Opinion
A163183
01-11-2022
THE PEOPLE, Plaintiff and Respondent, v. RAY FERNANDO FRAIRE, Defendant and Appellant.
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR227943
POLLAK, P. J.
Ray Fernando Fraire, who is serving a prison sentence following his 2017 conviction of two felonies, appeals the denial of a postjudgment motion for relief from a $10,000 restitution fine (Pen. Code, § 1202.4) imposed as part of his sentence. His motion relies on retroactive changes to the law governing certain criminal-justice fees made by Assembly Bill No. 1869 (2019-2020 Reg. Sess.). (See § 1465.9, added by Stats. 2020, ch. 92, § 62.)
All undesignated statutory citations are to the Penal Code.
Fraire's appointed appellate counsel has filed a brief identifying no colorable issues and informing Fraire of his right to file a supplemental brief, which he did not do. Appointed counsel's brief asserts that this court has a duty to review the record independently to determine if it presents a colorable issue. (People v. Wende (1979) 25 Cal.3d 436, 440-442 (Wende).) But because this appeal is from an order denying a motion for postconviction relief, and not 1 from a judgment of conviction, the rule of Wende does not apply, and this court has no such duty. (People v. Freeman (2021) 61 Cal.App.5th 126, 132-133.) We will dismiss Fraire's appeal as abandoned, although we also note that the one argument raised in his notice of appeal lacks merit.
Factual and Procedural History
In May 2017, pursuant to a plea agreement, Fraire pled no contest to two charges of second degree robbery (§ 211) and, as to each count, admitted that he personally used a firearm (§ 12022.53, subd. (b)). The trial court accepted his plea and, on June 27, 2017, imposed a prison term of 16 years and four months, a $10,000 restitution fine (§ 1202.4, subd. (b)), and a suspended $10,000 parole-revocation fine (§ 1202.45). The court did not impose any other fines, fees, or assessments, though it did reserve jurisdiction over the issue of victim restitution. Fraire did not appeal.
The prison term consists of two years on one robbery count, one year on the other, 10 years on one section 12022.53 enhancement, and three years four months on the other, with credit for time served of 1, 626 days.
In June 2021, Fraire filed a document titled "Sentence Modification Restitution Fines/Fees Pursuant to Retroactive Changes in Law A.B. 1869 and S.B. 824." It includes a mixture of typed and handwritten text suggesting that Fraire adapted a document from another case. The gist of the argument is that the restitution fine must be stayed because the court violated Fraire's constitutional rights to due process, equal protection, and 2 freedom from cruel and unusual punishment by imposing it without finding that he had the ability to pay. (See People v. Dueñas (2019) 30 Cal.App.5th 1157.)
Senate Bill No. 824 (2010-2020 Reg. Sess.) was a parallel measure identical to Assembly Bill No. 1869 that was not enacted.
For example, the typewritten argument section states that "the court imposed a restitution fine of more than $10,000 . . . and an additional $8,000 in victim restitution pursuant to [section] 1202.4(f)(b)," although the court in fact imposed a restitution fine of exactly $10,000 and reserved jurisdiction over victim restitution.
The trial court summarily denied Fraire's "ex parte motion" without receiving opposition or holding a hearing. Fraire timely filed a notice of appeal, which points out that "his motion was denied without [any] explanation or case cit[ations] and the court did seem to acknowledge that A.B. 1869 is a new law and retroactive yet did not explain how petitioner doesn't qualify for its application." The notice of appeal adds that "although petitioner took a plea bargain that is not a justification to deprive him of new laws' benefits that are retroactive."
Discussion
Wende holds that, on appeal from a criminal conviction, the Constitution requires a Court of Appeal "to conduct a review of the entire record whenever appointed counsel submits a brief which raises no specific issues or describes the appeal as frivolous." (Wende, supra, 25 Cal.3d at p. 441.) This rule applies "[i]n an indigent criminal defendant's first appeal as a matter of right." (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535.) As this court recently noted, while the California Supreme Court "has not addressed whether Wende applies to criminal appeals other than a direct appeal from the judgment of conviction," published Court of Appeal decisions "uniformly agree that Wende/Anders [v. California (1967) 386 U.S. 738] 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." (People v. Freeman, supra, 61 Cal.App.5th at pp. 132-133.) Our opinion cited People v. Serrano (2012) 211 Cal.App.4th 496, in which the Sixth Appellate District 3 "refused to conduct Wende review of an order denying a motion to vacate a conviction under . . . section 1016.5," reasoning that "because a criminal defendant is entitled to Wende review only in 'a first appeal of right' from a criminal conviction, he or she is not entitled to such review 'in subsequent appeals, including collateral attacks on the judgment.'" (People v. Freeman, supra, at p. 133, quoting Serrano, supra, at pp. 499, 503.) "In such cases, . . . the appeal must be dismissed as abandoned if neither the defendant nor appointed counsel raises any claims of error." (Freeman, supra, at p. 133.)
Although Fraire's pleading referred to other issues in passing, both its caption and his notice of appeal identify it as a motion seeking relief from the $10,000 restitution fine pursuant to Assembly Bill No. 1869, which enacted section 1465.9, subdivision (a). That statute provides that "[t]he balance of any court-imposed costs pursuant to [13 specified Penal Code sections], as 4 those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (§ 1465.9, subd. (a), added by Stats. 2020, ch. 92, eff. Sept. 18, 2020, operative July 1, 2021.) A motion pursuant to section 1465.9 constitutes a collateral attack on the judgment of conviction. An appeal from an order denying such a postconviction motion, therefore, does not trigger a right under Wende to independent review of the record by this court. Because Fraire's appointed counsel filed a brief raising no claim of error, and Fraire did not exercise his right to file a supplemental brief, we may treat the appeal as abandoned. (People v. Freeman, supra, 61 Cal.App.5th at p. 133.)
Another isolated sentence in the document states that Fraire "asked trial counsel to challenge his restitution prior to sentencing as well [as] counsel on appeal yet neither did and [they] were [thus] ineffective." A single sentence in the pleading requested "a S.B. 620 hearing as A.B. 1618 allows petitioner the benefit of new laws [enacted] after conviction." Senate Bill No. 620 (2017-2018 Reg. Sess.) amended the firearm-enhancement statutes (§ 12022.5, subd. (c); § 12022.53, subd. (h)) by giving courts new discretion to strike some enhancements that, like those included in Fraire's sentence, had once been mandatory. (People v. Fuimaono (2019) 32 Cal.App.5th 132, 134, citing Stats. 2017, ch. 682, §§ 1, 2.) Senate Bill No. 620 does not apply to sentences, like Fraire's, that became final before it took effect on January 1, 2018. (Fuimaono, supra, at p. 135.) Assembly Bill No. 1618 (2019-2020 Reg. Sess.) enacted section 1016.8, stating that" '[a] provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments . . . that may retroactively apply after the date of the plea is void as against public policy.'" (See People v. Barton (2020) 52 Cal.App.5th 1145, 1149.) Section 1016.8 is irrelevant to this case, because Fraire is not barred from seeking relief pursuant to Senate Bill No. 620 by any provision in his plea bargain but by the fact that his judgment was final on appeal when Senate Bill No. 620 took effect.
Were we to consider the argument raised in Fraire's notice of appeal as if he had filed a supplemental brief making that argument, we would find it to be meritless. Fraire observed that Assembly Bill No. 1869 "is a new law and retroactive yet [the court] did not explain how petitioner doesn't qualify for its application." The explanation is simply that the only financial obligations imposed on Fraire by his judgment of conviction are a restitution fine pursuant to section 1202.4, subdivision (b), and a suspended parole-revocation fine pursuant to section 1202.45, and neither section 1202.4 nor section 1202.45 is among the 13 enumerated sections of the Penal Code affected by Assembly Bill No. 1869. (See § 1465.9, subd. (a).) 5
We note, however, that in September 2021, while this appeal was pending, the Legislature enacted Assembly Bill No. 177, which amended section 1465.9 by adding section 1202.4 to the provisions to which the debt cancellation applies. (§ 1465.9, subd. (b), as amended by Stats. 2021, ch. 257, § 35.) However, Assembly Bill No. 177 both repeals and re-enacts section 1202.4, effective January 1, 2022, with only a single change-the elimination of former subdivision (l), which authorized an administrative fee to cover the costs of collecting a restitution fine. We therefore construe the latest amendment to render unenforceable and uncollectible only such an administrative fee. Since no such fee was included in Fraire's sentence, he would similarly not be entitled to any relief under this latest amendment.
Disposition
The appeal is dismissed as abandoned.
WE CONCUR: STREETER, J. BROWN, J. 6