1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered 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

,

v.

ALEX DEON ROSS

,

Defendant and Appellant. No. A1 60167

( Solano County Super.

Ct. No. VC37766 )

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 co unsel 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 h as

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 in2

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

.

I n 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)

3 0 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 that3

authorized for conservatorship proceedings i n Ben C

. ( Serrano

, supra

,

211 Cal.App.4th at p. 503.) In Ben C

. , our Supreme Court determined that a

Wende review was not required for appeals taken from conservatorship

proceedings under the Lanterman

- Petris

- Short Act. ( Ben C.

, supra

,

40 Cal.4th at p. 544 .) Nonetheless, “ [i] f appoi nted counsel in a

conservatorship appeal finds no arguable issues, counsel need not and should

not file a motion to withdraw. Instead, counsel should (1) inform the court he

or she has found no arguable issues to be pursued on appeal; and (2) file a

brief setting out the applicable facts and the law. Such a brief will provide an

adequate basis for the court to dismiss the appeal on its own motion

, ” or

“[t]he court may, of course find it appropriate to retain the appeal.” ( Id. at

p. 544 & fn. 7

, fn. omitted .) Also, “[t] he conservatee is to be provided a copy of

the brief and informed of the right to file a supplemental brief. ” ( Id

. at

p. 544, fn. 6.)

Here, we decline to conduct a Wende review of the superior court’s

postconviction order denying R oss’s petition or to exercise our discretion to

retain the appeal under Serrano

. Although t he superior court did not explain

its denial, it was manifestly correct to deny the petition because it long ago

lost jurisdiction over a sentencing order that was issued and became final

some 22 years before in 1998 when Ross did not take an appeal from it

. (See,

e.g., People v. Smith (2015) 234 Cal.App.4th 1460, 1 465 [ “A judgment

becomes final when the availability of an appeal and the time for filing a

petition for certiorari have expired” ].) No purpose would be served by our

further review of the record. Further, as a practical matter, Ross has

received the benefit of the procedure authorized Serrano and in Ben C. Ross’s

counsel has informed th is cou rt that he found no arguable issues to be

pursued on appeal, filed a brief setting out the applicable facts and the law,4

provided Ross with a copy of the brief and informed Ross of his right to file a

supplemental brief.

DISPOSITION

For the foregoing reasons, we decline to conduct a Wende review or

retain this appeal under Serrano . The appeal is dismissed.5 STEWART, J.

We concur.

KLINE , P.J.

MILLER, J.

P eople v. Ross (A1 60167 )