Opinion
H043599
05-11-2017
THE PEOPLE, Plaintiff and Respondent, v. HARIBERTO GUILLEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C157980)
In 2015, defendant Hariberto Guillen pleaded no contest to making a false statement for the purpose of obtaining workers' compensation benefits (Ins. Code, § 1871.4, subd. (a)). On March 3, 2016, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.
The record on appeal contains documents that also refer to defendant as "Heriberto Guillen."
At a restitution hearing held on May 10, 2016, the trial court ordered defendant to pay $92,146.42 to his employer Infinity Staffing, over his objections that: (1) the restitution sought by Infinity Staffing for medical, legal, and investigation fees related to his workers' compensation claim was "out of proportion" to the "one misrepresentation" he had made during the course of his workers' compensation claim, and (2) he should not have to pay restitution for the amounts Infinity Staffing paid to his workers' compensation attorney. Defendant filed a notice of appeal from the restitution order.
The minutes of the May 10, 2016 restitution hearing and the subsequent written order for restitution and abstract of judgment incorrectly indicate that the trial court ordered restitution in the amount of $92,146.92. --------
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 (Wende), stating the case and facts but raising no issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no response from defendant.
In People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), this court concluded that Wende review is limited to the defendant's first appeal of right from a criminal conviction (Serrano, supra, at p. 503). The instant appeal originates from a post-conviction proceeding and not a first appeal of right, and therefore defendant is not entitled to Wende review. Having received no appellate argument from defendant or appointed counsel, we must dismiss the appeal. (See Serrano, supra, at pp. 503-504.)
Appointed counsel has also filed a petition for writ of habeas corpus arguing that defendant was deprived of the effective assistance of counsel, which we ordered considered with the appeal. We dispose of the petition by separate order.
DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.