Filed 10/19/20 P. v. Paul CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B303968
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA072928)
v.
TRACY VAUGHN PAUL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura L. Laesecke, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
In 2007, a jury convicted appellant Tracy Vaughn Paul
of murder (Pen. Code, § 187, subd. (a))1 and possession of a
firearm as a felon (§ 12021, subd. (a)(1)). The jury found
true allegations that appellant had personally used a
firearm causing great bodily injury (§ 12022.53, subds. (b),
(c), (d)), and that the offense had been committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
Appellant admitted the truth of allegations that he had two
prior convictions within the scope of the three strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior
convictions for a serious felony (§ 667, subd. (a)(1)), and four
prior prison terms (§ 667.5, subd. (b)). The trial court
sentenced appellant to imprisonment for a total term of 116
years and eight months to life (including a 10-year gang
enhancement), and imposed a $10,000 restitution fine. In an
unpublished opinion, we affirmed the judgment, as modified
to reflect that the 10-year gang enhancement was stricken,
and that the jury had found true the gang allegation for
purposes of the minimum parole eligibility period. (People v.
Paul (Jan. 6, 2009, No. B202211) 2009 Cal.App.Unpub.
LEXIS 38.)
On November 5, 2019, appellant filed a motion for
reduction of his restitution fine. He argued the trial court
erred by imposing a restitution fine in excess of $300
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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because he was entitled to an exemption under Code of Civil
Procedure section 704.090, which exempts $300 in a
prisoner’s trust account from the enforcement of a
restitution fine. (See Code Civ. Proc., § 704.090, subd. (b) [“if
the judgment [being enforced] is for a restitution fine . . . ,
the funds held in trust for, or to the credit of, a judgment
debtor [confined in a prison] are exempt in the amount of
three hundred dollars”].) The trial court denied the motion,
finding that appellant had the ability to pay the fine (he had
not argued otherwise), and that the amount of the fine was
appropriate. Appellant appealed.
Appellant’s appointed counsel filed a brief requesting
that we independently review the record for error pursuant
to People v. Wende (1979) 25 Cal.3d 436 (Wende). We
directed counsel to send the record and a copy of the brief to
appellant (as counsel had represented he would do,
regardless), and notified appellant of his right to respond
within 30 days. We have received no response.
DISCUSSION
We dismiss the appeal because appellant is not entitled
to Wende review. “In an indigent criminal defendant’s first
appeal as a matter of right, the Court of Appeal must
independently review the record if appointed counsel
represents he or she has found no arguable issues.”
(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535, citing
Anders v. California (1967) 386 U.S. 738; Wende, supra, 25
Cal.3d 436.) A defendant is not entitled to such review “in
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subsequent appeals.” (People v. Serrano (2012) 211
Cal.App.4th 496, 503; see also People v. Kisling (2015) 239
Cal.App.4th 288, 290.) As this is an appeal from a motion
for postjudgment relief, not a first appeal as a matter of
right, appellant is not entitled to Wende review. (See People
v. Cole (2020) 52 Cal.App.5th 1023, 1028, review granted Oct.
14, 2020, S264278.) Because neither appellant nor his
counsel has raised any claims of error, we dismiss the appeal
as abandoned. (See ibid.; People v. Serrano, supra, 211
Cal.App.4th at 503-504; People v. Kisling, supra, 239
Cal.App.4th at 292 & fn. 3.)
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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