Opinion
C096286
03-09-2023
THE PEOPLE, Plaintiff and Respondent, v. VICTOR ANTHONY ORTEGA, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 08F07509
HULL, ACTING P. J.Defendant Victor Anthony Ortega appeals from the trial court's postconviction order dismissing his request for a second hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin), which the trial court found it lacked jurisdiction to address given defendant's pending appeal of the court's order entered at his first Franklin hearing. Defendant's appointed counsel filed an opening brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel informed defendant of his right to file a supplemental brief, and he has not filed one.
Although this is not defendant's first appeal as of right, given the notice provided to defendant and in the interest of judicial economy, we exercise our discretion to independently review the record. We find no arguable error that would result in a disposition more favorable to defendant and affirm.
FACTS AND HISTORY OF THE PROCEEDINGS
During a fight with the victim and another, defendant shot and killed the victim. (People v. Ortega (Apr. 10, 2012, C065027 [nonpub. opn.].) In 2010, a jury found defendant guilty of first degree murder and found true the allegation he personally and intentionally discharged a firearm causing death or injury. (Ibid.) He received 50 years to life in state prison, (ibid.) and we affirmed the judgment on appeal. (Ibid.)
We treated defense counsel's request for judicial notice of the record in case No. C065027 as a request to incorporate by reference and granted it as such.
Over the years, defendant has challenged the judgment, or various aspects of it, multiple times. (People v. Ortega (June 28, 2022, C095041 [nonpub. opn.].) Most recently, defendant appealed the trial court's order entered at his October 2021 Franklin hearing denying him the right to self-representation under Faretta v. California (1975) 422 U.S. 806. (Ibid.) He also argued on appeal that his trial counsel was ineffective for failing to include a psychological report in the Franklin packet counsel prepared for the hearing. (People v. Ortega, supra, C095041.) In June 2022, this court rejected both claims and affirmed the trial court's orders entered at the Franklin hearing. (Ibid.)
We treat defense counsel's request for judicial notice of the record in case No. C095041 as a request to incorporate by reference and grant it as such.
In April 2022, while defendant's appeal was pending in case No. C095041, defendant filed a request in the trial court for a second Franklin hearing, raising the same arguments that he raised in his pending appeal. The trial court dismissed defendant's request without ruling on the merits after finding that it lacked jurisdiction to consider the request given defendant's pending appeal. Defendant timely appealed the dismissal order.
DISCUSSION
In Wende, our Supreme Court held that "Courts of Appeal must conduct a review of the entire record whenever appointed counsel submits a brief on direct appeal which raises no specific issues or describes the appeal as frivolous." (People v. Delgadillo (2022) 14 Cal.5th 216, 221 (Delgadillo).) The Wende procedure applies "to the first appeal as of right and is compelled by the constitutional right to counsel under the Fourteenth Amendment of the United States Constitution." (Ibid.)
In Delgadillo, our Supreme Court held that Wende independent review is not constitutionally required in an appeal from a postconviction order denying a Penal Code section 1172.6 petition for resentencing because the denial does not implicate a defendant's constitutional right to counsel in a first appeal as of right. (Delgadillo, supra, 14 Cal.5th at pp. 222, 224-225.) The court further found that general due process principles regarding fundamental fairness did not compel a Wende independent review of the order. (Id. at pp. 229-232.) Nevertheless, in the interest of judicial economy, the court exercised its discretion to conduct its own independent review of the record given that the lower court's "suboptimal" notice to defendant referenced Wende but did not indicate that his appeal might be dismissed as abandoned if he did not file a supplemental brief. (Id. at pp. 222, 233.)
While Delgadillo addressed the application of Wende's review procedures in the specific context of a postconviction relief order under Penal Code section 1172.6 (Delgadillo, supra, 14 Cal.5th at p. 231, fn. 5 ["[i]n this case, we are not deciding Wende's application to other postconviction contexts, which may present different considerations"]), which is not the type of postconviction order at issue here, the same principles may nonetheless apply given that this is not defendant's first appeal as of right. However, we need not decide whether Delgadillo in fact governs review of the instant order because, like the Supreme Court, we shall exercise our discretion to conduct an independent review of the record given that the notice to defendant did not advise him that his appeal might be dismissed as abandoned if he did not file a supplemental brief.
Our review of the record reveals no arguable issues. It is well-settled that an appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 1044 [until issuance of the remittitur, a lower court lacks jurisdiction over the subject matter of the order or judgment on appeal]; Anderson v. Superior Court of Solano County (1967) 66 Cal.2d 863, 865 [same].)" 'Pending the appeal the superior court has no jurisdiction to vacate the judgment or make any order affecting it.'" (People v. Sonoqui (1934) 1 Cal.2d 364, 366.)
Here, the trial court properly recognized that at the time defendant filed his request for a second Franklin hearing, it lacked jurisdiction to address the request because it raised the same issues that were pending before this court in defendant's appeal of the order from his first Franklin hearing. (See e.g., People v. Ortega, supra, C095041.) The trial court therefore properly dismissed defendant's request for a second Franklin hearing without considering the merits of his request.
DISPOSITION
The trial court's order dismissing defendant's request for a second Franklin hearing is affirmed.
We concur: MAURO, J., RENNER, J.