Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Tulare County No. VCF120336C-03, Gerald F. Sevier, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.
INTRODUCTION
Appellant Robert Gonzalez was convicted of multiple felonies and sentenced to 17 years eight months in prison, and the court imposed various restitution fines and fees. This court affirmed his convictions. Thereafter, he filed a motion with the superior court and requested a hearing on the validity of the restitution fines and fees imposed at the previous sentencing hearing. The court denied the motion having lost jurisdiction.
Appellant's appointed appellate counsel has filed an appeal from that ruling, and filed an opening brief which adequately summarizes the facts and cites to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We will dismiss the instant appeal as being taken from a nonappealable order.
FACTUAL AND PROCEDURAL BACKGROUND
Case No. 120336
Appellant sold narcotics to undercover officers from the Visalia Police Department in a series of controlled purchases. After a jury trial, he was convicted of count I, sale of cocaine (Health & Saf. Code, § 11352, subd. (a)), and counts II through VIII, sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The court found he suffered one prior strike conviction (Pen. Code, § 1170.12, subd. (c)(1)) and served one prior prison term (§ 667.5, subd. (b)).
All further statutory citations are to the Penal Code unless otherwise indicated.
Case No. 131151
Appellant worked as a handyman for his neighbors, the McCoys, but the McCoys began to mistrust him and terminated their business relationship. One evening, appellant was seen quickly walking away from McCoys’ house, clutching something to his body. The McCoys discovered their living room window was open, the screen was removed, and their Chihuahua puppy and two canaries were missing from the house.
The police found appellant in his Ford Bronco, parked across the street from the McCoys’ house. The Chihuahua puppy and a dead canary were in the vehicle; the other bird was not found. Appellant appeared intoxicated and his blood sample revealed toxic amounts of morphine, a metabolite of heroin.
After a jury trial, appellant was convicted of count I, first degree burglary (§ 459), count II, receiving stolen property, a dog and a bird (§ 496, subd. (a)), and count III, misdemeanor being under the influence of heroin (Health & Saf. Code, § 11550, subd. (a)). Appellant admitted the special allegations, that he suffered one prior serious felony conviction (§ 667, subd. (a)(1)), one prior strike offense (§ 1170.12, subd. (c)(1)), served one prior prison term (§ 667.5, subd. (b)), and committed the offense while released on bail (§ 12022.1).
Sentencing Hearing and Appeal
On January 7, 2005, the court conducted the sentencing hearing for both cases, denied appellant’s motion to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and imposed an aggregate term of 17 years eight months. The court followed the recommendation in the probation report and imposed a $20 court security fee (§ 1465.8, subd. (a)(1)), a $10,000 restitution fine (§ 1202.4, subd. (b)), and another $10,000 restitution fine, which was suspended pending successful completion of probation (§ 1202.45). The court also imposed a fine of $170 consisting of a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5); a $50 state penalty assessment (§ 1464, subd. (a)), a $35 county penalty assessment (Gov. Code, § 76000, subds. (a), (e)); a $25 court facility construction fund penalty assessment (Gov. Code, § 70372), and a $10 state criminal fine surcharge (§ 1465.7, subd. (a)). Appellant did not raise any objections regarding the court’s imposition of the restitution fines and fees.
Appellant filed an appeal from his convictions and did not raise any issues regarding the court’s imposition of the restitution fines and fees. On January 19, 2006, this court ordered the abstract of judgment corrected and affirmed the judgment in all other respects.
Subsequent proceedings
The instant matter is based upon a “motion” appellant filed in propria persona in the Superior Court of Tulare County on April 21, 2008. Appellant requested a “court hearing” to “dispute the fee’s [sic] imposed by the Court on January 7, 2005. The record shows a hearing was never heard to dispute the amounts, which petitioner believes he is entitled to, therefore petitioner respectfully request[s] a hearing in the above said matter.”
On April 24, 2008, the superior court denied appellant’s “motion” because it did not have jurisdiction to hear the matter. On July 7, 2008, appellant filed a notice of appeal from that ruling because the “matter of restitution is an appealable issue.”
DISCUSSION
As noted ante, appellant’s appointed counsel has filed an opening brief pursuant to People v. Wende, supra, 25 Cal.3d 436. In the brief, however, appellant “personally requests that the Court address the following issues: the propriety of fines and fees [imposed] without a hearing on January 7, 2005.” By letter of December 23, 2008, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.
As to appellant’s challenge to the “propriety” of the fines and fees imposed in this case, we note that orders denying motions to modify or vacate a judgment are not appealable if the issues could have been raised on an appeal from the original judgment. (People v. Gallardo (2000) 77 Cal.App.4th 971, 980; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, §§ 53, 59, pp. 299-300, 304-305.)
Even if cognizable, however, appellant’s challenge to the restitution fines and fees is still meritless. The defendant has a right to a hearing before a judge to dispute the determination of the amount of restitution. (§ 1202.4, subd. (f)(1).) However, a defendant’s due process rights are protected when the probation report gives notice of the amount of restitution sought, and the defendant has an opportunity at the sentencing hearing to challenge the amounts recommended in the probation report and imposed by the court. (People v. Prosser (2007) 157 Cal.App.4th 682, 692; People v. Brach (2002) 95 Cal.App.4th 571, 579; People v. Cain (2000) 82 Cal.App.4th 81, 86.) Appellant was notified in the probation report of the specific amounts sought for the restitution fines and various fees, the court imposed the precise amounts recommended by the probation report, and he was given a meaningful opportunity at the January 7, 2005, sentencing hearing to object before the sentence was imposed. Appellant’s failure to object at the sentencing hearing necessarily waived any objections cognizable on appeal. (People v. Gonzalez (2003) 31 Cal.4th 745, 752, 754-755; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394-1396; People v. Resendez (1993) 12 Cal.App.4th 98, 113-114.) Moreover, the court’s order was not invalid and did not constitute an unauthorized sentence. (People v. Moreno (2003) 108 Cal.App.4th 1, 10 [unauthorized sentence subject to correction whenever brought to court’s attention].)
Our independent review discloses no other reasonably arguable appellate issues. “[A]n arguable issue on appeal consists of two elements. First, the issue must be one, which, in counsel’s professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
DISPOSITION
The appeal in the above-entitled action is dismissed.