Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FSB10788. Ronald M. Christianson, Judge.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Gaut, J.
In 1997, defendant Adrian Martinez pled guilty to eight counts of robbery (Pen. Code, § 211), admitting he personally used a firearm as to each count. (Pen. Code, § 12022.5, subd. (a).) Nine years after he pled guilty, defendant made a motion to modify the restitution fine imposed as part of the judgment, which was denied, and two years after that, defendant renewed that motion. The second motion was denied, and defendant appeals that judgment. We affirm.
BACKGROUND
On February 11, 1997, defendant pled guilty to eight counts of robbery (Pen. Code, § 211), and admitted eight enhancements alleging that he personally used a firearm in the commission of the robberies. (Pen. Code, § 12022.5, subd. (a).) The plea agreement included a sentence bargain providing for imposition of the upper term of five years for count six, plus a consecutive term of four years for the gun use allegation (Pen. Code, § 12022.5, subd. (a)), consecutive terms of one year each (1/3 the midterm) for counts 1, 2, 3, 7, and 8, along with concurrent terms for counts 4 and 5, and concurrent enhancement terms for counts 1, 2, 3, 4, 5, and 7. The plea agreement included an admonishment that a mandatory restitution fine would be imposed, pursuant to Penal Code section 1202.4, subdivision (b), along with a waiver of defendant’s right to appeal “from the conviction and judgment in my case.” Defendant’s plea was accepted and he was sentenced in accordance with the plea agreement, after waiving his right to a probation referral. No appeal was taken by defendant.
In August, 2003, the Department of Corrections sent a letter to the court informing it that the order for concurrent terms for the gun use enhancements was unauthorized, recommending that the court amend the minutes of the judgment and abstract to reflect that the enhancements were either stayed or stricken. Pursuant to this request, the court amended the judgment accordingly and issued an amended abstract of judgment. In September, 2003, the court amended the minutes of the judgment and the abstract again, after realizing that it had omitted to impose a sentence on counts 4 and 5. On September 25, 2003, another amended abstract was issued, imposing concurrent five-year terms for counts 4 and 5, in accordance with the plea agreement. No appeal was taken by defendant.
On December 8, 2006, the court received a motion submitted by defendant requesting modification of the sentence to delete the restitution fine. The court denied this motion on December 11, 2006. No appeal was taken by defendant. On October 29, 2008, the court received another motion for modification of the restitution fine. The court denied this motion as well, explaining that defendant was admonished about the mandatory restitution fine and advised it could be in an amount up to $10,000, but that the court imposed only a $5,600 restitution fine. Defendant appealed this order on December 1, 2008.
DISCUSSION
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, and he has filed a supplemental brief, in which he argues that the court erred in imposing a restitution fine in the amount $5,600, pursuant to Penal Code section 1202.4, subdivision (b). Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
First, defendant has forfeited the issue by waiving his right to appeal the judgment in his guilty plea. The restitution fine is a term of the judgment and must be challenged by way of a timely appeal. Raising the issue in a post judgment motion to modify the sentence does not avoid the consequences of the waiver. Even if defendant had not expressly waived the right to appeal, defendant forfeited the issue by failing to timely appeal from the judgment after it was imposed.
Additionally, an order made after judgment is not appealable where the motion to modify the judgment merely asks the court to repeat or overrule a former ruling on the same facts. (People v. Vaitonis (1962) 200 Cal.App.2d 156, 159.) Where a judgment is not void on its face and has been regularly entered, the court has no authority to modify or set it aside except in the mode provided by law, such as a motion for a new trial or appeal. (People v. Cantrell (1961) 197 Cal.App.2d 40, 43.) A ruling denying a motion to vacate (or to modify) a judgment would qualify semantically as an order after judgment affecting substantial rights, but such an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself. (People v. Thomas (1959) 52 Cal.2d 521, 527; People v. Gallardo (2000) 77 Cal.App.4th 971, 980-981.)
Defendant was advised of the mandatory restitution fine prior to entering his guilty plea in 1997, waived his rights to appeal, and did not timely attempt to appeal that judgment. The judgment is now final, and defendant may not seek to avoid the consequences of his failure to timely appeal, or to avoid the consequences of his waiver of appeal rights, by filing a motion to modify that term of the judgment more than a decade later, in an attempt to resurrect the issue.
More significantly, contrary to defendant’s repeated assertions regarding the exercise of the court’s discretion, imposition of a restitution fine is not discretionary; it is mandatory. (Pen. Code, § 1202.4, subd. (b).) The court is required to impose no less than $200 and no more than $10,000 pursuant to Penal Code section 1202.4, subdivision (b), so the imposition of $5,600, is not legally improper.
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., Miller, J.