Opinion
A167668
08-29-2023
THE PEOPLE, Plaintiff and Respondent, v. PHILIP LEO SANDS, Defendant and Appellant.
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. Nos. SCN 195209, 184929, 2131939, 2000256, 2000804, & 2000805.
We resolve this case by memorandum opinion because it raises no substantial issue of fact or law. (Cal. Stds. Jud. Admin., § 8.1.)
CHOU, J.
Defendant and appellant Philip Leo Sands appeals the trial court's denial of his motion for modification of restitution. Sands' appointed counsel on appeal filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Sands filed a supplemental brief. After review of this supplemental brief, we affirm the trial court's order.
In December 2005, Sands was sentenced to life without the possibility of parole after he was convicted of special circumstance murder. At sentencing, the trial court ordered Sands to pay a total of $507,390.65 in restitution to three victims for medical bills, lost wages, and funeral expenses. The court also ordered Sands to pay $10,000 in restitution fines.
In March 2023, Sands filed a motion to vacate the restitution fines and orders pursuant to Penal Code section 1465.9, which concerns the unenforceability of certain court-imposed costs. Sands argued that he was ordered to pay "over half a million dollars in restitution fines and direct orders" and that he "is indigent and has very little income to survive in prison." The trial court denied the motion on the grounds that (1) it lacked jurisdiction to modify the restitution fines because Sands' sentence had been executed; and (2) it may not consider Sands' inability to pay in determining the amount of victim restitution. (§ 1202.4, subd. (g).) Sands timely appealed the denial.
All further statutory references are to the Penal Code unless otherwise specified.
The Wende brief filed by Sands' counsel does not draw our attention to any issues under Anders v. California (1967) 386 U.S. 738, 744. Sands filed a supplemental brief which argues that (1) his trial counsel committed ineffective assistance of counsel by submitting to the restitution amounts when Sands was not present at sentencing; and (2) Sands has no means to pay the restitution amounts ordered. "California courts have declined to require Wende review in any appeal other than a first appeal of right from a judgment of criminal conviction." (People v. Freeman (2021) 61 Cal.App.5th 126, 132.) Wende review is therefore not required in this appeal from a postconviction order denying Sands' motion for modification of restitution.Nonetheless, we have considered Sands' supplemental brief and agree with counsel that no arguable issue exists on appeal. (See People v. Freeman, supra, 61 Cal.App.5th at p. 134 ["[w]hen an appellant files a pro se supplemental brief in a Wende case, the appellate court must address the specific issues raised and, if they lack merit, explain why they fail"].)
This court previously affirmed the underlying judgment following Sands' direct appeal (People v. Sands (Oct. 31, 2008, A112684) [nonpub. opn.]) and subsequently affirmed an order denying Sands' motion for a record development hearing (People v. Sands (Oct. 12, 2021, A160973) [nonpub. opn.]).
The trial court correctly denied Sands' motion. First, the motion referenced section 1465.9 but did not identify any court-imposed costs. Nor does the record reflect that any such costs were imposed. The motion also referenced the "over half a million dollars in restitution fines and direct orders" imposed against Sands and his inability to pay. However, as the trial court correctly noted, "[a] defendant's inability to pay shall not be a consideration in determining the amount of a [victim] restitution order." (§ 1202.4, subd. (g).) Second, the trial court lost jurisdiction to modify the restitution fines after Sands began serving his sentence. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204-1206.) Third, we find no merit in Sands' ineffective assistance of counsel argument based on the record before us and note that Sands was not present at sentencing pursuant to his own motion to be excused from the courtroom.
DISPOSITION
The trial court's order is affirmed.
We concur. JACKSON, P. J., SIMONS, J.