Filed 9/30/20 P. v. Hernandez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B303538
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA341948)
v.
OSVALDO HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Terry A. Bork, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
In 2009 a jury convicted Osvaldo Hernandez of first degree
murder (Pen. Code,1 § 187, subd. (a)), attempted murder (§§ 187,
664), and being a felon in possession of a firearm (former § 12021,
subd. (a)(1)). The jury also found true that he personally used
and discharged a gun in the commission of the murder and
attempted murder (§ 12022.53, subds. (b), (c) & (d)) and that he
committed those crimes for the benefit of, at the direction or, or in
association with a criminal street gang (§ 186.22, subd. (b)). The
court sentenced him to prison for 50 years to life. The court also
imposed $180 in fees and assessments (former § 1465.8, subd. (a)(1);
Gov. Code, § 70373, subd. (a)(1)), a $200 restitution fine (former
§ 1202.4, subd. (b)) and $7,500 in victim restitution (§ 1202.4,
subd. (f)). Hernandez did not object to, or request a hearing with
respect to, the fees, assessments, fine, or restitution order.
Hernandez appealed and, in 2012, we held that the court
should have applied section 654 to stay the sentence on the count
of being a felon in possession of a firearm, and otherwise affirmed
the judgment. (People v. Hernandez (Aug. 2, 2012, B223969)
[nonpub. opn.].)
In 2019, Hernandez filed a petition for writ of habeas corpus
in the superior court challenging the order to pay “restitution”
on the ground that the sentencing court did not determine whether
he had the ability to pay the amounts imposed. He asserted that
his delay in filing the petition was excusable because the petition
is based on “new law” established in People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas).
The court “summarily denied” the petition on the grounds
that it was untimely and raised issues that could have been, but
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
2
were not, raised on appeal—the Dixon2 rule—and Hernandez
failed to allege facts establishing an exception to the Dixon rule.
Hernandez appealed from that order.
We appointed counsel for defendant, who filed a brief raising
no issues on appeal and requesting that we independently review
the record, pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende), to determine if the lower court committed any error.
Because Hernandez’s appeal is from an order denying
postconviction relief, the procedural protections established in
Wende, supra, 25 Cal.3d 436 do not apply. (See People v. Cole
(2020) 52 Cal.App.5th 1023, 1034 (Cole), petn. for review pending,
petn. filed Sept. 4, 2020, S264278; People v. Serrano (2012) 211
Cal.App.4th 496, 503 (Serrano).) In Cole, Division Two of this court
recently explained that in a criminal appeal from a postconviction
order to which Wende does not apply, counsel who find no arguable
issues are required to “file a brief with the Court of Appeal setting
forth (1) a brief statement of the pertinent procedural history of
the case, (2) a brief summary of the pertinent facts, (3) counsel’s
declaration that there are no reasonably arguable issues to present
on appeal, and (4) counsel’s affirmation that he or she remains
ready to brief any issues at the request of the Court of Appeal.”
(Cole, supra, 52 Cal.App.5th at p. 1038.) Counsel in this case
fulfilled these requirements.
The appeal is subject to dismissal for two reasons. First, in
noncapital cases, there is “no right to appeal from a superior court
denial of habeas corpus relief.” (Briggs v. Brown (2017) 3 Cal.5th
808, 836; accord, In re Clark (1993) 5 Cal.4th 750, 767, fn. 7;
Robinson v. Lewis (2020) 9 Cal.5th 883, 895.) Because the order is
2 In re Dixon (1953) 41 Cal.2d 756
3
nonappealable, the appeal from that order must be dismissed.
(People v. Fuimaono (2019) 32 Cal.App.5th 132, 133, 135.)3
Second, because Wende does not apply and Hernandez did not
file a supplemental brief, we deem the appeal to be abandoned.
(See Cole, supra, 52 Cal.App.5th at p. 1039, petn. for review
pending, petn. filed Sept. 4, 2020, S264278; People v. Serrano,
supra, 211 Cal.App.4th at pp. 503–504.)
3 Although a reviewing court may deem an appeal from an
order denying a habeas corpus petition as a new habeas petition in
the reviewing court (see People v. Gallardo (2000) 77 Cal.App.4th
971, 986), neither Hernandez nor his counsel has requested
that we do so. Even if they had and we did, we would deny the
petition. Aside from the issues concerning timeliness and the
Dixon rule that the trial court noted, we would reject his claim
on the merits. To the extent Hernandez is challenging the
order to pay victim restitution in the amount of $7,500, the rule
announced in Duenas—even if otherwise valid—does not apply to
victim restitution imposed under section 1202.4, subdivision (f).
(People v. Abrahamian (2020) 45 Cal.App.5th 314, 338; People v.
Evans (2019) 39 Cal.App.5th 771, 777.) To the extent Hernandez
is challenging the fees, assessments, and restitution fine, Duenas
does not apply for the reasons given in People v. Kingston (2019)
41 Cal.App.5th 272, 279–281, and People v. Caceres (2019) 39
Cal.App.5th 917, 928-929.
4
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
SINANIAN, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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