The People v. Castro CA6

Filed 8/29/13 P. v. Castro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H039014
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. SS062153)
v.
ALAN CASTRO,
Defendant and Appellant.
In 2007, defendant Alan Castro was convicted of assault with a deadly weapon
with enhancements for infliction of great bodily injury and gang participation. (Pen.
Code, §§ 245, subd. (a)(1); 12022.7, subd. (a)); 186.22, subd. (b)(1).) As part of the
judgment, the trial court ordered defendant to pay $2400 in restitution pursuant to Penal
Code section 1202.4, subdivision (b). On August 23, 2012, appellant filed a motion to
modify the amount of the restitution fine. The trial court denied the motion. Defendant
filed a timely notice of appeal from this order.
On appeal, we appointed counsel to represent defendant in this court. Appointed
counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436(Wende), but with a recognition of the limitation to Wende review set forth in People v.
Serrano (2012) 211 Cal.App.4th 496 (Serrano). Pursuant to Wende, the opening brief
states the case and the facts, but raises no specific issues. Wende review is only available
in a first appeal of right. (Serrano, supra, 211 Cal.App.4th at p. 501.) Because
defendant’s appeal is from an order after judgment seeking to modify the amount of the
restitution fine, and not a first appeal of right, he is not entitled to Wende review. (Ibid.)
Therefore, we will proceed with this appeal pursuant to the standard we enunciated in
Serrano.
Pursuant to Serrano, on March 14, 2013, we notified defendant of his right to
submit written argument in his own behalf within 30 days. On April 9, 2013, we
received a letter from defendant. In his letter, defendant contends that he was deprived of
his Sixth and Fourteenth Amendment rights to due process and that he received
ineffective assistance of counsel at trial. He further claims that his plea was involuntary
because he was not advised of the amount of the restitution fine prior to entering his plea.
Nothing in defendant’s letter suggests that there is an arguable issue on appeal from the
order denying his motion for modification of the restitution fine. Therefore, we decline
to retain the appeal.
The appellant having failed to raise any arguable issue on appeal, we dismiss the
appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
_________________________
MÁRQUEZ, J.
WE CONCUR:
_________________________
RUSHING, P.J.
_________________________
ELIA, J.