P. v. Saenz
Filed 7/16/13 P. v. Saenz CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN SAENZ, JR.,
Defendant and Appellant.
E057764
(Super.Ct.No. CR66620)
OPINION
APPEAL from the Superior Court of
County. Becky Dugan,
Judge. Affirmed.
Joseph
T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant Juan Saenz, Jr., appeals after the trial court denied his ex
parte motion for reconsideration of
his restitution fine (set at $5,000), based on a claim that the trial court
failed to determine his ability to pay the fine imposed, and a claim that his
trial attorney was incompetent in failing to object to the restitution order
amount, or to advise defendant of his right
to appeal the restitution order. We
affirm.
FACTS AND PROCEDURAL HISTORY
Defendant
is a state prison inmate who apparently was convicted of a crime
restitution fine of $5,000. Since his
incarceration in 1997, defendant has made payments on the restitution fine from
his prison earnings. As of July 2012, 15
years after starting payments, $3,859.67 still remained to be paid on the
restitution fine.
On August 10, 2012, defendant filed an
reconsideration of the restitution fine.
Defendant contended that the sentencing court failed to consider his
ability to pay when it decided to impose a restitution fine of $5,000. He argued that the fine was excessive under
the Eighth Amendment, apparently based on his estimation that it would take him
an additional 50 years, at his current earning rate, to pay the entire
fine. Defendant also argued that his
trial attorney was incompetent for failing to object to the restitution order,
and failing to present evidence of defendant’s indigent status to the
sentencing court, to challenge the appropriateness of the fine imposed. Defendant complained that the attorney’s
failure to object forfeited defendant’s right to appeal on that issue. The attorney also did not advise defendant to
consult an independent attorney about a potential ineffective assistance of
counsel (IAC) claim on appeal. Finally,
defendant urged that the imposition of such a fine violated the equal
protection of the laws, because convicted persons who are granted probation
have the ability to earn income with which to pay fines, but state prisoners do
not.
Minute
orders included in the record show that the trial court read and considered
defendant’s ex parte motion on August 10, 2012, but made no disposition of
the motion. On November 8, 2012, a different judge also entered a minute order
stating that it had read and considered defendant’s ex parte communication, but
again no disposition appeared on the minutes.
With his notice of appeal, filed December 21, 2012, defendant included
another copy of the minute order of November 8, 2012, this time showing that,
“The Court hereby denies said request,†i.e., for reconsideration of the
restitution order.
ANALYSIS
After
defendant filed his notice of appeal, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of
and Anders v. California (1967) 386
U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the
case, and identifying two possible, related areas of inquiry: whether the trial court properly denied
defendant’s ex parte application for reconsideration of the restitution fine,
and whether the issue of defendant’s ability to pay has been forfeited.
Defendant
has been offered an opportunity to file a personal
supplemental brief; no such brief has been filed. Pursuant to the mandate of
we have conducted an independent examination of the entire record and have
found no arguable issues.
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
MCKINSTER
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] Defendant does not identify the offense or
offenses of which he was convicted and for which he is incarcerated. The minute orders in the clerk’s transcript
list the charges in defendant’s case as:
“1) 187 PC, 1) 187 PC, 2) 664/187 PC, 2) 664/187 PC,†or “1) 187 PC-F C,
2) 664/187 PC-F C,†from which we infer that defendant may have been convicted
of one count of murder and one count of attempted murder.
