People v. Ortega
| Decision Date | 28 June 2022 |
| Docket Number | C095041 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. VICTOR ANTHONY ORTEGA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436.
In 2010, a jury found defendant Victor Anthony Ortega guilty of first degree murder and found true the allegation he personally and intentionally discharged a firearm causing death or injury. Sentenced to 50 years to life in prison defendant appeals the trial court's order entered at his October 2021 hearing, held pursuant to People v Franklin (2016) 63 Cal.4th 261, denying him the right to self-representation under Faretta v. California (1975) 422 U.S. 806. He also purports to appeal the denial of his separate July 2021 motion to modify his restitution fine.
Appointed counsel for defendant filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. Defendant filed two supplemental briefs, arguing the trial court erred in declining to allow him to represent himself at the Franklin hearing and also erred in not "resentencing" him at that hearing, adding that his counsel was ineffective; he also raises multiple arguments concerning his original murder conviction as well as his Penal Code[1] section 1170.95 petition, which was previously denied by the trial court and is now pending in our Supreme Court.
We shall affirm the trial court's orders entered at the Franklin hearing.
We shall dismiss the remainder of defendant's claims, for reasons we explain post.
During a fight with the victim and another, defendant shot and killed the victim. (People v. Ortega (Apr. 10, 2012 C065027 [nonpub. opn.].)[2] In April 2012, we affirmed the judgment on appeal. (Ortega, supra, C065027.) That judgment became final later in 2012, after the denial of defendant's petition for review to the Supreme Court. Since that time, defendant has filed six appeals and one petition for habeas corpus purporting to challenge various aspects of the judgment in this case.
Of those, one is relevant here. In case No. C092671, defendant appealed the trial court's September 1, 2020, denial of his petition seeking to be resentenced pursuant to section 1170.95. After his counsel filed a Wende brief, this court dismissed that case as abandoned. Defendant filed a petition for review in the Supreme Court, which was granted on May 12, 2021. The Supreme Court deferred consideration of the matter pending the disposition of another case; defendant's appeal from that postjudgment order remains pending in the Supreme Court.
On July 30, 2021, defendant filed a new motion in the trial court challenging his restitution fine and other fees not relevant here. The trial court dismissed the motion as to the restitution fine, recognizing it lacked jurisdiction to modify that fine. Defendant purported to appeal that dismissal.
On a parallel track, in August 2021, defendant submitted a packet of information to the trial court pursuant to Franklin and section 3051 for the parole board to consider at a future parole hearing. The trial court held the Franklin hearing on October 8, 2021; defendant was personally present. At that hearing, the court stated: The prosecution echoed the court's sentiments and agreed to everything that was submitted. The trial court ordered the packet be forwarded to the Department of Corrections and Rehabilitation for future consideration.
As the hearing was ending, defense counsel stated, "Your honor, Mr. Ortega is requesting to proceed pro per." The trial court responded, Defendant filed a timely notice of appeal from that postjudgment order, and raises several claims related thereto in his supplemental filings.
Wende Review
We consider both appeals together in this case.
Counsel filed an opening brief setting forth the facts and procedural history of the case and requested this court review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He has filed two briefs we will discuss below.
Our Supreme Court has not yet addressed whether the protections afforded by Wende and Anders v. California (1967) 386 U.S. 738 apply to an appeal from postjudgment orders. (People v. Serrano (2012) 211 Cal.App.4th 496, 503; People v. Freeman (2021) 61 Cal.App.5th 126, 132-133.) "Published decisions by our courts of appeal uniformly agree that Wende/Anders does not require independent review of appeals from postjudgment orders in criminal proceedings, though they are split on whether in certain contexts a court should nonetheless exercise discretion independently to review a summary denial." (Freeman, at p. 133.)
Although we agree that Wende appeals from postjudgment orders should routinely be dismissed as abandoned if defendant does not file a supplemental brief, where defendant has submitted a supplemental brief, the appeal has not been abandoned. Specific issues have been raised, and those issues are properly decided. (See People v. Freeman supra, 61 Cal.App.5th at p. 134.) We acknowledge this view has been criticized (see People v. Scott (2020) 58 Cal.App.5th 1127, 1132-1135, review granted Mar. 17, 2021, S266853), but note that even the majority in the Scott case opined an appellate court should address those contentions where the defendant filed a timely supplemental brief. (Id. at p. 1134.) We understand our dissenting colleague disagrees with this view, see People v. Weisner (2022) 77 Cal.App.5th 1072, 1077, but respectfully submit that where, as here, appointed counsel explicitly advises a defendant that they are now on their own and must raise their own points, if any, on appeal, we should consider those issues raised, even though defendant remains technically represented by counsel. For this reason and those set forth in the dissenting opinion in Weisner, at page 1079, we shall consider defendant's arguments here.
Defendant argues the trial court erred in not allowing him to represent himself at the Franklin hearing. He adds several claims regarding his right to resentencing at the Franklin hearing or upon the hearing of his motion to modify his fine and fees, and alternatively argues his counsel was ineffective for not asking the prosecutor to recommend resentencing or directly asking the trial court for resentencing at the Franklin hearing.[3]
Defendant also raises claims about his original trial; he argues that he is entitled to a new trial, that the jury should have been apprised of his mental health condition, and that the contents of his Franklin packet demonstrate his trial counsel and original appellate counsel provided him with ineffective assistance. In his second filing, he appears to claim the trial court erred in denying his subsequent section 1170.95 petition and mentions the court's denial of his motions to strike restitution, to strike his gun enhancement, to disqualify the trial judge, and to suppress a pretrial identification at trial.
Defendant thus asks us to review three types of claims. First, he requests us to rule on issues related to his initial trial including his initial sentencing and desire for a resentencing hearing unrelated to section 1170.95. But his judgment is long since final.
Second, defendant seeks review of the trial court's denial of his section 1170.95 petition; this postjudgment order is currently before the Supreme Court and we do not have jurisdiction to address any claims challenging any aspects of the order.
Third, defendant raises issues regarding his Franklin hearing. We conclude the orders made at the Franklin hearing are the only orders properly before us, and shall address defendant's claims and affirm the challenged orders.
Turning first to the claims related to his original trial, defendant raises challenges based on evidence not presented to the jury, the denial of trial motions, his trial and appellate counsels' effectiveness, and sentencing issues. As we explained ante, defendant's judgment after trial was affirmed on appeal and became final in 2012. "[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.] Once that process ends, the judgment may be challenged on collateral review. Merely filing a collateral attack does not make the judgment nonfinal." (People v. Padilla (2022) 13 Cal.5th 152, 162.)
Defendant's many claims of error related to his original trial are long final, and are not cognizable on this appeal. These claims must be dismissed. This is also the situation with defendant's challenges to his current sentence, the restitution ordered, the gun enhancement, and his request for resentencing under section 1170, subdivision (d). The trial court had no jurisdiction to address these claims, and neither do we.
We next turn to defendant's claim pertaining to his section 1170.95 petition, which is not cognizable here because of defendant...
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