Opinion
F053231
4-14-2008
THE PEOPLE, Plaintiff and Respondent, v. STEVE LYNCH, Defendant and Appellant.
Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, Acting P.J., Harris, J., and Dawson, J.
On June 7, 2005, appellant Steve Lynch pled no contest to receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted allegations that he had suffered a "strike" and served a prison term for a prior felony conviction (§ 667.5, subd. (b)). On July 5, 2005, the court imposed a prison term of seven years, consisting of the three-year upper term on the substantive offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), plus one year on the prior prison term enhancement. The court also imposed a restitution fine of $1,000. Appellant did not appeal.
All statutory references are to the Penal Code.
We use the term "strike" as a synonym for "prior felony conviction" within the meaning of the "three strikes" law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On November 22, 2006, appellant filed a motion requesting that the court waive the restitution fine. By letter dated December 12, 2006, the clerk of the superior court informed appellant that the court had denied appellants request. On May 10, 2007, appellant filed a "MOTION FOR MODIFICATION OF SENTENCE," asking that the court reduce the restitution fine to $200. By letter of May 25, 2007, the clerk of the superior court informed appellant that the court had denied this request too. The instant appeal followed.
On appeal, appellant contends the court erred in denying his motion to modify his sentence because (1) the record contains insufficient evidence that appellant had the ability to pay the $1,000 restitution fine, and (2) he was denied certain procedural rights, and therefore this court should reduce the restitution fine to $200 or, in the alternative, remand the matter for an evidentiary hearing on the issue of appellants ability to pay the fine. We will conclude the courts denial of appellants motion to modify his sentence is a nonappealable order, and dismiss the appeal.
DISCUSSION
The right to appeal is purely statutory; a judgment or order is not appealable unless expressly made so by statute. (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Appellant contends his appeal is authorized under section 1237, subdivision (b) (section 1237(b)), which provides that a criminal defendant may appeal "[f]rom any order made after judgment, affecting the substantial rights of the party." There is no merit to this contention.
In People v. Cantrell (1961) 197 Cal.App.2d 40, the defendant appealed his arson conviction, but his appeal was dismissed when he failed to file an appellants brief. More than six years later, the defendant filed a motion for modification of the judgment. The trial court denied the motion, the defendant appealed and the appellate court dismissed the appeal. In holding that the defendants appeal was not statutorily authorized, the court stated: "`"Substantial rights" under [a former version of section 1237(b))] are not affected when defendants objections concern matters that could have been reviewed on timely appeal from the judgment. [Citations.] [¶]. . . `To the statutory rule that "An appeal may be taken by the defendant. . . from any order made after judgment, affecting the substantial rights of the party" [citation], there is a well established qualification. . .: Ordinarily no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground 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 denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limit[] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.] The considerations are the same whether the matters sought to be presented by motion to vacate actually were presented to the trial court prior to judgment of conviction or whether such matters should have been but were not so presented." (People v. Cantrell, supra, 197 Cal.App.2d at pp. 44-45.)
The court noted an exception to the foregoing where the defendant seeks modification of a "`void" judgment or one that is subject to one or more "`[f]undamental jurisdictional defects, like constitutional defects" (People v. Cantrell, supra, 197 Cal.App.2d at p. 44) but, the court held: "The judgment is not void on its face, no jurisdictional problem is presented, and the matters urged which could in any way affect the judgment could have been raised upon an appeal from said judgment. In these circumstances the appeal from the order denying motion to modify is unauthorized and must be dismissed." (Id. at p. 45.)
Appellant does not suggest that any of the purported errors he claims constitute constitutional and/or fundamental defects, nor does he assert the judgment is void. Rather, as we explain below, he suggests that the claims he raises in the instant appeal could not have been raised timely.
Appellant makes the following arguments in the instant appeal: "[T]here is no basis for a finding that [he] had the ability to pay the $1,000 restitution fine" because (1) due to legal limits on prison wages and the absence of any guarantee that appellant will be employed in prison, his earnings in prison will be meager and/or uncertain; (2) after his release from prison he "may not have the ability to pay the fine" because even though he is 37 years old he has "no employment history"; and (3) the sentencing court found that he lacked the ability to pay attorney fees; the court erred in failing to "conduct a hearing or receive evidence" regarding appellants "financial ability to pay the restitution fine," appellant did not waive the right to such a hearing and the court "made no finding" as to appellants ability to pay.
Appellant suggests that he should be excused from the requirement that these matters be raised on appeal because, he asserts, "he became aware of his inability to pay the fine only after being in prison," when he became aware of the "statutory and practical limitations on [his] prison earnings." However, appellant did not present evidence of, nor even make, this claim of belated awareness of inability to pay in the court below, nor is there any support for this claim supported anywhere else in the record. Accordingly, this claim is not properly before us. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 ["our review on a direct appeal is limited to the appellate record"].)
We express no opinion as to the merits of appellants contention that he lacked the ability to pay the restitution fine, or whether, if this claim is true, it would render the denial of his motion to modify his sentence an appealable order.
Appellant also argues that if this court determines the order that appellant challenges is nonappealable, we should treat the instant appeal as a petition for writ of mandate. He bases this argument on the following principle: "A purported appeal from a nonappealable order may be considered to be a petition for an extraordinary writ if (1) the briefs and record before us contain in substance all the elements prescribed by rule 56 of the California Rules of Court [now California Rules of Court, rule 8.490] for an original mandate proceeding and (2) there are extraordinary circumstances justifying the exercise of that discretionary power." (Angell v. Superior Court (1999) 73 Cal.App.4th 691, 698.)
As best we can determine, appellant contends the second of these factors is established because he was unaware until the time of his motion to modify his sentence that he lacked the ability to pay the restitution fine. However, as demonstrated above, the record contains no support for this claim. Accordingly, we decline appellants request that we treat the instant appeal as a petition for writ of mandate.
We assume without deciding that the first of these factors is established.
We express no opinion as to whether appellants claim of belated awareness of inability to pay would, if true, constitute an extraordinary circumstance justifying the treatment of the instant appeal as petition for a writ of mandate.
DISPOSITION
The appeal is dismissed.