Filed 6/23/15 P. v. Costello CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A143610
v.
PERCEL COSTELLO, (Alameda County
Super. Ct. No. CH-47551)
Defendant and Appellant.
Appellant, Percel Costello, appeals from the order of the Alameda County
Superior Court denying his postjudgment motion to reduce the restitution fine imposed.
His court-appointed counsel has filed a brief raising no legal issues and requesting this
court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d
436 “and/or” People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano).
Assigned counsel declares that he has written appellant at his last known address
and advised him that a Wende brief would be filed in his case and that he may personally
file a supplemental brief within 30 days of that filing raising any issues he wishes to call
to the court’s attention. (Wende brief at p. 7.) Appellant did not file a supplemental
brief.
FACTS AND PROCEEDINGS BELOW
On February 22, 2010, pursuant to a plea bargain, appellant entered a no contest
plea to a single count of burglary (Pen. Code, § 459)1 and admitted one prior conviction
1
All subsequent statutory references are to the Penal Code.
1
within the meaning of the Three Strikes Law (§§ 667, subd. (e), 1170.12, subd. (c)).
Consistent with the plea bargain, appellant was on March 15, 2010, sentenced to state
prison for 12 years.2 The court also imposed a restitution fine in the amount of $2,400
(§ 1202.4, subd. (b)) and suspended imposition of a parole revocation restitution fine
(§ 1202.45) also in the amount of $2,400.
More than three years later, on June 10, 2014, appellant filed a pro. per. motion
seeking reconsideration of his ability to pay the $2,400 restitution fine.
In a declaration and memorandum of points and authorities, appellant claimed the
sentencing court erroneously failed to conduct a restitution hearing and he was now
“completely unable to satisfy the court’s restitution order.” In his declaration, appellant
explained that “[p]rior to having been re-classified due to my medical restrictions,[3] I was
working in the institution where I resided, and I was then able to pay-down my restitution
by $893.01. . . . [¶] Because of the changes in my physical condition, I am no longer
able to work while incarcerated; and upon my release, I will be on a limited fixed income
as a veteran, which is not nearly sufficient for me to sustain the necessities of life,
especially given my progressive debilitating condition which require[s] me to pay for
additional medical items not covered by the VA Bill. [¶] In calculating food, shelter,
clothing, and other bills; I am indigent and cannot foresee any means to sustain ordinary
things needed to survive.”
On August 4, 2014, the trial court denied the motion to reconsider on the ground
that it had “no jurisdiction to modify the restitution fine because criminal proceedings
have concluded and the judgment is final,” citing, inter alia, People v. Turrin (2009) 176
Cal.App.4th 1200, 1208, “[s]ince the trial court lacked jurisdiction to modify the
restitution fines, its order denying defendant’s motion requesting the same did not affect
2
As appellant’s counsel acknowledges and will be seen, the facts regarding the
offense to which appellant entered his plea are not relevant to the postconviction order
appellant complains of.
3
As stated in his memorandum of points and authorities, appellant, who was then
64 years of age, is a “ ‘diabetic patient with peripheral neuropathy on bilateral feet.’ ”
2
his substantial rights and is not an appealable postjudgment order.” In its written ruling,
the court rejected appellant’s claim that his sentence is excessive and therefore
unauthorized, noting that “ ‘[A] sentence is generally “unauthorized” where it could not
lawfully be imposed under the circumstances in the particular case.’ (People v. Scott
(1994) 9 Cal.4th 331, 354.) Here, the law allows for imposition of a restitution fine in the
amount of $10,000. Thus, the sentencing court’s imposition of a $2,400 restitution fine is
not an unauthorized [sentence].” For this reason, the court denied appellant’s request for
a hearing on his motion.
DISCUSSION
As counsel for appellant acknowledges, Serrano, supra, 211 Cal.App.4th 496,
which involved an appeal from the denial of a postconviction motion challenging the
sufficiency of the admonitions the defendant received regarding the immigration
consequences of his plea, held that Wende review is limited to the defendant’s first appeal
as of right from a criminal conviction (Serrano, at p. 503), and is therefore unavailable in
a case such as this.
Appellant’s assigned counsel urges us to consider two possible ways of providing
limited review of the trial court’s non-appealable postjudgment order. The first is to
exercise our “inherent discretion to treat the appeal as a petition for extraordinary writ
relief.” (In re M.R. (2013) 220 Cal.App.4th 49, 65.)
The second is to employ the procedure authorized by the Supreme Court in
Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.), as prescribed in Serrano.
According to Serrano, where counsel has not raised any legal issues in an appeal from a
postconviction proceeding, the applicable procedure is that authorized in conservatorship
proceedings by the California Supreme Court in Ben C. As stated in Ben C., “[i]f
appointed counsel in a conservatorship appeal finds no arguable issues, counsel need not
and should not file a motion to withdraw. Instead, counsel should (1) inform the court he
or she has found no arguable issues to be pursued on appeal; and (2) file a brief setting
out the applicable facts and the law.” (Id. at p. 544.) In addition, “[t]he conservatee is to
be provided a copy of the brief and informed of the right to file a supplemental brief.”
3
(Id. at p. 544, fn. 6.) Finally, while the appellate court may dismiss an appeal arising out
of a Lantermin-Petris-Short conservatorship proceeding that presents no arguable issues,
an appellate court has discretion to nevertheless retain the appeal and independently
review the record. (Ibid.)
Anticipating we may decline to conduct Wende review or treat the matter as an
extraordinary writ, assigned counsel urges us “to conduct the level of review prescribed
in Ben C., including affording appellant the opportunity to file a supplemental brief.”
We decline to conduct Wende review of the postconviction order or to treat this
matter an as an extraordinary writ because the trial court’s purely legal conclusion that it
lacked jurisdiction, which eliminated appellant’s right to an evidentiary hearing, is so
manifestly correct, supported by sufficient evidence and dispositive that no purpose
would be served by further review of the record by this court. Moreover, as a practical
matter, appellant has already received the benefit of the procedure authorized by the
Supreme Court in Ben C. Assigned counsel has informed the court he found no arguable
issues to be pursued on appeal, has filed a brief setting out the applicable facts and the
law, and has provided appellant a copy of the brief and informed him that he has the right
to file a supplemental brief.
For the foregoing reasons, we decline to accord Wende review. The appeal is
dismissed.
4
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
5