Filed 3/30/22 P. v. Ray CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Edward Vincent Ray, Jr. (appellant) appeals the trial court’s denial of his motion for modification of restitution. Appellant’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) We conclude appellant is not entitled to Wende review of the postconviction order. Appellant also filed a supplemental brief. We reject the contentions in the supplemental brief and affirm.

BACKGROUND

As explained in this court’s November 2009 decision in the direct appeal from appellant’s conviction (People v. Ray (Nov. 23, 2009, A117630) [nonpub. opn.]) (A117630), appellant and his son were jointly charged with commission of a series of commercial robberies. Appellant was convicted of numerous counts of second degree robbery (Pen. Code, § 211)[1] and other offenses, with enhancements. Appellant was sentenced to an aggregate term of 38 years, 4 months in state prison.

Although it is not referenced in the decision in A117630, appellant was ordered to pay a $10,000 restitution fine (§ 1202.4, subd. (b)), and appellant was ordered to pay direct victim restitution to three victims in the amounts of $25,000, $2,249.54, and $900, with jurisdiction reserved to determine further restitution (§ 1202.4, subd. (f)).

Appellant asserted various claims of error in appeal number A117630, but he did not challenge the propriety of the restitution award.

In July 2021, appellant moved to modify the restitution award or, in the alternative, for a hearing to contest the restitution award. In August, the trial court denied the motion. This appeal followed.

Discussion

Appointed counsel has filed a Wende brief raising no issues. Wende review is required only in an indigent defendant’s “first appeal of right from a criminal prosecution . . . an appeal from the judgment of conviction.” (People v. Serrano (2012) 211 Cal.App.4th 496, 501; see also People v. Scott (2020) 58 Cal.App.5th 1127, 1130–1131, rev. granted Mar. 17, 2021 (S266853).) A defendant is not entitled to Wende review in an appeal from a postconviction order. (Scott, at p. 1132; Serrano, at p. 498.) The present appeal is from a postconviction order. Appellant is not entitled to Wende review.[2]

We next turn to appellant’s supplemental brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1040, rev. granted Oct. 14, 2020, S264278 [“if the defendant files a supplemental brief, the Court of Appeal is required to evaluate any arguments presented in that brief and to issue a written opinion that disposes of the trial court’s order on the merits”].) Appellant argues the trial court’s restitution award was an unauthorized sentence because, among other things, the claims were not supported by documentation, the victims had been reimbursed by insurance for their losses, and the trial court failed to hold restitution and ability-to-pay hearings. But appellant points to nowhere in the record where he objected to restitution on those or any other grounds before the trial court or before this court in appeal number A117630. (See People v. Trujillo (2015) 60 Cal.4th 850, 856 [“a defendant generally must preserve claims of trial error by contemporaneous objection as a prerequisite to raising them on appeal,” and “ ‘the forfeiture rule applies in the context of sentencing as in other areas of criminal law.’ ”].)[3] Further, appellant has not shown that his claims of error mean the restitution award was an “unauthorized sentence.” As explained in People v. Scott (1994) 9 Cal.4th 331, at page 354, “the ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. . . . [¶] Although the cases are varied, a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” Appellant has not made such a showing in the present case.

Disposition

The trial court’s order is affirmed.

SIMONS, J.

We concur.

JACKSON, P. J.

BURNS, J.

(A163749)

[1] All undesignated statutory references are to the Penal Code.

[2] The California Supreme Court has granted review in a case to decide “What procedures must appointed counsel and the Courts of Appeal follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit?” (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], rev. granted Feb. 17, 2021 (S266305).)

[3] Appellant argues his counsel’s failure to object constituted ineffective assistance of counsel. But, among other things, he has not shown any such claim is timely or that his trial or appellate counsel did not have a tactical reason for not objecting to restitution. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)