Fear Not Law Articles: P. v. Monroy

P. v. Monroy

Filed 2/22/07 P. v. Monroy CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

FRANCISCO JAVIER MONROY,

Defendant and Appellant.

F050966

(Super. Ct. No. F00658339-7)

O P I N I O N

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge.

Francisco Javier Monroy, in pro. per., for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

______________________

*Before Vartabedian, A.P.J., Cornell, J., and Kane, J.

Appellant was convicted in October 2001. In 2003, that conviction was affirmed on appeal in People v. Monroy, F039466.

In July 2006, appellant filed in Fresno County Superior Court a Motion for Modification of Sentence, Pursuant to Government Code Section 13967. The superior court denied that motion on July 17, 2006 (Hereinafter Order.) Appellant then filed a notice of appeal challenging that Order and the judgment rendered in 2001.

After being provided with the opportunity to explain why the Order might be appealable, appellant has failed to make a persuasive showing. Appellant has failed to provide any authority allowing an appeal from an order denying a motion to modify a judgment which became final several years earlier.

The rule is that an order after judgment seeking to correct the record is not separately appealable from the conviction. (Cf. People v. Chessman (1950) 35 Cal.2d 455, 468; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, 59.)

Orders denying motions to modify or vacate a judgment are also not appealable if the issues could have been on an appeal from the original judgment. (6 Witkin, supra, at 53, 54 and 59 and cases cited therein.) Appellants motion . . . challenge[d] the imposition of the $5,000.00 restitution fine . . . Two theories proposed: the evidence of ability to pay the fines was insufficient; the court based the ability to pay on future wages only. The issues raised in the motion could have been asserted in the Superior Court and on appeal.

An order denying a motion to vacate a judgment is an order after judgment, and might be considered appealable under P. C. 1237(b). But when an appealable judgment of conviction is entered, the defendant has an adequate remedy by an appeal from it. If it were permissible for the defendant to move to vacate the judgment, and then appeal from an order denying the motion, the effect 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.

For these reasons the order is ordinarily nonappealable, regardless of whether there was an appeal from the judgment, or whether the errors asserted are the same as those that were raised on an appeal from the judgment, or were such as could have been raised on such an appeal but were not. . . . (6 Witkin, supra, at 53.)

This court concludes that the Order is not appealable. Any other result would allow a defendant to file successive motions to modify or vacate a conviction and, upon their denials, perfect multiple appeals in essence challenging a judgment long since final. (Cf. 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, 99.)

This appeal is not taken timely from the judgment in 2001.

Therefore, the appeal in the above entitled action is dismissed.

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Description	An order denying a motion to vacate a judgment is an order after judgment, and might be considered appealable under P. C. 1237(b). But when an appealable judgment of conviction is entered, the defendant has an adequate remedy by an appeal from it. If it were permissible for the defendant to move to vacate the judgment, and then appeal from an order denying the motion, the effect 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. For these reasons the order is ordinarily nonappealable, regardless of whether there was an appeal from the judgment, or whether the errors asserted are the same as those that were raised on an appeal from the judgment, or were such as could have been raised on such an appeal but were not. . . . (6 Witkin, supra, at 53.) This court concludes that the Order is not appealable. Any other result would allow a defendant to file successive motions to modify or vacate a conviction and, upon their denials, perfect multiple appeals in essence challenging a judgment long since final. (Cf. 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, 99.) This appeal is not taken timely from the judgment in 2001. Therefore, the appeal in the above entitled action is dismissed.
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