People v. Osuna CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD188468
- Trial judge
- Kenneth K. So
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald, Joan K. Irion
Analysis
The trial court entered a restitution order for $2,035,000 in 2014, nine years after the original sentencing, based on a civil judgment. The Court of Appeal affirmed the order after a Wende/Anders review found no reasonably arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Entry of a $2,035,000 restitution order in 2014 based on a civil judgment“The court thereafter entered a restitution order in the amount of $2,035,000.” | unclear | not reached | unsure The appellate court did not analyze the merits of the restitution order because it was a Wende/Anders appeal where counsel identified no reasonably arguable issues. The court affirmed the order without addressing the specific legal arguments regarding jurisdiction or the inclusion of noneconomic damages. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to identify arguable issues and the court to independently review the record when no issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel who believes an appeal is frivolous, requiring a brief identifying potential issues and court review.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the Wende/Anders protocol for reviewing a record when counsel finds no arguable issues. However, it is substantively thin because it fails to address the specific legal questions raised by counsel (jurisdiction and noneconomic damages) in the body of the opinion, relying solely on the conclusion that no errors were found.
How this analysis was made · dispute it
unusual dispositionThe trial court, nine years after imposing a 15-years-to-life sentence for child molestation and reserving jurisdiction over victim restitution, entered a 2014 restitution order of $2,035,000 in the amount of a civil judgment obtained by victim M.G. On appeal, appointed counsel filed a Wende/Anders brief identifying four possible but not arguable issues, the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed the restitution order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's determination that it retained jurisdiction, reserved at the 2005 sentencing, to set the amount of victim restitution in 2014“The court determined jurisdiction had been reserved at the time of the original sentencing for the purpose of determining the amount of restitution due to the victim.” | unclear | correct | agree with court The opinion recites that restitution was ordered in 2005 in an amount to be determined and that jurisdiction was reserved; under Penal Code section 1202.46 a court that defers the amount of restitution retains jurisdiction to fix it later, so the result appears correct, though the opinion cites no authority and does not explain its reasoning beyond the Wende review. |
Restitution order setting victim restitution at $2,035,000, the amount of the civil judgment, which included noneconomic damages“The court thereafter entered a restitution order in the amount of $2,035,000.” | abuse of discretion | correct | agree with court Counsel framed the amount and the noneconomic-damages components as abuse-of-discretion questions; Penal Code section 1202.4, subdivision (f)(3)(F) expressly authorizes noneconomic losses for section 288 victims, and a civil judgment on the same conduct is a rational basis for the amount, so affirmance is defensible, but the opinion offers no analysis and the record described is too thin to be certain. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court and identify anything in the record that might arguably support the appeal.
- missed: People v. Smith (2011) 198 Cal.App.4th 415 — Penal Code section 1202.4, subdivision (f)(3)(F) authorizes restitution for noneconomic losses, including psychological harm, to victims of Penal Code section 288 offenses; directly supports rejecting counsel's fourth possible issue.
The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure, lists the possible issues counsel identified, and states that the court independently reviewed the record, which is all that is required in a no-issue appeal. It cites no substantive authority on continuing restitution jurisdiction or noneconomic damages, so the reader cannot see why the identified issues were not arguable, though the result is consistent with Penal Code sections 1202.46 and 1202.4, subdivision (f)(3)(F).
Opinion
Filed 9/25/14 P. v. Osuna CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065880
Plaintiff and Respondent, v. (Super. Ct. No. SCD188468)
ANTONIO FORTANEL OSUNA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kenneth K.
So, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
In 2005, Antonio Fortanel Osuna was sentenced to prison for an indeterminate term of 15 years to life for multiple counts of child molestation (Pen. Code,1 §§ 288, subd. (a) & 667.61, subds. (b), (c), (e)). The court ordered restitution fines and ordered 1 All further statutory references are to the Penal Code unless otherwise specified. victim restitution in an amount to be determined. We affirmed the judgment in November 2006.
In 2013, a civil judgment was entered against Osuna on behalf of victim M.G. in the amount of $2,035,000. In 2014, the victim filed a claim for restitution in the criminal case in the amount set forth in the civil judgment.
The trial court held a restitution hearing on April 21, 2014. The court determined jurisdiction had been reserved at the time of the original sentencing for the purpose of determining the amount of restitution due to the victim. The court thereafter entered a restitution order in the amount of $2,035,000.
Osuna filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), and Anders v. California (1967) 386 U.S. 738 (Anders), indicating she has been unable to identify any arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende.
We advised Osuna he could file his own brief on appeal but he has not responded.
STATEMENT OF FACTS
Two girls under the age of 14 were molested by Osuna over a period of time.
Osuna confessed to the allegations.
DISCUSSION
As we have noted, appellate counsel has indicated she is unable to identify any reasonably arguable issue for reversal on appeal. She has asked this court to review the 2 record on appeal. Pursuant to Anders, supra, 386 U.S. 738, counsel has identified the following possible, but not reasonably arguable issues:
1. Did the court have jurisdiction to consider a restitution order nine years after the original sentencing?
2. Was the original restitution order a sufficient basis for the court to retain continuing jurisdiction?
3. Did the court abuse its discretion in setting the amount of restitution?
4. Did the court abuse its discretion in setting an amount of restitution based on a civil judgment which included noneconomic damages?
We have reviewed the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not discovered any reasonably arguable issue for reversal on appeal. Osuna has been represented by competent counsel on this appeal.
DISPOSITION
The order for restitution entered in 2014 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
IRION, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12