People v. Ross CA1/2

Filed 10/22/20 P. v. Ross CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, No. A160167

v. (Solano County Super. ALEX DEON ROSS, Ct. No. VC37766) Defendant and Appellant.

Appellant Alex Deon Ross appeals from an order of the Solano County Superior Court denying his postjudgment motion challenging the court’s 1998 imposition of certain fines, including a $10,000 restitution fine under Penal Code section 1202.4. His court-appointed counsel has filed a brief raising no legal issues and requesting this court to conduct an independent review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Counsel declares that he has advised Ross that he may personally file a supplemental brief within 30 days of the filing of the brief filed by counsel. Ross did not file a supplemental brief. BACKGROUND In 1996, Ross was convicted after a jury trial of numerous criminal offenses. He was sentenced, he appealed and he was resentenced in 1998 to a total prison term of 52 years to life. The sentencing court in 1998, as it did in

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1996, ordered Ross to pay a $10,000 restitution fine under Penal Code section 1202.4 and a parole revocation fine in the same amount under Penal Code section 1202.45. The record does not indicate that Ross appealed from this resentencing order. In April 2020, Ross filed a petition in Solano County Superior Court challenging the court’s 1998 imposition of the restitution and parole revocation fines, purportedly without conducting a hearing and determining his ability to pay them, which petition Ross based on People v. Dueñas (2019) 30 Cal.App.5th 1157 and certain constitutional protections. The superior court denied his petition without explanation. Ross filed a timely notice of appeal with a request for a certificate of probable cause. The superior court granted his request for the certificate. DISCUSSION One of the cases relied on by Ross’s counsel, Serrano, supra, 211 Cal.App.4th 496, involved an appeal from the denial of a postconviction motion challenging the sufficiency of the admonitions the defendant had received regarding the immigration consequences of his plea. As Ross’s counsel acknowledges, Serrano held that a review under Wende and Anders v. California (1967) 386 U.S. 738 (collectively, Wende review) is limited to the defendant’s first appeal as of right from a criminal conviction (Serrano, at p. 503), and such a review is therefore unavailable in a case such as this. Anticipating that we would decline to conduct a Wende review in light of Serrano, Ross’s counsel urges us to employ a procedure prescribed in Serrano that is based on that employed in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.). According to Serrano, where counsel has not raised any legal issues in an appeal from a postconviction proceeding, the applicable procedure is that