Opinion
F053233
4-21-2008
THE PEOPLE, Plaintiff and Respondent, v. JOHN LYNCH, Defendant and Appellant.
John Lynch, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
STATEMENT OF FACTS
In July 2002, appellant John Lynch was convicted after a court trial of five counts of lewd and lascivious conduct with a child under the age of 14. His victims were his son and daughter. The court found true the special allegations that the sexual conduct was substantial and that there was more than one victim. Appellant was sentenced to a term of 15 years to life. A $10,000 restitution fine was also imposed.
In appellants appeal in F041059, his conviction was affirmed on August 14, 2003. Appellant did not challenge the restitution fine.
On April 30, 2007, appellant filed a "Motion for Modification of Sentence ... pursuant to Penal Code section 1202.4, [subdivision] (a)." That motion challenged the $10,000 restitution fine.
In a letter dated May 23, 2007, the Tulare County Superior Court Clerk stated that "The court has received and reviewed your motion for modification of sentence. Per Judge Kalashian, your motion has been denied."
On June 7, 2007, appellant filed a notice of appeal "from the final judgment at the Superior Court entered in this action on the 23rd of May, 2007."
This court asked appellant to brief the issues of whether this appeal is taken from an appealable order, and, if not, should this appeal be dismissed.
DISCUSSION
After being provided with the opportunity to explain why the order denying appellants motion to modify may be appealable, appellant has failed to make a persuasive showing. Appellant has failed to provide any authority allowing an appeal from an order denying a motion to modify a judgment which became final several years earlier.
The rule is that an order after judgment seeking to correct the record is not separately appealable from the conviction. (Cf. People v. Chessman (1950) 35 Cal.2d 455, 468; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 69.)
Orders denying motions to modify or vacate a judgment are also not appealable if the issues could have been raised on an appeal from the original judgment. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, §§ 53, 54, and 59 and cases cited therein.) The issues raised in appellants motion to strike the restitution fine could have been asserted in the superior court at his original sentencing and on appeal.
"An order denying a motion to vacate a judgment is an order after judgment, and might be considered appealable under P.C. § 1237(b). But when an appealable judgment of conviction is entered, the defendant has an adequate remedy by an appeal from it. If it were permissible for the defendant to move to vacate the judgment and then appeal from an order denying the motion, the effect would be to give either of two entirely unwarranted privileges: (a) the defendant could appeal from the judgment and also from the order denying the motion to vacate, thus obtaining two appeals from virtually the same ruling. (b) The defendant could neglect to appeal from the judgment, and at any later time make the motion to vacate and appeal from the order of denial, thus indefinitely extending the time for appeal.
"For these reasons the order is ordinarily nonappealable, regardless of whether there was an appeal from the judgment, or whether the errors asserted are the same as those that were raised on an appeal from the judgment, or were such as could have been raised on such an appeal but were not ..." (6 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Writs, § 53.)
This court concludes that the order denying appellants motion to strike the restitutionary fine is not appealable. Any other result would allow a defendant to file successive motions to modify or vacate a conviction and, upon their denials, perfect multiple appeals in essence challenging a judgment long since final. (Cf. 6 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Writs, § 99.)
This appeal is not taken timely from the judgment rendered in 2002.
DISPOSITION
The appeal in the above entitled action is dismissed. --------------- Notes: Before Levy, Acting P.J., Cornell, J., Dawson, J.