People v. Garcia CA6 ( 2016 )

Filed 2/8/16 P. v. Garcia CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H042468
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C9803123)
v.
JOSE GARCIA,
Defendant and Appellant.
Appellant Jose Garcia was convicted after jury trial of forcible rape, forcible
sodomy, two counts of penetration by a foreign object, felony sexual battery, and
possession of cocaine. (Pen. Code, §§ 261, subd. (a)(2); 288a, subd. (c); 289, subd. (a);
243.4, subd. (c); Health & Saf. Code, § 11350, subd. (a).) Based on the “One-Strike” law
(Pen. Code § 661), on May 10, 1999 he received a 25 to life sentence on the rape charge
and a two year term on the cocaine possession charge, with the remaining counts to run
concurrently. In appeal number H020041, appellant claimed that reversal was warranted
because the trial court made evidentiary and instructional errors. On December 14, 2000,
this court affirmed his conviction. Thereafter, appellant filed multiple requests for post
conviction relief in both the state trial court and in federal court, arguing, in part, that he
had received ineffective assistance of trial counsel and that the $10,000 restitution fine
was unauthorized. All of his requests for relief have been denied.
On April 27, 2015, Mr. Garcia filed a new motion asking that the trial court to
grant him a hearing to dispute the amount of restitution ordered in his case under Penal
Code section 1202.4, subd. (d)(1). On May 1, 2015, the trial court denied the motion in a
written order, noting the lack of relevance of Penal Code section 1202.4, subd. (d)(1),
which refers to victim restitution, not restitution fines, the fact that prior challenges to the
restitution fines had been made and denied, the lack of timeliness of the motion, and the
lack of jurisdiction to modify the restitution fines. The court characterized appellant’s
repeated filings raising the same issue as an abuse of process.
On appeal, we appointed counsel to represent appellant in this court. Appointed
counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal. App. 4th 496
(Serrano), which states the case and the facts but raises no specific issues. Pursuant to
Serrano, on October 2, 2015 we notified appellant of his right to submit written argument
in his own behalf within 30 days. On November 9, 2015, we received a supplemental
brief from appellant. In his supplemental brief, the appellant again argues that he
received ineffective assistance of trial counsel based on counsel’s failure to challenge the
restitution fine and based on appellate counsel’s failure to raise the issue in his original
appeal. He further claims that the restitution fine of $10,000 was excessive and the trial
court erred in imposing this fine without considering his ability to pay. He argues that
unauthorized and/or unlawful sentencing errors may be raised at any time. As the trial
court noted, appellant has raised these issues many times without success. In his
supplemental brief, he fails to show any error by the trial court in denying his current
motion.
Finally, appellant requests that this court order production of jury selection
proceedings. To the extent appellant has complaints about the composition of the jury,
that issue is not properly raised in an appeal from a post-judgment motion. If he wishes
to request transcripts to support a new petition for habeas corpus, he must make that
request in conjunction with such a petition, and not as part of a supplemental brief in this
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appeal. As nothing in appellant’s supplemental brief raises an arguable issue on appeal,
we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
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______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
___________________________________
ELIA, J.
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