Opinion
G045763 Super. Ct. No. FSB038602
02-15-2012
THE PEOPLE, Plaintiff and Respondent, v. JAMIE MICHAEL ORTEGA, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of San Bernardino County, Annemarie G. Pace, Judge. Affirmed.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Jamie Michael Ortega was convicted of murder, carjacking, and robbery. He was sentenced to a determinate term of six years in prison, and a consecutive indeterminate term of 26 years to life. As part of his sentence, defendant was ordered to pay $8,200 in restitution to the California Victim Compensation Board, and to pay a $1,000 restitution fine.
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested we consider whether the trial court erred by denying defendant's motion to strike or modify the restitution order.
On December 28, 2011, this court provided defendant with 30 days to file written argument on his own behalf. That period of time has passed, and we have received no communication from him.
We have examined the entire record and counsel's Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
BACKGROUND
Defendant and codefendant Mario Marquez were convicted of murder, carjacking, and robbery. Defendant was sentenced to a determinate term of six years in prison, and a consecutive indeterminate term of 26 years to life. As part of his sentence, defendant was ordered to pay $8,200 in restitution to the California Victim Compensation Board, and to pay a $1,000 restitution fine. In a prior unpublished opinion, this court affirmed the judgment against defendant. (People v. Marquez (Jan. 14, 2010, G041202).)
After his sentencing, defendant filed a motion to strike or modify the restitution orders, claiming: "I am indigent and housed in a prison facility that has no paying jobs avail[a]ble as well as I have lost the only outside support and any financial assistance I've had since the begin[n]ing of my incar[c]eration." The trial court denied the motion. Defendant timely appealed from the denial of his motion.
ANALYSIS OF POTENTIAL ISSUES
Appointed counsel suggested we consider whether the trial court erred by denying defendant's motion to strike or modify the restitution order. We review a restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.)
In this case, by statute, the trial court did not have the discretion to strike or modify the restitution order due to defendant's present inability to pay restitution or a restitution fine. "The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of a restitution order." (Pen. Code, § 1202.4, subd. (g).) In People v. Draut (1999) 73 Cal.App.4th 577, 582, the appellate court concluded the trial court erred in reducing a restitution order based on the trial court's belief that the defendant would be unable to pay the full amount of restitution. "[I]f the inability to pay were considered an extraordinary circumstance, the 'exception' would swallow the rule. Every defendant who would suffer hardship in paying a restitution award, i.e., almost every defendant, would be an 'extraordinary case' and would therefore be eligible for a reduced award." (Ibid.)The trial court in the present case did not err in denying defendant's motion to strike or modify the restitution order.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by appointed counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
DISPOSITION
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.