Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA120338
THE COURT:In 1996, after a jury trial, Mario Alexander Nungaray was convicted of first degree murder (Pen. Code, § 187, subd. (a)). The jury found to be true the personal firearm use allegation within the meaning of section 12022.5, subdivision (a). The trial court sentenced him to an aggregate state prison term of 29 years to life and imposed a restitution fine of $5,000.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appealed from that judgment, in appellate case No. B109534, raising only the issue of whether the trial court had a sua sponte duty to instruct the jury regarding provocation in accordance with CALJIC No. 8.73. On January 7, 1998, we issued our decision, determining that the trial court had no duty to so instruct and affirmed the judgment.
On March 24, 2010, appellant filed an “Open Letter to the Court, ” asking the trial court to provide transcripts to assist him in seeking relief from his restitution order and “appeal his juvenile fitness hearing and conviction in general.” He concurrently filed a “Motion for Modification of Sentence, ” seeking to modify the restitution fine of $5,000, arguing that the trial court did not consider his ability to pay in rendering its award, and a “Motion for Appointment of Counsel and Declaration of Indigency, ” to assist him with regard to his case, in a manner that he fails to clearly specify in the motion. The trial court denied all relief.
Appellant now appeals from the order denying his Motion for Modification of Sentence and Motion for Appointment of Counsel. We appointed counsel to represent him on this appeal. After examination of the record, counsel filed an “Opening Brief” in which no issues were raised. On October 4, 2010, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
On October 20, 2010, appellant filed a supplemental letter brief raising numerous claims, some relating to issues pertaining to his trial in this matter, including: (1) ineffective assistance of counsel for failing to subpoena an expert witness to testify during his juvenile fitness hearing and to appeal from the ruling at that hearing, thereby denying him of his rights under the Fifth, Sixth and Fourteenth Amendments to the federal Constitution, (2) ineffective assistance of counsel for failing to investigate regarding, and to subpoena for trial, an expert witness to evaluate his mental capacity, (3) ineffective assistance of appellate counsel in connection with his prior appeal for counsel’s failure to raise numerous issues, (4) the trial court erroneously imposed a $5,000 restitution fine, though appellant was indigent, (5) the custody and conduct credits are inaccurate, and (6) the time for appellant’s release is incorrect on California Department of Correction records.
With regard to claim Nos. 1 to 3, appellant relies on matters outside the record on this appeal and which must therefore be raised by Writ of Habeas Corpus. (See People v. Mendoza (2007) 42 Cal.4th 686, 711.) Claim Nos. 1, 2, and 4, above, are not cognizable on this appeal as they could have been, but were not, raised in appellant’s earlier appeal in this matter in case No. B109534. (People v. Senior (1995) 33 Cal.App.4th 531, 533 [“when a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have waived the right to raise the issue in a subsequent appeal, absent a showing of good cause or justification for the delay”]; see also People v. Murphy (2001) 88 Cal.App.4th 392, 396 [on appeal from a limited remand, the appellant is precluded from raising a new argument that could have been raised in the initial appeal because the time in which to make it has passed].) With regard to claim Nos. 5 and 6, appellant fails to meet his burden of affirmatively demonstrating the error he alleges (People v. Carter (2010) 182 Cal.App.4th 522, 531, fn. 6), as a point asserted on appeal without authority or adequate development of argument will not be considered (People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9).
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The order under review is affirmed.