People v. Lamb CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD186673
- Trial judge
- Kathleen Lewis
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), Judith L. Haller, Judith D. McConnell
Analysis
The trial court summarily denied Lamb's in propria persona motion to modify his sentence to reduce restitution and fines, which the Court of Appeal affirmed. The appellate court held that Lamb forfeited his claims by failing to object at the original sentencing hearing and in his prior direct appeal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to modify sentence (restitution fine and victim restitution)“Lamb forfeited his claim of sentencing error by failing to object at his 2007 sentencing to the restitution fine order and the victim restitution order he now challenges in this appeal.” | unclear | error | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by appointed appellate counsel when no issues are raised.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any possible, but not arguable, issues.
- relied: People v. McCullough (2013) 56 Cal.4th 589 — Rights may be forfeited in criminal cases by the failure to make a timely assertion of the right before a tribunal having jurisdiction.
- relied: People v. Gamache (2010) 48 Cal.4th 347 — A defendant forfeits the claim that the trial court failed to consider ability to pay for a restitution fine by failing to object at sentencing.
- relied: People v. Nelson (2011) 51 Cal.4th 198 — Supports the principle that failure to object at sentencing results in forfeiture of sentencing claims.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record. It relies on established forfeiture principles to affirm the denial of the motion, noting that the issues were not raised in the prior direct appeal.
How this analysis was made · dispute it
unusual dispositionThe trial court summarily denied Lamb's in propria persona motion, filed seven years after sentencing, to modify his sentence by vacating or reducing a $10,000 restitution fine and $4,400 in victim restitution on the ground that his ability to pay had not been considered. On appeal under People v. Wende, appointed counsel raised no issues, Lamb filed no supplemental brief, and the Court of Appeal found no arguable issue, holding the claim forfeited by failure to object at sentencing and failure to raise it in the prior direct appeal, and affirmed the order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of Lamb's post-judgment motion to modify his sentence by vacating or reducing the section 1202.4(b) restitution fine and section 1202.4(f) victim restitution for lack of an ability-to-pay finding.“That same day the court summarily denied Lamb's motion.” | unclear | correct | agree with court The result is correct: a defendant who does not object at sentencing to a restitution fine on ability-to-pay grounds forfeits the claim (Gamache, Nelson, McCullough), and a claim available on direct appeal but not raised there cannot be revived by a later motion. The opinion does not, however, address whether the trial court had jurisdiction to entertain a motion to modify a restitution fine seven years after the judgment became final and sentence was executed; published authority (People v. Turrin) holds the trial court lacks such jurisdiction and that the proper disposition is dismissal of the appeal rather than affirmance. The court also did not note that ability to pay is not a factor at all for victim restitution under section 1202.4(f) and (g), and that the defendant bears the burden of showing inability to pay under section 1202.4(d). These omissions do not change the outcome for Lamb. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court and refer to anything in the record that might arguably support the appeal.
- relied: People v. McCullough (2013) 56 Cal.4th 589 — A right of any sort, including a challenge to a fee based on ability to pay, may be forfeited in a criminal case by failure to timely assert it before the tribunal with jurisdiction to decide it.
- relied: People v. Gamache (2010) 48 Cal.4th 347 — A defendant who fails to object at sentencing forfeits the claim that the court erroneously failed to consider ability to pay when imposing a $10,000 restitution fine under section 1202.4.
- relied: People v. Nelson (2011) 51 Cal.4th 198 — Failure to object at sentencing to a restitution fine on ability-to-pay grounds forfeits the claim on appeal.
- missed: People v. Turrin (2009) 176 Cal.App.4th 1200 — A trial court lacks jurisdiction to modify a restitution fine once the sentence has been executed and the judgment is final; an order denying such a motion is nonappealable and the appeal should be dismissed rather than the order affirmed.
The appellate opinion: sound with gaps — The court correctly concluded that Lamb's ability-to-pay challenge was forfeited by his failure to object at sentencing and to raise it in his first appeal, citing controlling Supreme Court authority. It did not address the threshold question of the trial court's jurisdiction to modify a long-final sentence, which under published authority would call for dismissal of the appeal rather than affirmance, nor the statutory point that ability to pay is irrelevant to victim restitution.
Opinion
Filed 6/12/15 P. v. Lamb CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066906
Plaintiff and Respondent, v. (Super. Ct. No. SCD186673) (Super. Ct. No. SCD182753) MICHAEL LEE LAMB, Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kathleen Lewis, Judge. Affirmed.
Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Michael Lee Lamb's appointed appellate counsel has filed a brief asking this court to review the record for error as mandated by People v. Wende (1979)
25 Cal.3d 436. We affirm. BACKGROUND1 In April 2006 a jury convicted Lamb of two counts of first degree residential burglary (Pen. Code,2 §§ 459, 460). Lamb admitted he had suffered 12 strike priors and two serious felony prior convictions.
In early August 2007, the court sentenced Lamb to an indeterminate prison term of 50 years to life plus a 10-year determinate term. The sentence consisted of two consecutive terms of 25 years to life (one for each of his current burglary convictions), plus two consecutive five-year terms for his two prior serious felony convictions.
Of particular importance here, the court during sentencing ordered Lamb to pay both a $10,000 restitution fine (§ 1202.4, subd. (b), hereafter § 1202.4(b)) and victim restitution (§ 1202.4, subd. (f), hereafter § 1202.4(f)) in the amount of $4,400 ($3,600 to one victim and $800 to the other victim). Neither Lamb nor his counsel objected to the restitution fine order or the victim restitution order.
Lamb appealed and this court affirmed the judgment in December 2008 in an unpublished opinion (People v. Lamb (Dec. 30, 2008, D051786) [nonpub. opn.], hereafter 1 The facts underlying Lamb's convictions in this case are not relevant to this appeal, which challenges the court's denial of his motion for modification of his sentence (discussed, post). Thus, we need not summarize the underlying facts.
2 All further statutory references are to the Penal Code.
2 Lamb I).3 Lamb did not challenge the restitution fine order or the victim restitution order in Lamb I.
About seven years later, on September 10, 2014, Lamb filed in propria persona a motion to modify his sentence, challenging the orders requiring him to pay a $10,000 restitution fine and $4,400 in victim restitution. He complained that "it is absolutely impossible" for him to pay the $14,400 out of his prison wages, Citing section 1202.4, Lamb asserted that the orders requiring him to pay the $14,400 should be vacated and the amount reduced to $200 because "the record does not support that the trial court made a finding on [his] ability to pay the restitution/fine or that the trial court was aware [it was required] to hold a restitution hearing."
That same day the court summarily denied Lamb's motion. Acting in propria persona, Lamb filed a timely notice of appeal challenging the order summarily denying his motion.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the proceedings below.
Counsel presents no argument for reversal of the order denying Lamb's motion for modification of his sentence, but counsel asks this court to review the record for error as mandated by People v. Wende, supra, 25 Cal.3d 436. Counsel raises no possible, but not arguable, issues. (See Anders v. California (1967) 386 U.S. 738.)
3 We take judicial notice of this court's opinion in Lamb I. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) 3 On February 17, 2015, we granted Lamb permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Lamb forfeited his claim of sentencing error by failing to object at his 2007 sentencing to the restitution fine order and the victim restitution order he now challenges in this appeal. (People v. McCullough (2013) 56 Cal.4th 589, 593 [a constitutional right, or a right of any other sort, may be forfeited in criminal cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it]; People v. Gamache (2010) 48 Cal.4th 347, 409 [defendant, by failing to object at his sentencing hearing, forfeited his claim that the trial court erroneously failed to consider his ability to pay when it imposed a $10,000 victim restitution fine under section 1202.4]; accord, People v. Nelson (2011) 51 Cal.4th 198, 227.) Even if he had made a timely and specific objection to those orders at the sentencing hearing, he forfeited his claim of sentencing error by failing to raise it in Lamb I.
Accordingly, we affirm the order denying Lamb's motion for modification of his sentence. Lamb has been adequately represented by counsel in this appeal.
4 DISPOSITION
The order is affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
Cites, in this corpus
- People v. McCullough S192513 · 2013-04-22
- People v. Nelson S085193 · 2011-01-20
- People v. Gamache S052808 · 2010-03-18
- People v. Wende Crim. 20851 · 1979-10-12