People v. Mariscal CA2/5

Filed 9/14/20 P. v. Mariscal CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B302525

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA149858) v.

JOSE MARISCAL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Dismissed.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

______________________

In 1997, a jury convicted Mariscal of three counts of attempted premeditated murder, and found true that he

personally used a firearm, and inflicted great bodily injury in the commission of each count. The trial court sentenced him to three consecutive terms of life with the possibility of parole plus 39 years and ordered him to pay a $10,000 restitution fine. In April 2018, Mariscal filed a motion in the trial court requesting reduction of the $10,000 fine. He argued the fine was excessive and unauthorized, and his trial counsel had rendered ineffective assistance by failing to raise an objection based on his inability to pay the fine. The court summarily denied the motion. In July 2019, Mariscal filed a petition for writ of habeas corpus in the trial court seeking a hearing on his ability to pay the restitution fine. He argued the imposition of the fine without a hearing on his ability to pay violated his right to due process under People v. Dueñas (2019) 30 Cal.App.5th 1157. The District Attorney argued the habeas petition should be denied because Mariscal had waived his right to an ability to pay hearing by failing to raise the issue at sentencing. The court denied the petition. Mariscal appealed the order and this court appointed counsel to represent him. After examining the record, counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that raised no issues. On June 18, 2020, we sent Mariscal a letter advising he could personally submit a supplemental brief within 30 days. We received no response. We have examined the record and are satisfied Mariscal’s attorney on appeal has complied with the responsibilities of counsel and no arguable issue exists. (Wende, supra, 25 Cal.3d at p. 441.) No appeal lies from an order denying a petition for writ of habeas corpus. (Briggs v. Brown (2017) 3 Cal.5th 808, 836 [“A petitioner currently has no right to appeal from a superior court