Filed 7/30/13 P. v. Tevaga CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039008
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 203458)

         v.

DANNY TOATELE TEVAGA,

         Defendant and Appellant.



         Danny Toatele Tevaga was sentenced to 25 years to life on March 9, 2000. The
court imposed a $10,000 restitution fine as part of that sentence. On October 2, 2012,
Tevaga filed a motion for modification of his restitution fine. He argued the trial court
erred in imposing the maximum restitution fine without considering his ability to pay.
On October 12, 2012, the superior court denied the motion on the basis that a defendant’s
ability to pay the fine is not a relevant consideration in setting the amount of the fine and
that defendant waived the issue by failing to object when the fine was imposed.
Defendant filed a timely notice of appeal from this order.
         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), but with a recognition of the limitation to Wende review set forth in People v.
Serrano (2012) 211 Cal.App.4th 496 (Serrano).) The opening brief states the case and
the facts but raises no specific issues. Wende review is only available in a first appeal of
right. (Serrano, supra, 211 Cal.App.4th at p. 501.) Because defendant’s appeal is from
an order after judgment seeking to modify his sentence, and not a first appeal of right, he
is not entitled to Wende review. (Ibid.) Therefore, we will proceed with this appeal
pursuant to the standard we enunciated in Serrano.
       Pursuant to Serrano, on January 25, 2013, we notified defendant of his right to
submit written argument in his own behalf within 30 days. On February 11, 2013, we
received a letter from defendant. In his letter defendant contends that he received
ineffective assistance of counsel at trial because counsel failed to object to the restitution
fine and failed to advise the defendant that he could challenge the proposed restitution
amount based on an inability to pay. Nothing in defendant’s letter suggests that there is
an arguable issue on appeal from the order denying his motion for modification of
sentence. Therefore, we decline to retain the appeal.
       The appellant having failed to raise any arguable issue on appeal, we dismiss the
appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)




                                              2
                                DISPOSITION
     The appeal is dismissed.




                                        _________________________
                                        MÁRQUEZ, J.

WE CONCUR:




_________________________
RUSHING, P.J.




_________________________
PREMO, J.




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