Opinion
F076070
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE VANG, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F06905971)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Kimberly A. Gaab, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Peña, J.
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INTRODUCTION
Appellant Johnny Lee Vang filed ex parte motions for modification of the victim restitution order and for post-trial discovery. On July 7, 2017, the superior court issued its order denying the motions. Vang filed a timely notice of appeal from the order and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Vang was convicted of two counts of murder and sentenced to life in prison without parole. In our unpublished decision in People v. Vang (Oct. 20, 2009, F054903 [nonpub. opn.]), we affirmed the convictions and judgment.
At the original sentencing hearing, the trial court imposed a Penal Code section 1202.45 fine of $2,500; a section 1202.4 fine in the amount of $2,500; and ordered "$7,500 to the restitution fund joint and severely [sic] liable."
References to code sections are to the Penal Code unless otherwise specified. --------
In 2010, Vang filed an ex parte application for an order to modify his sentence. Vang challenged the imposition of the sections 1202.4 and 1202.45 fines, and the restitution order of $7,500. The superior court struck the section 1202.45 fine as constituting an unauthorized sentence and denied the application as to the section 1202.4 fine and the restitution order.
On January 30, 2017, Vang filed a motion to vacate the section 1202.4 fine and restitution order imposed at sentencing. On February 8, 2017, the superior court denied the motion, finding that the time to appeal from the judgment had expired and the judgment was final.
Thereafter, on February 14, 2017, Vang filed a motion for additional discovery pursuant to section 1054.9. Specifically, Vang was seeking copies of the transcripts of his trial, which he alleged had been lost or destroyed when he was transferred from one penal institution to another.
On March 6, 2017, Vang filed a motion for reconsideration of his request to vacate the section 1202.4 fine and restitution order.
On March 13, 2017, Vang filed an appeal from the February 8, 2017 order denying his motion to vacate the section 1202.4 fine and restitution order. The appeal was designated as case No. F075327 and on June 1, 2017, this court dismissed the appeal.
On July 7, 2017, the superior court issued an order denying Vang's motion for additional discovery and the motion for reconsideration of the restitution fine and order.
Vang filed a notice of appeal on July 28, 2017, appealing from the July 7, 2017 order.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on December 26, 2017. That same day, this court issued its letter to Vang inviting him to submit a letter brief raising any issues he wished this court to consider. On January 25, 2018, Vang submitted a letter brief.
In his letter brief, it appears that Vang challenges the section 1202.45 fine, the restitution fine, and restitution order. The section 1202.45 fine previously was stricken by the superior court.
As for the restitution ordered, Vang contends the "purpose of victim restitution was to rehabilitate the defendant" and since he is serving a life without parole sentence, no restitution should be imposed. To the extent Vang is challenging the $2,500 section 1202.4 restitution fine or the $7,500 victim restitution, he previously appealed from the judgment where these amounts were imposed and that judgment was affirmed in case No. F054903.
Furthermore, section 1202.4, subdivision (b) provides that a trial court "shall impose" a restitution fine. The purpose of a section 1202.4, subdivision (b) restitution fine is punishment. (People v. Holman (2013) 214 Cal.App.4th 1438, 1451.)
Subdivision (f) of section 1202.4 provides that the trial court "shall order" full victim restitution. The purpose of victim restitution is to reimburse the victim for economic losses caused by the defendant's criminal conduct. (People v. Holman, supra, 214 Cal.App.4th at p. 1451.) Rehabilitation of a defendant and deterrence of future criminality are secondary goals of victim restitution. (Id. at p. 1452.) To the extent Vang is asserting the victim restitution should be stricken or reduced because he has no ability to pay as a prisoner serving a sentence of life without parole, section 1202.4, subdivision (g) states, "A defendant's inability to pay shall not be a consideration in determining the amount of a restitution order."
Vang has presented no legal basis for modification of the section 1202.4, subdivision (f) restitution order or section 1202.4, subdivision (b) restitution fine.
Although Vang did not address it in his letter brief, his motion for discovery materials pursuant to section 1054.9 was properly denied because transcripts of his trial are not discovery materials under the statute. (§ 1054.9, subd. (b).)
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The July 7, 2017 order is affirmed.