Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 99F02087.
HULL, J.
In January 2001, in case No. C034006, this court affirmed defendant Jason Michael Judd’s conviction of second degree murder (Pen. Code, §§ 187, subd. (a), 189), reversed an on-bail sentence enhancement (Pen. Code, § 12022.1), and remanded to the trial court for further proceedings on the enhancement allegation only. Because defendant’s conviction long ago became final, the facts of the offense are not set forth in this opinion.
Following issuance of our remittitur, the prosecution elected not to proceed on the enhancement allegation. The trial court struck the allegation and ordered that an amended abstract be prepared. In May 2001, an amended abstract was filed showing a $10,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b).
In 2006, defendant personally filed an ex parte motion for modification of sentence pursuant to Penal Code section 1170, subdivision (d). The motion argued that the $10,000 restitution fine should be reduced to $200 because there was insufficient evidence he had the ability to pay the fine, as required by former Government Code section 13967, subdivision (a). The motion argued that defendant’s failure to object at the time of imposition of the fine did not forfeit the issue.
In November 2006, the trial court entered a written order denying defendant’s motion. The order noted that the motion relied on statutes that were revised before the date of the crime; an ability to pay determination need not be made on the record; defendant’s fine was justified by the seriousness of the offense; he did not object to the fine when it was imposed; and he failed to show that he is unable to work while in prison to make payments toward the fine. No appeal was taken from this determination.
In August 2008, defendant personally filed a motion for modification and reconsideration of his sentence. He also requested appointment of counsel based on his indigence. In September 2008, the trial court entered an order denying defendant’s motion and his request for appointment of counsel.
In October 2008, defendant filed a notice of appeal from the denial of his motion. Evidently by mistake, he checked the box indicating that the appeal challenges the validity of a plea or admission. He also requested a certificate of probable cause. The certificate request argued that the amount of money being taken from defendant’s pay and gifted money is improper, that he is unable to take care of himself, and that the restitution fine violates due process and is cruel and unusual punishment.
The request for a certificate of probable cause was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) 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. 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 judgment is affirmed.
We concur: RAYE, Acting P. J., ROBIE, J.