People v. Dean CA5

Filed 11/1/13 P. v. Dean 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065938 Plaintiff and Respondent, (Stanislaus Super. Ct. No. 1037386) v.

JERMAINE MICHAEL DEAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge. Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Franson, J.

INTRODUCTION Appellant/defendant Jermaine Michael Dean was convicted of first degree premeditated murder with a robbery special circumstance, and sentenced to life in prison without possibility of parole. The court ordered him to pay a $10,000 restitution fine pursuant to Penal Code1 section 1202.4, and victim restitution of 5,861.42 for the victim’s funeral expenses. Defendant did not object. On appeal, his appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) By letter on December 11, 2012, we invited defendant to submit additional briefing. Defendant has filed a briefing letter, and contends the restitution fine and restitution for the victim’s funeral expenses must be stricken because the sentencing court failed to consider his ability to pay. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2007, after a jury trial, defendant Dean and codefendants Kevin Trice and Tommy Nichols were convicted of count I, first degree premeditated murder of Jose Ruiz (§ 187), with a robbery special circumstance (§ 190.2, subd. (a)(17)), and a personal use allegation (§ 12022.53, subd. (d)). Defendant was also convicted of counts III and IV, robbery (§ 212.5); and counts V and VI, false imprisonment (§ 236); with additional firearm allegations (§ 12022.53, subd. (d), § 12022.5).

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2.