Opinion
H043296 H044111
03-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE JUAN LUNA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS122246)
Defendant Jose Juan Luna appeals from his judgment of conviction after a remand for resentencing (case No. H043296) and from the trial court's subsequent order correcting the judgment of conviction for errors related to fines and fees (case No. H044111). In both cases, counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant was notified of his right to submit written arguments in both appeals within 30 days. Thirty days have elapsed, and we have not received any letter briefs from defendant. Pursuant to Wende, we have conducted a review of the record in both case Nos. H043296 and H044111 and find no arguable issues. We affirm the judgments.
On November 17, 2016, we ordered the two appeals considered together for the purposes of oral argument and decision.
DISCUSSION
Defendant first appealed after the trial court sentenced him to 79 years in state prison following his convictions of five counts of committing lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), eight counts of committing forcible oral copulation (§ 288a, subd. (c)(2)(A)), two counts of committing lewd and lascivious acts upon a child between the ages of 14 and 15 (§ 288, subd. (c)(1)), six counts of committing unlawful sexual intercourse with a minor more than three years younger than him (§ 261.5, subd. (c)), and one count of attempted unlawful sexual intercourse with a minor more than three years younger than him (§§ 664, 261.5, subd. (c)). (People v. Luna (July 29, 2015, H040191) [nonpub. opn.].) We reversed and remanded the matter for resentencing after finding insufficient evidence supported one of his convictions of forcible oral copulation (count 7).
Unspecified statutory references are to the Penal Code.
On January 7, 2016, the trial court resentenced defendant. It reversed one of defendant's convictions for forcible oral copulation (count 7) and struck the associated six-year sentence. Defendant's sentence was reduced to a total term of 73 years. The amended abstract of judgment reflected a court operations assessment of $900 imposed pursuant to section 1465.8, subdivision (a)(1) and a court facilities assessment of $660 imposed pursuant to Government Code section 70373.
Defendant appealed (case No. H043296). On appeal, defendant argued the trial court erred in calculating the fees imposed under section 1465.8, subdivision (a) and Government Code section 70373. Defendant also submitted a letter to the trial court requesting the court correct the errors in his fees. Thereafter, the trial court amended its minute order and abstract of judgment to reflect the correct amount of fees ($840 under § 1465.8, subd. (a)(1); $630 under Gov. Code, § 70373). The amended minute order, however, erroneously stated defendant was sentenced to state prison for a total fixed term of 79 years, not 73 years. It also erred in calculating defendant's restitution fine.
Since the trial court had corrected its minute order and abstract of judgment to reflect the correct amount of fees, this court struck defendant's opening brief and allowed defendant to file a brief pursuant to Wende, supra, 25 Cal.3d 436 in case No. H043296. However, to challenge the trial court's erroneous imposition of a 79-year sentence in its order, defendant filed a second notice of appeal in case No. H044111. Defendant again submitted a letter to the trial court requesting correction of the order to reflect a sentence of 73 years and correction of the restitution fine. The trial court amended its order to correct the erroneous sentence to 73 years and impose a restitution fine of $5,740 under section 1202.4, subdivision (b). Thereafter, defendant submitted a brief in case No. H044111 raising no issues but requesting independent review of the record as required under Wende, supra, 25 Cal.3d 436.
Alternatively, defendant requested we notify the defendant of his right to submit written argument on his own behalf under People v. Serrano (2012) 211 Cal.App.4th 496. In both case Nos. H043296 and H044111, defendant appeals his judgment of conviction following resentencing after this court's remand. Thus, not having a prior opportunity to review defendant's new sentence for error, we conduct Wende review in both cases. --------
After reviewing the records in case Nos. H04329 and H044111, we conclude there are no arguable issues on appeal.
DISPOSITION
The judgments are affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Grover, J.