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People v. Zaragoza

Court of Appeal of California
Jul 29, 2008
F055042 (Cal. Ct. App. Jul. 29, 2008)

Opinion

F055042

7-29-2008

THE PEOPLE, Plaintiff and Respondent, v. MARTIN ZARAGOZA, Defendant and Appellant.

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Not to be Published


OPINION

THE COURT

FACTS

Appellant was convicted on June 28, 1993, of first degree murder and arson. The jury found appellant personally used a firearm. On July 26, 1993, the Fresno County Superior Court sentenced appellant to a term of 25 years to life plus a consecutive term of four years and four months for arson and the firearm enhancement. The court also imposed a restitution fine of $5,000.00 pursuant to Government Code section 13967. In January of 2008, appellant filed a motion to modify his sentence to reduce his restitution fine from $5,000.00 to $200.00. Appellant claims that the sentence is unlawful because the court did not make the required finding of ability to pay. The Fresno County Superior Court denied the motion without a hearing on February 13, 2008.

On April 8, 2008, appellant filed a notice of appeal from the February 13, 2008, order denying his motion for modification of sentence. Counsel was appointed on May 13, 2008, and on July 2, 2008, counsel filed a request to expand appointment to include filing a petition for writ of habeas corpus challenging the denial of his motion.

On July 7, 2008, this court issued an order directing appellant to address the appealability of the February 13, 2008, order denying his motion to modify his sentence imposed on June 28, 1993, and asking whether the appeal should be dismissed. The order stayed briefing pending further order of this court.

On July 14, 2008, counsel did not address the question of whether the February 13, 2008, is an appealable order, stating that should this court lift the stay that was imposed on July 7, 2008, regarding briefing, counsel would file a brief pursuant to the provisions of People v. Wende (1979) 25 Cal.3d 436. Counsel also reiterated his request that counsels appointment be expanded to include filing a petition for writ of habeas corpus.

Upon his failure to provide any authority allowing an appeal from an order denying a motion to modify a judgment which became final approximately 15 years earlier, the appeal should be dismissed.

Orders denying motions to modify or vacate judgment are not appealable if the issues could have been raised on appeal from the original judgment. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, §§ 53, 54 & 59.) The issues raised in the motion could have been raised in the Superior Court and in a timely appeal.

"If it were permissible for the defendant to move to vacate the judgment, and then appeal from an order denying the motion, the affect would be to give either of two entirely unwarranted privileges: (a) The defendant could appeal from the judgment and also from the order denying the motion to vacate, thus obtaining two appeals from virtually the same ruling. (b) The defendant could neglect to appeal from the judgment, and at any later time make the motion to vacate and appeal from the order of denial, thus indefinitely extending the time for appeal. (6 Witkin, supra, at § 53.)

This court concludes that the order is not appealable.

DISPOSITION

The appeal is dismissed. Counsels request for expansion of his appointment to include filing a petition for writ of habeas corpus is denied. --------------- Notes: Before Levy, Acting P.J., Dawson, J., and Hill, J.


Summaries of

People v. Zaragoza

Court of Appeal of California
Jul 29, 2008
F055042 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Zaragoza

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARTIN ZARAGOZA, Defendant and…

Court:Court of Appeal of California

Date published: Jul 29, 2008

Citations

F055042 (Cal. Ct. App. Jul. 29, 2008)