People v. Massengill CA2/3 ( 2020 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.)
1 All further statutory references are to the Penal Code.
2
We have otherwise examined the record and are satisfied
that no arguable issues exist and that his attorney has fully
complied with the responsibilities of counsel. (People v. Kelly
(2006) 40 Cal.4th 106, 126; People v. Wende (1979) 25 Cal.3d 436,
441.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
LAVIN, J.
3