Filed 9/27/17 P. v. Dondoy CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
| THE PEOPLE, Plaintiff and Respondent, v. WILMA DONDOY et al., Defendants and Appellants. |
A146003
(City & County of San Francisco Super. Ct. Nos. 217384; 217385) |
In this mortgage fraud case, co-defendants Wilma Dondoy and Ronaldo Dondoy appeal[1] from an order requiring them to pay Sun Trust Bank, jointly and severally, restitution in the amount of $250,000. Appellate counsel for Wilma and Ronaldo have filed separate opening briefs in which no issues are raised and each counsel asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel for Wilma submitted a declaration stating that he notified Wilma that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Counsel also advised Wilma of her right personally to file a supplemental brief raising any issues she chooses to bring to this court’s attention. No supplemental brief has been filed by Wilma personally. Similarly, counsel for Ronaldo submitted a declaration stating that he notified Ronaldo that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Counsel also advised Ronaldo of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by Ronaldo personally.
BACKGROUND
In January 2012, defendants pleaded guilty to one count of grand theft (Pen. Code, § 487, subd. (a)), predicated on mortgage fraud. Both defendants were placed on probation, with restitution to be determined at a future date. At the June 19, 2015 restitution hearing the parties agreed the amount owed to Sun Trust Bank was $250,000. Defense counsel stated he had “looked over the numbers and agree[d] the numbers [were] valid and there [was] evidence for the numbers.” However, defendants would not stipulate to the amount, in order to preserve the issue for appeal. Counsel conceded that defendants did not have any new evidence to present to the court that contradicted any of the numbers.
DISCUSSION
Whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from a postjudgment order—after the defendant has had an opportunity to appeal the original conviction—remains an open question. Our Supreme Court has not spoken. The Anders/Wende procedures address appointed counsel’s representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been reluctant to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551, 554-556; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535-537; In re Sade C. (1996) 13 Cal.4th 952, 966; People v. Kisling (2015) 239 Cal.App.4th 288, 290; People v. Serrano (2012) 211 Cal.App.4th 496, 503.) Nonetheless, in the absence of published authority to the contrary, we believe it prudent to adhere to Wende in the present case, where counsel have already undertaken to comply with Wende requirements and defendants have been afforded an opportunity to file a supplemental briefs.
Having undertaken an independent examination of the record, we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. We discern no error in the restitution order. The restitution order was consistent with applicable law, supported by substantial evidence, and well within the discretion of the trial court. (People v. Giordano (2007) 42 Cal.4th 644, 663.) At all times defendants were represented by counsel.
DISPOSITION
The order is affirmed.
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REARDON, J.
We concur:
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RUVOLO, P. J.
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RIVERA, J.
A146003 People v. Dondoy
[1] For purposes of clarity, at times, we will refer to defendants as Wilma and Ronaldo. Wilma and Ronaldo had separate counsel below. They have filed separate notices of appeal and have separate appellate counsel.
