Opinion
G044075
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. TRACY LYNN SALCIDO, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 07CF0398)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Appeal dismissed.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal is unusual, perhaps unique. Tracy Lynn Salcido appeals from an order denying her motion to modify the final judgment in this criminal case, after expressly waiving her right to appeal that judgment, and after challenging it in a different posttrial motion than the one for which she now appeals. Salcido's motion was based on a contention she was entitled to an increase in pre-sentence custody credits, due to an amendment to Penal Code section 4019 (section 4019) which took effect after her judgment became final. Salcido contends that not only should the amendment be applied retroactively to any judgments which were not yet final on its effective date, it would be a denial of equal protection not to also apply the amendment to judgments, such as hers, which had become final.
Unfortunately for Salcido, we need not even consider the merits of her contention. Not only did Salcido's motion to modify her judgment, followed by an appeal from the denial of that motion, amount to an end-run around her express waiver of the right to appeal, her plea agreement specified the exact number of pre-sentence custody credits she would be receiving. Having explicitly accepted that number, which was indisputably correct at the time of her plea agreement, Salcido waived any right to challenge it.
Moreover, as the Attorney General points out, the order Salcido appeals from was not even her first motion for increased pre-sentence custody credits following the amendment of section 4019. She initially moved, in propria persona, for such an increase in May of 2010, and the motion was denied. Her remedy was to appeal that order if she believed the court had ruled incorrectly, but she did not. Instead, when she later retained counsel, he simply filed a new motion for the same relief, after the time to appeal the original order had expired. That was improper, as successive motions cannot be used as a means of - in effect - extending the time for appeal. Consequently, Salcido's appeal is not cognizable, and must be dismissed.
We must note the Attorney General's assertion of this point was cursory, at best, consisting of three sentences without benefit of any citation to authority. If an appellant had made such a half-hearted effort to raise a legal point, we would deem it waived. Respondents do not have the same burden on appeal, but it should be noted that the failure to properly develop an argument significantly lessens its effectiveness.
FACTS
Salcido pleaded guilty to 206 counts of fraud, arising out of her pattern of embezzling money from the Orangewood Children's Foundation between March of 1999 and July of 2005. All told, Salcido stole over $500,000. As part of her plea agreement, Salcido expressly acknowledged the court would sentence her to 12 years in prison, and give her credit for 1,008 days of actual presentence custody, plus 504 days of good time/work time, for a total credit of 1,512 days of presentence custody credits. She expressly waived her right to appeal from "any legally authorized sentence the court imposes which is within the terms and limits" of her plea agreement.
Pursuant to her agreement, Salcido did not appeal any aspect of the judgment, and it became final. Only after her judgment was final did she start making various motions to modify her sentence. Acting in propria persona, she sought to modify aspects of her sentence on March 1, March 24, and May 7, 2010. The May 7, 2010 motion was for additional pre-sentence custody credits based upon the amendment of section 4019, which had become effective on January 25, 2010. The court denied the motion that same day, on the grounds that it was both procedurally and substantively defective, and specifically explained that the amendment would not apply to Salcido's case because her judgment had become final, at the latest, on January 5, 2010, prior to the effective date of the amendment.
Salcido did not appeal from the denial of her motion for additional pre-sentence custody credits. Instead, she retained counsel, and simply filed a new motion, seeking the same relief, on July 23, 2010. The second motion does not expressly mention the first, although it does include, as an exhibit, 15 pages of minute orders. Included within those minute orders is one reflecting Salcido's prior motion, and its denial.
The court denied the second motion on August 6, 2010. It is from that denial that Salcido appeals.
DISCUSSION
Salcido would like the opportunity to convince this court her number of pre-sentence custody credits should be increased, because it would be a denial of equal protection not to retroactively apply the amendment of section 4019 to judgments such as hers, which were already final when the amendment took effect. We cannot extend that opportunity to her. She waived her right to argue this issue on appeal in at least two ways.
First, Salcido explicitly waived her right to appeal her sentence as part of her plea bargain. Specifically, Salcido waived her right to appeal "any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement." She does not claim that her sentence was not authorized by law at the time it was imposed, and we note her plea agreement specifies the exact number of pre-sentence custody credits she would be given. Thus, by entering into that agreement, Salcido abandoned whatever right she might otherwise have had to challenge those custody credits on appeal.
Nor could Salcido, in effect, manufacture a new opportunity to appeal her sentence by simply asking the trial court to grant her a modification of her sentence, and then appealing from the order denying that request. As explained in People v. Thomas (1959) 52 Cal.2d 521, 527, "[o]rdinarily no appeal lies from an order denying a motion [on an issue] which could have been reviewed on appeal from the judgment. [Citations.] In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order . . . would virtually give defendant two appeals from the same ruling and . . . extend the time for appeal from the judgment." (See also People v. Gallardo (2000) 77 Cal.App.4th 971, 980-981.)
The proper calculation of pre-sentence custody credits can, of course, be reviewed on appeal from the judgment. (People v. Brown (2004) 33 Cal.4th 382, 405.) So when Salcido chose to plead guilty, and waive her right to appeal, she waived the only appellate remedy she had on this issue.
And of course, had Salcido not chosen to enter into a plea agreement, and waive her right to appeal, her judgment would not have become final before the effective date of the amendment to section 4019, and she would have been entitled to whatever retroactive effect it is ultimately deemed to have. But she did.
Moreover, the right to appeal in a criminal case is entirely statutory, and a postjudgment order in a criminal case is appealable only when it affects the "substantial rights" of a party. (Pen. Code, § 1237, subd. (b).) When the defendant has no right to the relief requested in the motion, the denial of her motion does not affect her substantial rights. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1208 ["Since the trial court lacked jurisdiction to modify the restitution fines, its order denying defendant's motion requesting the same did not affect his substantial rights and is not an appealable postjudgment order."]; People v. Druschel (1982) 132 Cal.App.3d 667 [defendant lacks standing to make motion for recall of sentence under Penal Code section 1170, thus denial of such a motion does not affect his substantial rights.].) In this case, when Salcido entered into her plea agreement, she agreed to the imposition of a specific sentence, and thus she had no right to challenge that sentence later, except upon a claim that it was not a "legally authorized sentence" or was actually inconsistent with the terms of the agreement. She made no such claim. Consequently, the denial of her motion to modify did not affect her substantial rights, and she had no right to appeal therefrom.
But even if we believed Salcido did have a right to appeal from an order denying her motion to increase her pre-sentence custody credits, we would conclude she waived that right for an entirely separate reason. Stated simply, she forfeited her right to appeal when she failed to pursue an appeal from the trial court's first order denying her motion to modify the custody credits, which had been made on the same ground. "A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' . . . The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all. (People v. Mendez (1999) 19 Cal.4th 1084, 1094, italics added.) Thus, "[i]n general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) Here, the court's initial order denying Salcido request for an increase in her custody credits became final 60 days after it was rendered. She cannot avoid the effect of that finality by simply filing the same motion a second time, and then appealing from the court's second denial.
The appeal is dismissed.
BEDSWORTH, ACTING P. J. WE CONCUR: O'LEARY, J. MOORE, J.