People v. Costello CA1/2

Filed 6/23/15 P. v. Costello CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A143610 v. PERCEL COSTELLO, (Alameda County Super. Ct. No. CH-47551) Defendant and Appellant.

Appellant, Percel Costello, appeals from the order of the Alameda County Superior Court denying his postjudgment motion to reduce the restitution fine imposed. His court-appointed counsel has filed a brief raising no legal issues and requesting this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436 “and/or” People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Assigned counsel declares that he has written appellant at his last known address and advised him that a Wende brief would be filed in his case and that he may personally file a supplemental brief within 30 days of that filing raising any issues he wishes to call to the court’s attention. (Wende brief at p. 7.) Appellant did not file a supplemental brief. FACTS AND PROCEEDINGS BELOW On February 22, 2010, pursuant to a plea bargain, appellant entered a no contest plea to a single count of burglary (Pen. Code, § 459)1 and admitted one prior conviction

1 All subsequent statutory references are to the Penal Code.

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within the meaning of the Three Strikes Law (§§ 667, subd. (e), 1170.12, subd. (c)). Consistent with the plea bargain, appellant was on March 15, 2010, sentenced to state prison for 12 years.2 The court also imposed a restitution fine in the amount of $2,400 (§ 1202.4, subd. (b)) and suspended imposition of a parole revocation restitution fine (§ 1202.45) also in the amount of $2,400. More than three years later, on June 10, 2014, appellant filed a pro. per. motion seeking reconsideration of his ability to pay the $2,400 restitution fine. In a declaration and memorandum of points and authorities, appellant claimed the sentencing court erroneously failed to conduct a restitution hearing and he was now “completely unable to satisfy the court’s restitution order.” In his declaration, appellant explained that “[p]rior to having been re-classified due to my medical restrictions,[3] I was working in the institution where I resided, and I was then able to pay-down my restitution by $893.01. . . . [¶] Because of the changes in my physical condition, I am no longer able to work while incarcerated; and upon my release, I will be on a limited fixed income as a veteran, which is not nearly sufficient for me to sustain the necessities of life, especially given my progressive debilitating condition which require[s] me to pay for additional medical items not covered by the VA Bill. [¶] In calculating food, shelter, clothing, and other bills; I am indigent and cannot foresee any means to sustain ordinary things needed to survive.” On August 4, 2014, the trial court denied the motion to reconsider on the ground that it had “no jurisdiction to modify the restitution fine because criminal proceedings have concluded and the judgment is final,” citing, inter alia, People v. Turrin (2009) 176 Cal.App.4th 1200, 1208, “[s]ince the trial court lacked jurisdiction to modify the restitution fines, its order denying defendant’s motion requesting the same did not affect