P. v. Ortiz
Filed 11/13/08 P. v. Ortiz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JOSE BALTAZAR ORTIZ, Defendant and Appellant. | H031910 (San Benito County Super. Ct. No. CR-00-38340) |
Defendant Jose Baltazar Ortiz shot Jeana Jolivette five times, wrapped her in a carpet and set it on fire. He then disposed of her burned remains in a rural dumpsite.[1] In June 2002, defendant was convicted by jury of the first degree murder (Pen. Code 187, subd. (a)). The special allegations that he had personally and intentionally discharged a firearm which proximately caused Jolivettes death and personally used a firearm were found to be true. (Pen. Code, 12022.53, subd. (d), 12022.5, subd. (a).) Defendant was sentenced to 25 to life for the murder and 25 to life on the section 12022.53, subdivision (d) enhancement, to be served consecutively. The other enhancement was stayed pursuant to Penal Code section 654. Defendant was also ordered to pay a restitution fund fine of $10,000 pursuant to Penal Code section 1202.4, subdivision (b). An additional restitution fine in the same amount was imposed but suspended unless the defendants parole was revoked pursuant to Penal Code section 1202.45. The court also imposed additional restitution in the amount of $15, 307.57 pursuant to Penal Code section 1202.4, subdivision (f). This court affirmed the judgment in People v. Ortiz (Jan. 30, 2004, H024675) [nonpub.opn.].
Subsequently, the defendant filed a motion in the trial court to vacate the restitution fine. Finding the motion without merit, the trial court summarily denied the motion and this appeal ensued.
On appeal, we appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 which stated the case and the facts but raised no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. We received a supplemental brief from defendant arguing that the restitution fine imposed pursuant to Penal Code section 1202.45 must be stricken because there is no indication that defendant will ever be paroled. Defendant also argues that the total parole fines imposed pursuant to Penal Code sections 1202.4, subdivision (b) and 1202.45 exceed the allowable statutory maximum of $10,000.
Defendants arguments are without merit. Penal Code section 1202.45 mandates: In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. . . . (Emphasis added.) Whether or not defendant will one day be paroled is not the issue. The relevant question is whether his sentence includes a period of parole, and here it clearly does. Defendants sentence was 50 years to life with the possibility of parole. Therefore, the court did not err in imposing a parole revocation fine pursuant to Penal Code section 1202.45.
Defendant also contends that the combined fines under Penal Code sections 1202.4, subdivision (b) and 1202.45 exceed the maximum of $10,000 and therefore are unlawful. Defendant has misread these sections. Penal Code section 1202.45 states, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount . . . . (Emphasis added.) Penal Code section 1202.4, subdivision (b)(1) sets that maximum amount at $10,000. Therefore, each section permits the imposition of a $10,000 fine, not $10,000 combined as defendant argues. The case cited by defendant in support of his proposition, People v. Jones (2007) 157 Cal.App.4th 580, review was granted January 14, 2008, S159867, has been depublished pending review by the Supreme Court on an unrelated issue. Pursuant to our obligation as set forth in People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal 4th 106, to independently review the record, we have reviewed the entire record, we have taken judicial notice of the record, briefs and opinion in defendants prior appeal, and we have reviewed and considered the arguments raised by defendant in his supplemental brief. Nevertheless we conclude that there is no arguable issue on appeal.
Disposition
The judgment is affirmed.
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rushing, P.J.
WE CONCUR:
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PREMO, J.
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ELIA, J.
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[1] On this courts own motion, we have taken judicial notice of the record in People v. Ortiz (Jan. 30, 2004, H024675) [nonpub. opn.], defendants original appeal from his conviction. All facts relating to the underlying crime herein are derived from that record.
