Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. YA063087
THE COURT:Appellant Rick Rivera appeals from the denial of his post-judgment motion to modify a restitution fine of $2,000, imposed at the time of sentencing in 2007 pursuant to Penal Code section 1202.4, subdivision (b). His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On October 20, 2010, we notified defendant of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. Appellant filed a letter to the court on November 4, 2010. We have reviewed the letter, as well as the entire record, and finding no arguable issues, affirm the order.
Appellant was convicted in 2007 of shooting at an occupied building, assault with an assault weapon (AK-47), assault with a firearm, shooting at an uninhabited building, and willful, deliberate, and premeditated attempted murder. The trial court sentenced him to 40 years to life plus 10 years, 4 months in prison. Among other fines and fees, the trial court imposed a restitution fine of $2,000, to be paid from prison earnings. Appellant appealed, and in 2008, we issued an opinion modifying the judgment by changing the life term to life in prison with the possibility of parole. We also struck the sentence enhancements applied by the trial court pursuant to Penal Code section 667.5. As so modified, we affirmed the judgment.
See People v. Rivera (Dec. 9, 2008, B208419) [nonpub. opn.].
In November 2009, appellant filed a motion to modify the sentence by striking or reducing the restitution fine. The trial court noted that appellant had first made his motion in April 2009, but it was not heard until May 10, 2010, because the file could not be located earlier due to a pending action on the remittitur from the court of appeal. In his motion, appellant asserted that the imposition of the restitution fine was unauthorized, because the court did not first determine his ability to pay the fine. He argued that his prison earnings were insufficient to enable him to pay, and asked that the fine be reduced to $200, with credit for $130.50, already paid.
The trial court considered appellant’s motion, and noted that it had considered all the relevant factors of Penal Code section 1202.4, subdivision (d). The trial court denied appellant’s motion, and at the same time, ordered the clerk to prepare an amended abstract of judgment in accordance with directions stated in our opinion in People v. Rivera, supra, B208419. Appellant filed a timely notice of appeal from the order denying his motion for modification.
As it did when appellant was sentenced, Penal Code section 1202.4, subdivision (d), provides in relevant part: “In setting the amount of the fine,... the court shall consider any relevant factors including,... the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission,... and the number of victims involved in the crime Consideration of a defendant’s inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability 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.” (See also Stats. 2005, ch. 240, § 10.5.)
In his letter to this court, appellant acknowledges that in support of his motion, he relied upon obsolete law, and that the fine was not unauthorized. However, he now contends that the Department of Corrections and Rehabilitation (Department) has failed to follow the trial court’s order to deduct payments from prison earnings. He contends that the credit of $130.50 was taken from a gift he received from a relative or friend, and asks that we order the Department to deduct payments only from earnings, and not from gifts. Appellant does not claim to have raised this issue with the prison authorities or in the trial court. Such a contention is not cognizable on appeal or in a habeas proceeding until he has exhausted all administrative remedies. (See In re Dexter (1979) 25 Cal.3d 921, 925.)
We conclude that defendant 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.)
The order is affirmed.