People v. Massengill CA2/3

Filed 12/24/20 P. v. Massengill CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B306933 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. A570013)

v.

DONALD CLAYTON MASSENGILL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Robin Miller Sloan, Judge. Dismissed. Donald C. Massengill, in pro. per.; and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ——————————

Donald Clayton Massengill appeals from an order denying his postjudgment motion to modify his sentence to reduce a restitution fine. His appellate counsel filed a brief asking this court to proceed under People v. Serrano (2012) 211 Cal.App.4th 496. In 1987, a jury convicted Massengill of first degree murder with a true finding on a personal use of a weapon (Pen. Code,1 §§ 187, subd. (a), 12022, subd. (b); count 1), grand theft personal property (former § 487(1)), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). That same year, the trial court sentenced Massengill to a determinate term of one year plus an indeterminate term of 25 years to life. The trial court also imposed a $5,000 restitution fine under Government Code former section 13967, subdivision (a). In 2020, Massengill moved under section 1202.4 to modify his sentence to reduce the $5,000 restitution fine because there had been no showing of his ability to pay it. The trial court denied the motion. Massengill appealed. His appellate counsel was unable to find any arguable issues and asked us to follow the procedures in People v. Serrano, supra, 211 Cal.App.4th 496. Massengill submitted a supplemental brief that repeated the arguments of his motion, i.e., the restitution fine should be reduced to $200. However, the postjudgment order denying his motion to strike or to modify the restitution fine, filed many years after that fine was imposed and Massengill began serving his sentence, is not appealable. (See, e.g., People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.)