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The People v. Damien Mendez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT


September 5, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAMIEN MENDEZ, DEFENDANT AND APPELLANT.

Trial Court: Santa Clara County Superior Court Trial Judge: Hon. Linda Condron Super. Ct. No. 211208)

The opinion of the court was delivered by: Elia, Acting P. J.

CERTIFIED FOR PUBLICATION

(Santa Clara County

Pursuant to a negotiated disposition, on February 26, 2008, defendant Damien Mendez pleaded no contest to conspiracy to commit a crime, specifically to sell methamphetamine (Pen. Code, § 182, subd. (a)(1), Health & Saf. Code, § 11379, count one), and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a), count two). Defendant admitted that he had a prior strike within the meaning of Penal Code sections 667, subdivisions (b)-(i) and 1170.12. In exchange for his no contest pleas defendant was promised a nine-year state prison sentence.

On September 18, 2008, the court sentenced defendant pursuant to the terms of the negotiated disposition.

Thereafter, on January 9, 2012, defendant filed a "motion" to reduce a restitution fine to the "minimum amount provided by law." Defendant argued that he did not have the ability to pay the fine.

On February 1, 2012, the superior court entered an order denying defendant's motion as untimely because the court lacked jurisdiction to resentence defendant more than three years after execution of sentence had begun.

Defendant filed a notice of appeal on February 17, 2012. In the notice of appeal defendant purports to appeal from the denial of his motion for modification of the amount of the restitution fine.

Defendant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.

Since the order is not appealable, we must dismiss the appeal. (People v. Turrin (2009) 176 Cal.App.4th 1200 (Turrin).)*fn1

Disposition

The within appeal, having been taken from an order that is not appealable, is dismissed.

WE CONCUR: MIHARA, J. MARQUEZ, J.

People v. Mendez

H037967


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