THE PEOPLE v. HON CHUNG LAU (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In October 2010, appellant filed a motion challenging the amount of restitution imposed by the trial court, arguing that the court erroneously assumed he could pay the fine from his wages while incarcerated.   Appellant asked the court to reduce the amount of restitution to $200.   The court denied the motion, stating that ability to pay is not a consideration in victim restitution.   The court also denied a request for counsel in order to pursue DNA testing under Penal Code section 1405.   Appellant filed a timely notice of appeal.

After review of the record, appellant's court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On March 14, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider.   On March 28, 2011, appellant filed a supplemental brief, raising three issues.   First, he asks us to review the entire transcript from the original trial court.   Second, he asks us to compel discovery of exculpatory evidence allegedly obtained by trial counsel.   Third, he asks for a new trial based on actual innocence.   The claims appellant raises in his supplemental brief should have been brought in his prior appeal.   The judgment from which appellant appeals concerns the denial of his motion to reduce the amount of restitution and his request for DNA testing.

“[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay.”  (People v. Senior (1995) 33 Cal.App.4th 531, 538.)   Appellant has failed to show any justification for the delay in raising his claims.

Appellant's actual innocence claim is properly brought in a habeas corpus petition.  “ ‘[A] criminal judgment may be collaterally attacked on habeas corpus on the basis of newly discovered evidence if such evidence casts “fundamental doubt on the accuracy and reliability of the proceedings.” ’ ”   (In re Lawley (2008) 42 Cal.4th 1231, 1239.)   Actual innocence habeas claims are subject to a higher standard of proof.  “ ‘ “For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence;  defendant thus must undertake the burden of overturning them.   Society's interest in the finality of criminal proceedings so demands, and due process is not thereby offended.” ’  [Citation.]”  (Id. at p. 1240.)   Even if we could address appellant's claims, he has failed to meet his burden.

“ ‘[A] victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.’  (Pen.Code, § 1202.4, subd. (a)(1)․)  Thus, ‘unless it finds compelling and extraordinary reasons for not doing so,’ the court in a criminal proceeding must require the defendant to make ‘full restitution’ to a victim ‘in an amount established by court order, based on the amount of loss claimed by the victim ․ or any other showing to the court.’   ( [Pen.Code,] § 1202.4, subd. (f).)”  (People v. Short (2008) 160 Cal.App.4th 899, 902.)   The statute provides that “[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of a restitution order.”  (Pen.Code, § 1202.4, subd. (g).)  A restitution order is reviewed for abuse of discretion.  (People v. Duong (2010) 180 Cal.App.4th 1533, 1537.)   We find no abuse of discretion here.

We review the trial court's ruling on a motion under Penal Code section 1405 for abuse of discretion and find no such abuse here.  (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1047.)

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant 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.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

WILLHITE, J. MANELLA, J.