People v. Godinez CA2/1 ( 2020 )

Filed 8/27/20 P. v. Godinez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B303577
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA307364)
v.
RAFAEL ALEJANDRO GODINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Craig Richman, Judge. Appeal dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
In 2010, a jury convicted Rafael Alejandro Godinez of one
count of first degree murder with special circumstances (Pen. Code,
§§ 187, 190.2, subd. (a)(21))1 and four counts of attempted murder.
The jury also found true certain gang and gun enhancement
allegations. (§§ 186.22, subd. (b), 12022.53, subds. (b)–(d).) The
court sentenced Godinez to four consecutive terms of 25 years to
life plus life without the possibility of parole and ordered him to
pay a $200 restitution fine (former § 1202.4, subd. (b)) and $4,000
in victim restitution (§ 1202.4, subd. (f)).
Godinez appealed, and we affirmed the judgment in 2011.
(People v. Godinez (Nov. 30, 2011, B228241) [nonpub. opn.].)
In 2019, Godinez filed a motion in the superior court
challenging the victim restitution order based on People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas). In particular, Godinez
requested the appointment of counsel and a hearing at which
the People would be required to demonstrate his ability to pay
restitution. He also sought an order directing the Department of
Corrections and Rehabilitation not to deduct funds from his inmate
trust account.
On December 3, 2019, the trial court summarily denied the
motion. Godinez filed a timely notice of appeal.
We appointed appellate counsel for Godinez, who filed a brief
setting forth the pertinent procedural history and a summary of
relevant facts, and raising no issues on appeal. Counsel requests
that we independently review the record pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende). Counsel also notified Godinez
that he would be filing the brief, that Godinez was entitled to file
a supplemental brief with this court, and that counsel remained
available to brief any issues upon our request.
1 Subsequent statutory references are to the Penal Code.
2
On June 23, 2020, this court sent a letter to Godinez
informing him that he may, within 30 days, “submit by brief or
letter any grounds of appeal, contentions, or argument which
appellant wishes this court to consider.”
Godinez did not file a supplemental brief.
Because Godinez’s appeal is from an order denying post-
conviction relief, he is not entitled to our independent review
of the record pursuant to Wende. (See People v. Cole (2020)
__ Cal.App.5th __ [2020 WL 4435275] (Cole); People v. Serrano
(2012) 211 Cal.App.4th 496, 503 (Serrano).)2 As both his counsel
and this court informed him, however, Godinez is entitled to
file a supplemental brief. (See Cole, supra, __ Cal.App.5th __
[2020 WL 4435275 at p. *8]; cf. Conservatorship of Ben C. (2007)
40 Cal.4th 529, 544, fn. 6.) When, as here, the appellant does not
file a supplemental brief, we may deem the appeal to be abandoned
and dismiss the appeal. (See Cole, supra, __ Cal.App.5th __ [2020
WL 4435275 at p. *8]; Serrano, supra, 211 Cal.App.4th at p. 503.)
Even if we did not dismiss the appeal as abandoned under
Cole and Serrano, dismissal of the appeal is required because the
trial court did not have jurisdiction to grant the motion for the
reasons given in People v. Torres (2020) 44 Cal.App.5th 1081, 1088
2 Under Cole, in a criminal appeal from a post-conviction
order to which Wende does not apply, counsel who finds no arguable
issues is required to “file a brief with the Court of Appeal setting
forth (1) a brief statement of the pertinent procedural history of
the case, (2) a brief summary of the pertinent facts, (3) counsel’s
declaration that there are no reasonably arguable issues to present
on appeal, and (4) counsel’s affirmation that he or she remains
ready to brief any issues at the request of the Court of Appeal.”
(Cole, supra, __ Cal.App.5th __ [2020 WL 4435275 at p. *7].)
Regardless of whether Wende or Cole applies in this case, we
are satisfied that Godinez counsel has fully complied with his
responsibilities.
3
[trial court did not have jurisdiction to rule on Dueñas motion filed
as a post-appeal collateral attack on judgment].
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
4