People v. Andrade CA5

Filed 11/4/15 P. v. Andrade CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070214 Plaintiff and Respondent, (Super. Ct. No. VCF037400-96) v.

MICHAEL STEPHEN ANDRADE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Poochigian, J. and Smith, J.

The trial court denied Michael Stephen Andrade’s motion for relief from a $10,000 restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (b).1 The fine was imposed at the sentencing hearing that occurred in 1998. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asserting he failed to identify any arguable issues in the appeal. On November 13, 2014, we sent to Andrade a letter inviting him to inform us of any issues he wanted this court to consider. Andrade responded and asks us to reduce the restitution fine, for the same reasons as stated in his motion. We agree with appellate counsel that there are no arguable issues in this case. Andrade confuses section 1202.4, which must be imposed in all criminal cases unless unusual circumstances exist, with section 1202.45, which may be imposed only if a period of parole is imposed. The trial court initially imposed both fines, but subsequently ordered the fine imposed pursuant to section 1202.45 deleted from the judgment since Andrade is serving a sentence with no possibility of parole. The fine pursuant to section 1202.4 was properly imposed. Accordingly, we affirm the judgment. DISCUSSION It appears that in 1997 Andrade was convicted of first degree murder and rape, and the jury found true the special circumstance that the murder was committed during the perpetration of a rape. On January 30, 1998, he was sentenced to life without the possibility of parole, apparently after the jury decided against imposing the death penalty. These facts are drawn from our unpublished opinion (People v. Andrade (Mar. 14, 2001) F030291) in which we affirmed the judgment. It further appears that part of the judgment included a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b). Our opinion from Andrade’s initial appeal