People v. Villesca CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Bernardino County · No. FSB1104585
- Trial judge
- Cheryl C. Kersey
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Julia C. Kelety
Analysis
The trial court summarily denied Villesca's motion to vacate a $10,000 restitution fine under Penal Code section 1465.9, subdivision (b). The Court of Appeal affirmed the denial after an independent review of the record pursuant to People v. Wende, finding no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to vacate restitution fine under Penal Code section 1465.9, subdivision (b)“The court summarily denied the motion.” | unclear | not reached | unsure The appellate court did not apply a specific standard of review to the trial court's denial because it was conducting an independent review under People v. Wende. The court stated it had 'reviewed the entire record as required by Wende and Anders' and 'have not discovered any arguable issues for reversal on appeal.' Consequently, the court affirmed the order without analyzing the trial court's specific legal reasoning or applying a standard of review such as abuse of discretion. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying arguable issues or, if none exist, to request the court to independently review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires independent review of the record by the appellate court when counsel files a brief stating there are no arguable issues.
The appellate opinion: sound with gaps — The opinion is procedurally sound in that it follows the required Wende/Anders protocol for cases where counsel identifies no arguable issues. However, it provides no substantive legal analysis regarding the interaction between Penal Code section 1465.9 and section 1202.4, relying solely on the court's independent review to affirm the denial.
How this analysis was made · dispute it
unusual dispositionThe trial court summarily denied Benito Villesca's 2022 motion under Penal Code section 1465.9, subdivision (b) to vacate the $10,000 restitution fine imposed under section 1202.4 at his 2013 sentencing for sexual abuse offenses. On appeal, appointed counsel filed a Wende brief, Villesca filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed the order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of Villesca's motion to vacate the section 1202.4 restitution fine under section 1465.9, subdivision (b)“Whether any of the restitution orders imposed in this case under section 1202.4 are subject to total or partial vacatur in light of section 1465.9.” | unclear | correct | agree with court Section 1465.9, subdivision (b) renders unenforceable and vacates the unpaid balance of specified administrative costs and fees (e.g., those imposed under sections 1001.15, 1001.16, 1001.90, 1203.1, 1203.1ab, 1203.1c, 1203.1m, 1203.4a, 1203.9, 1205, 1214.5, 2085.5, 2085.6, 2085.7); it does not list the restitution fine under section 1202.4, which is a punitive fine rather than a repealed cost. The denial therefore appears correct on the face of the statute, although the opinion never explains this and simply states that no arguable issue was found after Wende/Anders review. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues in an indigent defendant's first appeal of right, the Court of Appeal must independently review the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel who finds an appeal wholly frivolous must so advise the court and file a brief referring to anything in the record that might arguably support the appeal.
- missed: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders independent review is not constitutionally mandated in appeals from postjudgment orders (there, denial of a section 1172.6 petition); the court must notify the defendant that failure to file a supplemental brief may result in dismissal as abandoned, and may, but need not, exercise discretion to conduct independent review.
The appellate opinion: sound with gaps — The affirmance is correct because section 1465.9 does not reach restitution fines imposed under section 1202.4, but the opinion never says so and simply declares the record free of arguable issues. It also describes Wende review as 'mandated' in a postjudgment appeal without addressing People v. Delgadillo, which holds such review is discretionary rather than required in this posture; the court's choice to review anyway makes the omission harmless to the result.
Opinion
Filed 1/26/24 P. v. Villesca 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, D081768
Plaintiff and Respondent, v. (Super. Ct. No. FSB1104585)
BENITO VILLESCA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino County, Cheryl C. Kersey, Judge. Affirmed. Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2013, a jury convicted Benito Villesca of multiple felony offenses involving sexual abuse of his daughter. He was originally sentenced to an indeterminate term of 300 years to life in prison plus a determinate term of 156 years and eight months. The court also imposed a restitution fine of $10,000 under Penal Code1 section 1202.4. Villesca appealed and this court reversed one count and otherwise affirmed the convictions. The case was remanded for resentencing in an unpublished opinion. (People v. Villesca (June 8, 2015, D066700).) On remand, the trial court reduced the determinate portion of the sentence to 140 years and eight months.2 In 2022, Villesca filed a motion to vacate the restitution fine pursuant to section 1465.9, subdivision (b). The motion did not seek to vacate any of the other fines and assessment imposed by the trial judge. The court summarily denied the motion. Villesca filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to independently review the record for error as mandated by Wende. We offered Villesca the opportunity to file his own brief on appeal, but he has not responded. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel 1 All further statutory references are to the Penal Code.
2 We have not set forth the lengthy list of code sections that were the basis of Villesca’s convictions. This appeal does not challenge the prior judgment. Likewise, we will not include a statement of facts in this opinion. The facts of the offenses are fully addressed in our prior opinion. 2 has identified a possible, but not arguable, issue that was considered in the evaluation of the potential merits of this appeal: Whether any of the restitution orders imposed in this case under section 1202.4 are subject to total or partial vacatur in light of section 1465.9. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Villesca on this appeal. DISPOSITION The order denying Villesca’s motion to vacate restitution fines is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
KELETY, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12