundred dollar ($100) minimum, the court shall consider any relevant factors including, but not limited to, the defendant’s ability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant’s ability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating lack of his or her ability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required....”
We have examined the entire record and are satisfied that no arguable issues exist. Under the statute, appellant had the burden to demonstrate his lack of ability to pay the restitution fine and at sentencing he did not. Indeed, he did not object to the amount of the restitution fine. Additionally, under the statute, the trial court need not hold a hearing unless one is requested. (See People v. Menius (1994) 25 Cal.App.4th 1290, 1297.) Upon filing the motion to modify his sentence, appellant again had the burden of demonstrating his lack of ability to pay the restitution fine and he did not do so. His motion was not supported by facts demonstrating his inability but rather indicated he had in fact paid a substantial portion of the restitution fine. (See People v. Romero, supra, 43 Cal.App.4th at pp. 448-449.) Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The order is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.