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P. v. Wallace

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P. v. Wallace
By
03/19/17

P. v. Wallace















Filed 3/9/17 P. v. Wallace CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY LEROY WALLACE,

Defendant and Appellant.


F073059

(Super. Ct. No. CF02671718)


OPINION

THE COURT*
APPEAL from orders of the Superior Court of Fresno County. Ralph Nunez, Judge. (Retired Judge of the Fresno Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.)
Allen G. Weinberg, under appointment by the Court of Appeal,for Plaintiff and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Anthony Leroy Wallace appeals from the trial court’s denial of various motions he filed. This is not Wallace’s first appeal. Most prior filings with this court attempt to convince us the trial court improperly sentenced him to a third strike term of 25 years-to-life after his conviction in 2002 of felony vandalism. Like each of his previous efforts, this appeal lacks merit and will be denied.
FACTUAL AND PROCEDURAL SUMMARY
On May 21, 2015, Wallace filed a motion to have a restitution fine reduced because of his inability to pay the fine. On November 18, 2015, Wallace filed a motion to set aside a void judgment, accompanied by a request for judicial notice. In order to understand these motions, we must review Wallace’s history of convictions.
Much of the following information is gleaned from documents supplied by Wallace, both in the request for judicial notice filed in the trial court, and in documents filed in this court. While the authenticity of these documents was never established, we will assume for the purposes of this appeal that the documents are authentic. We have not verified the information contained in these documents, and are not suggesting the following information is of evidentiary value.
1987 Plea
It appears that in 1987 Wallace was charged by information with (1) inflicting corporal injury on his spouse (Pen. Code, § 273.5)[1], (2) attempted murder of the same spouse in a different incident (§§ 664 and 187), (3) attempting to dissuade a witness from testifying (§ 136.1, subd. (c)(1)), (4) burglary (§ 459), (5) failure to appear (§ 1320.5), (6) exhibiting a firearm (§ 417, subd. (a)(2)), and (7) carrying a loaded firearm (§ 12031, subd. (a)). The information alleged as enhancements to the attempted murder charge that Wallace “personally used a deadly and dangerous weapon, to wit, a KNIFE” within the meaning of section 12022, subdivision (b), Wallace personally inflicted great bodily injury within the meaning of section 12022.7, and Wallace committed the crime while on bail for a different offense within the meaning of section 12022.1.
The information provided suggests that the first trial of the attempted murder charge ended in a hung jury. Prior to the retrial of the charge, Wallace entered into a plea agreement. As a result of the agreement, the charge was amended to a violation of section “245(a)(1) assault with a deadly weapon, to wit, a knife.” The personal use of a knife allegation was to be dismissed “because that would come within the provisions of the charge itself.” The great bodily injury enhancement would be struck, but Wallace agreed to admit he committed the crime while on bail. Wallace thereafter entered a no contest plea to the charge pursuant to People v. West (1970) 3 Cal.3d 595, 612-613, and admitted the on bail enhancement.
1995 Plea
In 1995, Wallace entered into a plea agreement which required him to plead guilty to assault with a deadly weapon. During the change of plea hearing, the prosecutor clearly indicated on the record that Wallace was admitting he personally used a pipe during the commission of the crime. Defense counsel confirmed that it was understood that the conviction would constitute a strike under the three strikes law. Wallace pled guilty to the offense with the understanding he would not be sent to prison.
2002 Conviction
In 2002, Wallace was convicted after a jury trial of felony vandalism and two misdemeanors. Our opinion affirming the conviction of the felony charge is partially published at People v. Wallace (2004) 123 Cal.App.4th 144. In a bifurcated proceeding, the trial court found both of the above offenses constituted strikes within the meaning of section 667, subdivisions (b)-(i), and Wallace had served two prior prison terms within the meaning of section 667.5, subdivision (b). Wallace was sentenced to a determinate term of two years, and an indeterminate term of 25 years to life. (Id. at pp. 146-147.)
2012 Petition for Resentencing
In 2012, Wallace filed a petition for resentencing pursuant to Proposition 36, the Three Strikes Reform Act. The trial court denied the petition. It apparently concluded Wallace was eligible for resentencing, but denied the petition because he posed an unreasonable risk of danger to public safety. We recently filed a non-published opinion affirming the trial court’s order. (People v. Wallace (Dec. 7, 2016, F068951) [nonpub. opn.].)
The Current Motions
In 2015, Wallace filed two separate motions. The first sought to have the section 1202.4 restitution fine of $10,000 imposed as a result of the 2002 conviction vacated and to require the trial court to conduct a hearing to determine if Wallace has the ability to pay the fine. The trial court denied the petition as the matter was stayed because of the pending appeal from the order denying his petition for resentencing.
The second motion sought to have the third strike sentence imposed as a result of the 2002 conviction vacated as void. Wallace reasons the 1987 conviction is not a serious felony, and thus not a strike, and therefore the trial court erroneously imposed a third strike sentence. The trial court denied this motion because (1) it had no jurisdiction because no action was pending before it (People v. Picklesimer (2010) 48 Cal.4th 330, 337 (Picklesimer)), (2) the judgment was not void since the trial court had subject matter jurisdiction of the 2002 criminal action (People v. Malveaux (1996) 50 Cal.App.4th 1425, 1434 (Malveaux)), and (3) the trial court did not have jurisdiction because the action was stayed by the pending appeal of the denial of his petition for resentencing (Id. at p. 1434).
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asserting that after reviewing the record he could not identify any arguable issues in this appeal. By letter dated April 15, 2016, we invited Wallace to advise this court of any issues he wished us to address. Wallace filed a response with a laundry list of complaints related to his case and his sentence.
We begin by noting appellate counsel was correct in concluding there are no arguable issues in this case. The first motion seeks relief from a lawfully imposed restitution fine. Section 1202.4, subdivision (b), requires the trial court to impose a restitution fine in every case unless it “finds compelling and extraordinary reasons for not doing so and states those reasons on the record.” A defendant’s inability to pay is not a compelling and extraordinary reason to not impose a restitution fine. (§ 1202.4, subd. (c).)
The trial court has discretion to set the amount of the fine, but it should be “commensurate with the seriousness of the offense,” and in 2002, it was required to be between $200 and $10,000. (§ 1202.4, subd. (b)(1).) The trial court is invited by section 1202.4, subdivision (b)(2) to calculate the fine by multiplying the number of years imprisonment to which the defendant is sentenced by $200 multiplied by the number of felony counts of which the defendant is convicted, but is not required to do so. In setting the amount of the fine in excess of the minimum fine, the trial court is required to consider any relevant factors including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense, the circumstances of the commission of the offense, any economic gain derived by the defendant as a result of the crime, and the number of victims. (§ 1202.4, subd. (d).) The defendant bears the burden of proving his inability to pay. (Ibid.)
The trial court’s denial of the motion was correct for a variety of reasons. First, since the judgment has been final for years, the trial court may not entertain a postjudgment motion that is unrelated to any proceeding before it. (Picklesimer, supra, 48 Cal.4th at p. 337.)
Second, Wallace has forfeited the right to contend the fine was improper because he failed to raise it on appeal from the conviction. (Johnston v. Board of Supervisors of Marin County (1947) 31 Cal.2d 66, 70, disapproved on other grounds in Bailey v. Los Angeles County (1956) 46 Cal.2d 132, 139 [issues not raised on appeal waived]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, p. 769.)
Third, even were we to consider the issue on the merits, Wallace would not be entitled to any relief. A trial court abuses its discretion when it acts in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice. (People v. Peoples (2016) 62 Cal.4th 718, 745.) Considering Wallace’s long and violent criminal history, and his lengthy sentence, the trial court did not abuse its discretion when it imposed the restitution fine.
Similarly, Wallace’s second argument, that his sentence is void, must be rejected. The first two reasons identified above are equally applicable to this argument. Moreover, even were we to proceed to the merits, Wallace would not be entitled to any relief. As the trial court explained, the judgment is not void because it had subject matter jurisdiction over the criminal action. (Malveaux, supra, 50 Cal.App.4th at p. 1434.)
Moreover, there is no merit to Wallace’s argument. Wallace argues the 1987 plea is not a strike, so the trial court erred when it sentenced him to a third strike sentence. Wallace is wrong. As explained in the factual summary, at the change of plea hearing the information was amended to allege Wallace committed a violation of section 245, subdivision (a)(1), “assault with a deadly weapon, to wit, a KNIFE.” This is the crime to which Wallace entered his no contest plea. A plea of no contest “is a ‘conclusive admission of guilt’ [citation] and constitutes a conviction ‘ “within the ordinary as well as the technical meaning of the word, ...” ’” (People v. Jones (1995) 33 Cal.App.4th 1087, 1093-1094.) “ ‘A plea of guilty admits every element of the offense charged …, all allegations and factors comprising the charge contained in the pleading ….’ [Citation.] The legal effect of a no contest plea is the same.” (People v. Palacios (1997) 56 Cal.App.4th 252, 257-258.)
In 2002, when Wallace was sentenced to the third strike sentence because he had two prior serious felony convictions (§ 667, subds. (d)(1) and (e)(2)(A) [two prior serious felony convictions require a life sentence]), a serious felony included “any felony in which the defendant personally used a dangerous or deadly weapon.” (§ 1192.7, subd. (c)(23).) Since by his plea Wallace admitted he used a knife when he committed the 1987 assault with a deadly weapon, the 1987 plea is a serious felony and the trial court properly imposed a third strike sentence.
Having established that any claim attempted to be put forth by Wallace is substantively without merit and procedurally barred, we turn to Wallace’s response to our invitation to inform this court of any issues he wished us to address. We have reviewed this 84-page document which contains numerous scurrilous accusations against this court. None of the arguments put forth has any possible merit.
First, Wallace claims defense counsel was ineffective at his 2002 trial. Wallace presented four different arguments on why defense counsel was ineffective in his direct appeal. We rejected all four of the arguments. Three we rejected on the merits, and the record was insufficient to support the fourth argument. We will not revisit the issue again. To the extent Wallace claims counsel was ineffective during his 2012 petition for resentencing because he or she failed to convince the trial court his 1987 conviction was not a strike, we have already explained why Wallace is wrong on the issue.
Wallace also argues the trial court coerced him into accepting the 1987 plea agreement. He asserts the prosecutor promised he would strike the use of a deadly weapon enhancement, and the great bodily injury enhancement. The record provided by Wallace confirms this actually occurred. Wallace interprets this agreement to mean he did not use a deadly weapon in the attack. He also argues that at the time of the plea, if a deadly weapon was not used then the crime was not a serious felony. As explained above, the documents provided by Wallace establish he pled to assault with a deadly weapon, to wit, a KNIFE. Therefore, Wallace admitted to using a knife when committing the offense and cannot now complain.
Wallace appears to raise an ex post facto challenge to the three strikes law. The application of a sentencing enhancement due to a prior conviction does not violate the Ex Post Facto Clause as long as the statute was in effect before the triggering offense was committed. (People v. Helms (1997) 15 Cal.4th 608, 614-616; United States v. Ahumada-Avalos (9th Cir. 1989) 875 F.2d 681, 683-684.)
Wallace’s last argument is the trial court in 2002 used hearsay to relitigate the 1987 prior conviction. As we have explained, there is no merit to this argument, and it is procedurally barred.
DISPOSITION
The orders appealed from are affirmed.


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* Before Gomes, Acting P.J., Poochigian, J. and Franson, J.
[1] Subsequent statutory references are to the Penal Code.




Description Anthony Leroy Wallace appeals from the trial court’s denial of various motions he filed. This is not Wallace’s first appeal. Most prior filings with this court attempt to convince us the trial court improperly sentenced him to a third strike term of 25 years-to-life after his conviction in 2002 of felony vandalism. Like each of his previous efforts, this appeal lacks merit and will be denied.
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