Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF109976-03, Darryl B. Ferguson, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Kane, J.
PROCEEDINGS
In an opinion filed on August 10, 2004, in case No. F044807, this court affirmed the convictions of nine counts of felony sexual abuse of a minor by appellant, Richard Frederick Mills. Although Mills’s appellate counsel filed a brief in the first appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), Mills filed a document contending the trial court erred in denying his motion to withdraw his plea, denying his postplea motion to represent himself, and ruling on the seizure of videotape evidence. In our first opinion, we rejected all three contentions. Mills raised no issue regarding his sentence or the restitution fine ordered by the trial court.
Mills was sentenced on January 15, 2004.
On August 23, 2007, Mills filed a motion in superior court to modify his sentence. His specific contention was that the court improperly imposed a $2,000 restitution fine (Pen. Code, § 1202.4) and the court based the fine on the erroneous assumption that Mills could pay the fine from his future prison wages. Mills asserted that the trial court failed to consider his ability to pay the fine. Mills claimed the alleged error was an unauthorized sentence. Mills sought to have the restitution fine reduced to $200. On August 27, 2007, the Tulare County Clerk’s Office sent a letter to Mills explaining that Judge Ferguson denied his motion to modify the judgment on August 24, 2007, and had also denied another motion to modify the judgment on February 4, 2005. Mills filed a notice of appeal on October 3, 2007. He did not obtain a certificate of probable cause.
Unless otherwise indicated, statutory references are to the Penal Code.
The motion to modify the judgment in February 2005 is not part of the record in the second appeal.
The failure to obtain a certificate of probable cause generally bars issues concerning the validity of a plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)
Mills’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on December 21, 2007, we invited appellant to submit additional briefing. To date, he has not done so. Appellate counsel, however, noted at the end of his Wende brief that Mills requested we address his motion to modify the judgment. Due to serious procedural infirmities with Mills’s motion that make it a nonappealable order, we will dismiss his 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.)
In People v. Cantrell (1961) 197 Cal.App.2d 40 (Cantrell), the defendant appealed his arson conviction, but his appeal was dismissed when he failed to file an appellant’s brief. More than six years later, long after the time to appeal from the original judgment, the defendant filed a motion for modification of the judgment. The trial court denied the motion and the defendant appealed. (Id. at p. 41.) In holding that the defendant’s appeal was not statutorily authorized, the Cantrell court first noted that the judgment was not void on its face and presented no fundamental jurisdictional defect. (Id. at pp. 43-44.)
The Cantrell court noted the statutory rule, that an appeal may be taken by the defendant from any order made after a judgment affecting the substantial rights of the party, is subject to a well established qualification. Relying on People v. Thomas (1959) 52 Cal.2d 521, 527-529, Cantrell explained that 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. Appeal from the judgment is an adequate remedy. Permitting an appeal from the order denying the motion to vacate would give the defendant two appeals from the same ruling and, since there is no time limit within which the motion may be made, would indefinitely extend the time for appeal from the judgment. 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 timely presented. (People v. Cantrell, supra, 197 Cal.App.2d at pp. 43-44.) In other words, an order usually is not appealable when the appeal would merely bypass or duplicate the appeal from the judgment itself. (People v. Totari (2002) 28 Cal.4th 876, 882.)
Where a judgment is not void on its face, no jurisdictional problem is presented, and the issues presented which could affect the judgment could have been raised on an appeal from that judgment, an order denying a motion to modify is unauthorized and must be dismissed. (Cantrell, supra, 197 Cal.App.2d at p. 45.) Mills 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.
Mills’s motion to modify the judgment was filed more than four and a half years after he was sentenced and four years after we issued the original appeal in this action. Mills failed to raise this issue in his original appeal, though he could have raised it then. In effect, Mills has filed two appeals from a single judgment.
The jurisdiction of the trial court following a judgment is confined to acts required to execute the judgment. (§§ 1193, 1265; People v. Ainsworth (1980) 217 Cal.App.3d 247, 255, 259 [postjudgment discovery motion].) The trial court did not have jurisdiction to hear Mills’s motion to modify the judgment.
At page seven of his motion to modify the judgment, Mills uses administrative regulations concerning the amount of prison wages to justify his argument that he will never be able to pay the fine. However, Mills did not present evidence of inability to pay in the court below, nor is there any support for this claim anywhere else in the record. Mills did not present evidence of his own prison wages, if any. Accordingly, this claim is not properly before us. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [review on a direct appeal is limited to the appellate record].)
Though we do not reach the merits of Mills’s contention, we note there are several obstacles to his argument. Trial courts are not required to consider a defendant’s lack of assets when imposing restitution fines. (§ 1202.4, subd. (c); People v. McGee (197 Cal.App.3d 710, 715.) A court need only make express findings concerning a restitution fine if it elects to omit the fine. (§ 1202.4, subd. (b); People v. Menius (1994) 25 Cal.App.4th 1290, 1298.) A finding of ability or inability to pay a restitution fine is not required. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1516; People v. Staley (1992) 10 Cal.App.4th 782, 785.) Mills’s reliance on administrative regulations to show his inability to pay the fine is evidence of doubtful utility because these regulations were presumably in place when Mills entered his plea. Also, as a recidivist, Mills was likely familiar with the prison wage system prior to his change of plea.
DISPOSITION
The appeal is dismissed.
The record before us is very sparse, limited to Mills’s motion to modify the judgment filed in the trial court and our opinion from the original appeal. We express no opinion as to whether Mills has a valid factual basis, based on information outside the current record, to pursue a writ petition. Should Mills chose to pursue this issue by way of writ petition, such a petition should be filed first in the superior court, not with this court. (In re Hillery (1962) 202 Cal.App.2d 293, 294.)