P. v. Rangel

Filed 8/19/09 P. v. Rangel CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert C. Gustaveson and Wade Olson, Judges. Affirmed.

Raymond Rangel III, in pro. per.; Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * * * * * * * * *

Appellant Raymond Rangel III was convicted of two counts of second degree robbery, one count of possession of a firearm by a felon, and one count of first degree murder, with a robbery-murder special circumstance and enhancements for personal use of a firearm (Pen. Code, 12022.53, subd. (b)).^[1] His total sentence is 35 years four months to life in prison, without the possibility of parole. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues.  Appellant was notified that he could file his own brief and has done so.

This appeal follows the modification of appellants sentence that resulted from a previous decision by this court, People v. Lopez (May 30, 2003, B158058) [nonpub. opn.]. We explained in that opinion that appellant and Daniel Lopez, Jr., robbed three victims at gunpoint, and Lopez shot and killed one of them. We rejected various contentions, including an argument that the trial court erred in (1) imposing a $200 restitution fine under section 1202.4, subdivision (b); and (2) imposing $10,000 in restitution under section 1202.4, subdivision (f), to repay the murder victims family for funeral expenses.^[2] We specifically stated, Imposition of both fines was mandatory and proper. (People v. Lopez, supra, B158058 [at p. 19].) We remanded solely for deletion of a $200 parole revocation fine, as appellants sentence did not include the possibility of parole.

On remand, the minute order of sentencing and the abstract of judgment were modified to remove the parole revocation fine. The restitution fine and restitution that we approved in our opinion did not change.

Appellant responded by filing with the trial court a pro se document entitled: Notice for the reduction of fines/restitution for lack of ability to pay hearing pursuant to Penal Code 1202.4, 1202.4(a), 1260, 1202.45, Government Code 13967(a). (Sic.) In essence, he argued that he is incarcerated for life without the possibility of parole, has no ability to earn the amount of restitution and restitution fine that was imposed, and should have been granted a hearing on his ability to pay. Although the restitution fine and restitution were imposed pursuant to Penal Code section 1202.4, subdivisions (b) and (f), appellant relied heavily on a different restitution fine provision in Government Code former section 13967, subdivision (a) even though that provision no longer exists.

Contrary to the title on the first page of appellants motion, the Declaration of Service by Mail at the end of the motion calls it a Petition For Writ [of] Habeas Corpus. The accompanying proof of service indicates that appellant was serving a Petition For Writ [of] Habeas Co[r]pus and a Modification of Fine/Restitution. It therefore appears that the same pro se document had both names.

On November 17, 2008, the trial court denied the motion for reduction of fines/restitution and the petition for writ of habeas corpus.

The notice of appeal indicates that the appeal is from the Petition of Habeas Corpus/Motion for Reduction of Fines/Restitutions. (Sic.) The notice of appeal and appellants supplemental brief before this court essentially repeat the arguments about appellants inability to earn money while in prison and the failure to observe the Government Code repealed section 13967.

To the extent that appellants pleading was a petition for writ of habeas corpus, he cannot appeal from the denial of it. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, 80, pp. 611-612.)

Appellants pleading was also a request for a hearing on his ability to pay. Assuming arguendo that an appeal lies from the denial of that request, our previous opinion already found no error in the restitution fine and restitution that were imposed. An appellate court will not review matters that were determined in a prior appeal of the same case and that have become law of the case. (6 Witkin & Epstein, supra, Criminal Appeal,  145, p. 392.)

We have reviewed the entire record on appeal. From that review, we are satisfied that appellants attorney has fully complied with his responsibilities, and no arguable issues exist.  (Smithv. Robbins (2000) 528 U.S. 259, 276; People v. Kelly (2006) 40 Cal.4th 106, 123-124; Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

FLIER, Acting P. J.

We concur:

BIGELOW, J.

BENDIX, J.^*

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^[1] Subsequent code citations are to the Penal Code unless otherwise stated.

^[2] Section 1202.4, subdivision (b) requires a separate and additional restitution fine, unless the court finds and states compelling and extraordinary reasons for not doing so. For a felony, the restitution fine is a minimum of $200 and a maximum of $10,000. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the two hundred-dollar ($200) . . . minimum. ( 1202.4, subd. (c).)

Section 1202.4, subdivision (f) provides in pertinent part: [I]n every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.