Opinion
A130192
06-07-2011
THE PEOPLE, Plaintiff and Respondent, v. RUSSELL STEVEN BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. H25290)
Defendant Russell Steven Brown appeals from denial of his August 2010 motion to modify the trial courts May 2003 victim restitution order. Defendants counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) We have considered a supplemental brief submitted by defendant. We find no arguable issues and affirm.
BACKGROUND
In June 1999, defendant was convicted of first degree murder (Pen. Code, § 187)and assault with a firearm (§ 245, subd. (a)(2)). The trial court sentenced defendant to prison for 50 years to life, with an additional determinate term. The court also imposed a $400 restitution fine (§ 1202.4, subd. (b)) and imposed and suspended a $400 parole revocation fine (§ 1202.45). The court reserved jurisdiction to determine victim restitution (§ 1202.46).
All undesignated section references are to the Penal Code.
In May 2003, the Alameda County District Attorney filed a motion in the trial court seeking victim restitution in the amount of $1,391. Attached to the motion was a form signed by defendant waiving his right to a victim restitution hearing and agreeing to a modification of his sentence to include $1,391 in victim restitution. On May 16, 2003, the court ordered defendant to pay victim restitution in that amount.
Over seven years later, in August 2010, defendant filed a "Motion to Reduce Restitution Fine to Minimum Amount Provided by Law." The motion sought to reduce both the restitution fine and the victim restitution order. The trial court denied the motion. This appeal followed.
DISCUSSION
We have reviewed the entire record and have found no arguable appellate issues.
Defendants August 2010 motion sought to reduce the amount of restitution based on his contention that the trial courts May 2003 order violated his federal constitutional due process rights because the court failed to consider his ability to pay in determining the amount of the victim restitution order. Even assuming that argument was not foreclosed by defendants waiver of his right to a hearing and agreement to the amount of restitution, defendants remedy was to assert any such contention in a timely appeal from the May 2003 order (or, in the case of the restitution fines, from the courts June 1999 judgment). (People v. DiMora (1992) 10 Cal.App.4th 1545, 1549-1550.) Although the trial court reserved jurisdiction to make further restitution orders in its May 2003 order, that did not excuse the defendants failure to raise his objections to the June 1999 judgment and May 2003 order in timely appeals. Moreover, nothing in section 1202.46 authorized defendant to request modification of the restitution order.
Section 1202.46 provides: "Notwithstanding Section 1170, when the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined. Nothing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to Section 1202.4."
There are no legal issues that require further briefing.
DISPOSITION
The trial courts order is affirmed.
SIMONS, Acting P.J. We concur. NEEDHAM, J. BRUINIERS, J.