Filed 10/22/20 P. v. Ross CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, No. A160167
v. (Solano County Super.
ALEX DEON ROSS, Ct. No. VC37766)
Defendant and Appellant.
Appellant Alex Deon Ross appeals from an order of the Solano County
Superior Court denying his postjudgment motion challenging the court’s 1998
imposition of certain fines, including a $10,000 restitution fine under Penal
Code section 1202.4. His court-appointed counsel has filed a brief raising no
legal issues and requesting this court to conduct an independent review the
record under People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v.
Serrano (2012) 211 Cal.App.4th 496 (Serrano). Counsel declares that he has
advised Ross that he may personally file a supplemental brief within 30 days
of the filing of the brief filed by counsel. Ross did not file a supplemental
brief.
BACKGROUND
In 1996, Ross was convicted after a jury trial of numerous criminal
offenses. He was sentenced, he appealed and he was resentenced in 1998 to a
total prison term of 52 years to life. The sentencing court in 1998, as it did in
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1996, ordered Ross to pay a $10,000 restitution fine under Penal Code
section 1202.4 and a parole revocation fine in the same amount under Penal
Code section 1202.45. The record does not indicate that Ross appealed from
this resentencing order.
In April 2020, Ross filed a petition in Solano County Superior Court
challenging the court’s 1998 imposition of the restitution and parole
revocation fines, purportedly without conducting a hearing and determining
his ability to pay them, which petition Ross based on People v. Dueñas (2019)
30 Cal.App.5th 1157 and certain constitutional protections. The superior
court denied his petition without explanation.
Ross filed a timely notice of appeal with a request for a certificate of
probable cause. The superior court granted his request for the certificate.
DISCUSSION
One of the cases relied on by Ross’s counsel, Serrano, supra,
211 Cal.App.4th 496, involved an appeal from the denial of a postconviction
motion challenging the sufficiency of the admonitions the defendant had
received regarding the immigration consequences of his plea. As Ross’s
counsel acknowledges, Serrano held that a review under Wende and Anders v.
California (1967) 386 U.S. 738 (collectively, Wende review) is limited to the
defendant’s first appeal as of right from a criminal conviction (Serrano, at
p. 503), and such a review is therefore unavailable in a case such as this.
Anticipating that we would decline to conduct a Wende review in light of
Serrano, Ross’s counsel urges us to employ a procedure prescribed in Serrano
that is based on that employed in Conservatorship of Ben C. (2007) 40 Cal.4th
529 (Ben C.).
According to Serrano, where counsel has not raised any legal issues in
an appeal from a postconviction proceeding, the applicable procedure is that
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authorized for conservatorship proceedings in Ben C. (Serrano, supra,
211 Cal.App.4th at p. 503.) In Ben C., our Supreme Court determined that a
Wende review was not required for appeals taken from conservatorship
proceedings under the Lanterman-Petris-Short Act. (Ben C., supra,
40 Cal.4th at p. 544.) Nonetheless, “[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. Such a brief will provide an
adequate basis for the court to dismiss the appeal on its own motion,” or
“[t]he court may, of course find it appropriate to retain the appeal.” (Id. at
p. 544 & fn. 7, fn. omitted.) Also, “[t]he conservatee is to be provided a copy of
the brief and informed of the right to file a supplemental brief.” (Id. at
p. 544, fn. 6.)
Here, we decline to conduct a Wende review of the superior court’s
postconviction order denying Ross’s petition or to exercise our discretion to
retain the appeal under Serrano. Although the superior court did not explain
its denial, it was manifestly correct to deny the petition because it long ago
lost jurisdiction over a sentencing order that was issued and became final
some 22 years before in 1998 when Ross did not take an appeal from it. (See,
e.g., People v. Smith (2015) 234 Cal.App.4th 1460, 1465 [“A judgment
becomes final when the availability of an appeal and the time for filing a
petition for certiorari have expired”].) No purpose would be served by our
further review of the record. Further, as a practical matter, Ross has
received the benefit of the procedure authorized Serrano and in Ben C. Ross’s
counsel has informed this court that he found no arguable issues to be
pursued on appeal, filed a brief setting out the applicable facts and the law,
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provided Ross with a copy of the brief and informed Ross of his right to file a
supplemental brief.
DISPOSITION
For the foregoing reasons, we decline to conduct a Wende review or
retain this appeal under Serrano. The appeal is dismissed.
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STEWART, J.
We concur.
KLINE, P.J.
MILLER, J.
People v. Ross (A160167)
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