People v. Panyanouvong CA3 ( 2022 )

Filed 4/26/22 P. v. Panyanouvong CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C093704
v. (Super. Ct. No. 15F00271)
KHOT PANYANOUVONG,
Defendant and Appellant.
In 2016, a jury found defendant Khot Panyanouvong guilty of first degree murder
and the trial court found true allegations that defendant’s prior conviction qualified as a
serious felony and a strike. The trial court sentenced defendant to an indeterminate term
of 55 years to life and imposed various fines and fees. This court affirmed the judgment
in May of 2020.
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In January 2021, defendant filed a pro. per. petition asking the trial court to
modify his sentence by striking the fines, fees, and assessments. Defendant cited People
v. Dueñas (2019) 30 Cal.App.5th 1157, argued the items should be stricken because there
was no finding he had the ability to pay them, and said his counsel was ineffective for not
raising the issue on appeal. The trial court converted the restitution fine, the court
facilities assessment, and the court security fee into jail time.
Defendant appealed the trial court’s 2021 order. Appointed counsel for defendant
asked this court to review the record and determine whether there are any arguable issues
on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We will dismiss the
appeal.
DISCUSSION
The California Supreme Court has not decided whether the protections afforded by
Wende and the United States Supreme Court decision in Anders v. California (1967)
386 U.S. 738 [18 L.Ed.2d 493] apply to an appeal from an order denying a
postconviction request to strike fines, fees, and assessments. And although People v.
Dueñas, supra, 30 Cal.App.5th 1157 remains citable precedent, some courts have
criticized Dueñas’s legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320,
review granted Nov. 26, 2019, S258946) and the California Supreme Court has not yet
resolved the split in authority.
In some circumstances this court has nevertheless exercised its discretion to
adhere to Wende where defendant’s counsel undertook to comply with Wende
requirements. But we decline to do so here. Any error in the trial court’s 2021 order
inured to defendant’s benefit because defendant filed his petition over four years after he
was sentenced and more than six months after his appeal was final, the petition did not
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assert a clerical error, and the challenged fines, fees, and assessments were authorized at
the time they were imposed.
DISPOSITION
The appeal is dismissed.
/S/
MAURO, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
HULL, J.
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