People v. Weisner CA3

Filed 8/15/23 P. v. Weisner CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C095039
Plaintiff and Respondent, (Super. Ct. No.
LODCRFE20170002477)
v.
OPINION ON TRANSFER
FRANKIE JAMES WEISNER,
Defendant and Appellant.
Defendant Frankie James Weisner pleaded no contest to second degree robbery
(Pen. Code § 211) (statutory section citations that follow are to the Penal Code), and
grand theft (§ 487, subd. (c)), and admitted he personally used a firearm in the robbery
(§ 12022.5, subd. (a)). After we denied his first request to file his notice of appeal more
than sixty days after the original judgment, (People v. Weisner (C094382) (Order filed
7/16/2021), defendant brought a motion in the trial court to reduce his conviction on the
grand theft count to a misdemeanor pursuant to section 1170.18. The trial court denied
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that request. Defendant appealed from that order. His appointed counsel filed a brief
raising no issues and requesting that this court conduct a review of the record pursuant to
People v. Wende (1979) 25 Cal.3d 436. After we struck defendant’s brief as
improvidently filed, we dismissed the appeal as abandoned in our original opinion filed
April 27, 2022.
Defendant petitioned our Supreme Court for review and that court has directed us
to reconsider the matter in light of People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo).
After this case was transferred back to us from our Supreme Court, defendant filed
a supplemental brief raising three arguments going to the validity of his underlying
convictions. Because we conclude none of these arguments are cognizable on appeal, we
again affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
The amended complaint in this case charged defendant with two counts of
robbery, and criminal threats. (§§ 211, 12022.5, subd. (a), and 422, subd. (a).) It further
alleged defendant used a firearm in conjunction with each crime. (§ 12022.5, subd. (a).)
At the plea hearing, the second robbery count was amended to grand theft from a person.
(§ 487, subd. (c).)
The factual basis for the crimes was set forth in the preliminary hearing transcript.
The testimony at this hearing showed defendant was involved in two gas station armed
robberies where the robbers took the money from the cash register.
On November 17, 2017, defendant pleaded no contest to the robbery and the grand
theft charge, and admitted the gun enhancement. In exchange and on the same date, the
trial court sentenced defendant to a stipulated sentence of five years for the robbery, four
years for the gun enhancement, and eight months for the grand theft charge.
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In 2021, defendant filed a motion under section 1170.18 to have the grand theft
charge resentenced as a misdemeanor. The trial court denied that motion.
Defendant filed an appeal and we dismissed the appeal as abandoned. (People v.
Weisner (C095039) opn. filed Apr. 27, 2022, review granted July 13, 2022, S274617,
vacated and trans. for reconsideration and no longer citable May 31, 2023.) After our
Supreme Court vacated our opinion and transferred the case back to us, we sent
defendant a letter to defendant on June 5, 2023, notifying him: (1) counsel had filed a
brief indicating counsel had identified no arguable issues; (2) as a case arising from an
order denying postconviction relief, defendant was not entitled to counsel or to an
independent review of the record; and (3) in accordance with the procedures set forth in
Delgadillo, defendant had 30 days in which to file a supplemental brief raising any
argument he wanted this court to consider. Defendant filed a supplemental brief.
DISCUSSION
Because the instant appeal is from an order denying postconviction relief rather
than a first appeal of right from a criminal conviction, appellant is not entitled to our
independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
(See Delgadillo, supra, 14 Cal.5th 216, 221–222; People v. Serrano (2012)
211 Cal.App.4th 496, 503.) However, he is entitled to appellate consideration of the
contentions raised in his supplemental brief. (See Delgadillo, at p. 221; Serrano, at
p. 503.) In his brief, appellant argues that the trial court’s order was erroneous because:
(1) he was entitled to withdraw his plea because the trial court improperly sentenced
him contrary to his original plea agreement; (2) his counsel was ineffective and
concealed evidence; and (3) the prosecution refused to disclose exculpatory evidence in
the original proceedings.
These arguments are an unauthorized collateral attack on the underlying judgment.
Defendant does not provide any authority permitting such a challenge, and we find
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nothing in section 1170.18 that authorizes such a collateral attack. “[A] judgment
becomes final ‘ “where the judgment of conviction was rendered, the availability of
appeal exhausted, and the time for petition for certiorari ha[s] elapsed.” ’ [Citations.]”
(People v. Padilla (2022) 13 Cal.5th 152, 162.) Because defendant’s judgment has been
final since 2017 (Cal. Rules of Court, rule 8.308(a)), he is barred from raising issues
challenging that judgment at this late date. (People v. Torres (2020) 44 Cal.App.5th
1081, 1084 [trial court has no jurisdiction to modify or vacate sentence after judgment
has been rendered and execution has begun].) Because defendant did not present any
arguments that are cognizable in this appeal, we affirm the trial court’s order. (People v.
Davis (1996) 50 Cal.App.4th 168, 172 [“a trial court’s order/judgment is presumed to be
correct, error is never presumed, and the appealing party must affirmatively demonstrate
error on the face of the record”].)
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is affirmed.
HULL, Acting P. J.
We concur:
MAURO, J.
RENNER, J.
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