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Filed 3/26/24 P. v. Fritz CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMAL DEWAYNE FRITZ,

Defendant and Appellant.

C098577

(Super. Ct. No. NCR92861)

Defendant Jamal Dewayne Fritz appeals from a postconviction order denying his 

request for recall and resentencing pursuant to Penal Code1section 1172.75. Appointed 

counsel for defendant asked this court to independently review the record pursuant to 

People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable issues 

on appeal. Defendant has filed a supplemental brief, which we understand to challenge 

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 Further undesignated statutory references are to the Penal Code.
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the propriety of the trial court’s decision that his prior prison term enhancement was 

ineligible for recall. We have considered defendant’s arguments and will affirm the trial 

court’s order. (See, e.g., People v. Delgadillo (2022) 14 Cal.5th 216, 231-232

(Delgadillo).)

BACKGROUND

In February 2000, defendant pleaded guilty to unlawful sexual intercourse 

(§ 261.5). In March 2001, defendant was convicted of attempted forcible rape 

(§§ 664/261, subd. (a)(2)), forcible oral copulation (former § 288a, subd. (c)(2)), and 

forcible sodomy (§ 286, subd. (c)(2)). Defendant was sentenced to serve a 15-year eightmonth prison sentence for these convictions. He was paroled in May 2014. 

Thereafter, “[i]n 2015, defendant was convicted by court trial of annoying or 

molesting a child under 18 with a prior sex crime conviction (count I, § 647.6, 

subd. (c)(2)), unlawful sexual intercourse with a minor (count II, § 261.5, subd. (c)), and 

possession of obscene matter (count III, § 311.2, subd. (a)). The trial court also found 

true three prior strikes based on defendant’s 2001 felony convictions for attempted 

forcible rape, forcible oral copulation, and sodomy by use of force. (§§ 667.5, subd. (b), 

1170.12.) Defendant served the terms for the 2001 convictions consecutively.” (People 

v. Fritz (July 20, 2016, C079871) [nonpub. opn.] (Fritz), fn. omitted].)

“The trial court sentenced defendant as follows: 25 years to life plus three years 

for the three prior prison terms on count I, concurrent 25 years to life plus three years for 

the three prior prison terms on count II, and a concurrent six months on count III.” (Fritz, 

supra, C079871.) 

Defendant appealed and this court agreed that two of the three prior prison term 

enhancements associated with defendant’s sentence had to be set aside. Specifically, we 

explained: “[b]ecause defendant served consecutive terms for the 2001 convictions, the 

terms served for these offenses were not ‘separate’ terms within the meaning of 

section 667.5, subdivision (b). Accordingly, there was sufficient evidence to establish the 
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necessary elements for only one of the section 667.5, subdivision (b) allegations, and it 

was error to find true all three such allegations. Therefore, the trial court’s true finding 

on two of the section 667.5, subdivision (b) allegations must be set aside.” (Fritz, supra, 

C079871.)

We “modified [the judgment] to vacate the trial court’s true finding on two of the 

section 667.5, subdivision (b) allegations and to strike the two additional one-year 

sentences on each felony count (counts I and II).” (Fritz, supra, C079871.) We 

otherwise affirmed the judgment. (Ibid.)

Thereafter, on October 31, 2022, defendant filed an in propria persona petition for 

recall and resentencing pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.) (Stats. 

2021, ch. 728, § 3), codified as section 1172.75.2 Counsel for defendant was appointed,

and defendant filed a brief arguing defendant should be deemed eligible for relief under 

section 1172.75 because he “was never advised or informed that these registerable 

convictions would be classified as anything other than serious felonies.” 

The People opposed defendant’s recall request arguing the amendments to 

section 667.5, subdivision (b) did not apply to him because his prior convictions were for 

sexually violent offenses. In reply, defendant argued that because the remittitur did not 

identify which prison prior enhancements were stricken and because the attempted 

forcible rape conviction could not now support the enhancement, there was a possibility 

that defendant was serving an unauthorized sentence requiring he be granted recall and a 

full resentencing under the new ameliorative rules then in effect. The People’s surreply 

conceded that only two of defendant’s three prior convictions qualified as section 667.5 

enhancements under current law; however, it was unnecessary to identify which of the 

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 This statute was formerly section 1171.1, but it was renumbered to section 1172.75

without substantive change. (Assem. Bill No. 200 (2021-2022 Reg. Sess.) (Stats. 2022, 

ch. 58, § 12).)
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enhancements had been stricken “because the defendant served one single prison term for 

at least one sexually violent offense,” which was sufficient to uphold the one remaining 

section 667.5, subdivision (b) enhancement. 

At the recall and resentencing hearing on May 16, 2023, defendant’s attorney 

reiterated that defendant should be granted a full resentencing hearing because the record 

did not disclose which of the prior prison allegations had been vacated. He contended

that the trial court should grant defendant the most favorable interpretation and find his 

prior conviction did not comply with the new requirements thus entitling him to recall 

and resentencing. 

The trial court disagreed, concluding that this court’s previous appellate decision

had determined defendant’s prior prison term for three convictions supported only one 

section 667.5, subdivision (b) enhancement, and thus, struck the other two enhancements 

and associated two years. Therefore, because defendant served a prior prison term and 

two of the convictions associated with that term were still eligible as sexually violent 

offenses under section 667.5, subdivision (b), defendant was ineligible for recall and 

resentencing. Defendant timely appealed. 

DISCUSSION

Defendant’s appointed counsel has asked this court to conduct an independent 

review of the record to determine whether there are any arguable issues on appeal. 

(People v. Wende, supra, 25 Cal.3d at p. 436.) Defendant was advised by counsel and 

this court of his right to file a supplemental brief within 30 days from the date the 

opening brief was filed. Defendant filed a supplemental brief. 

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.” (Delgadillo, supra, 14 

Cal.5th at p. 221.) The Wende procedure applies “to the first appeal as of right and is 
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compelled by the constitutional right to counsel under the Fourteenth Amendment of the 

United States Constitution.” (Ibid.)

In Delgadillo, our Supreme Court considered whether the Wende process applies 

to a trial court’s order denying a petition for postconviction relief under section 1172.6 

and concluded it is not required. (Delgadillo, supra, 14 Cal.5th at pp. 221-222.) The 

Supreme Court laid out applicable procedures for such cases, saying, where a defendant 

has filed a supplemental brief, “the Court of Appeal is required to evaluate the specific

arguments presented in that brief and to issue a written opinion,” but the filing of a 

supplemental brief alone does not compel the court to independently review the entire 

record to identify unraised issues, although it may exercise its discretion to do so. (Id. at 

p. 232.)

Delgadillo addressed the application of Wende’s review procedures in the specific 

context of a postconviction relief order under 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”].) Although 

this is not the type of postconviction order at issue here, the same principles may apply,

given that this was not defendant’s first appeal of right. Following Delgadillo’s

guidance, we shall consider the arguments defendant raises in his supplemental brief.

Defendant contends the trial court erred in denying his resentencing petition 

because he had been “only charged with 1 violent sexual offense [in] Feb[ruary] 2001 

and the Court of Appeals [sic] struck 2 prison prior offenses . . . .” He continues that his 

own appellate counsel was unsure as to the legal effect of the court’s striking the 

offenses. Specifically, he posits it is not clear whether the “2001 violent” was struck, the 

“2000 sexual case” was struck, or both. Finally, defendant argues that section “1385 (f)-

(h)” applies to him, and he is entitled to “Equal and opportunity” under “People vs. 

Monroe.” We understand these arguments to challenge the substance of the trial court’s 
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ruling, which we will review. Having done so, we concur with the trial court’s analysis 

that defendant is ineligible for relief under section 1172.75. 

At the outset, we note defendant’s 2000 conviction for unlawful sexual intercourse 

was never applied to support a prior prison enhancement; rather, it was defendant’s 

prison term associated with the 2001 felony convictions for attempted forcible rape, 

forcible oral copulation, and sodomy by use of force that were used for the prior prison 

term enhancements. (Fritz, supra, C079871.) 

Further, this court did not strike two of defendant’s three prior prison term 

enhancements because defendant did not commit the crimes underlying those

enhancements. Rather, as we previously explained, “Section 667.5, subdivision (b) 

imposes an additional one year penalty ‘for each prior separate prison term . . . imposed 

. . . for any felony.’ A prior separate prison term is ‘a continuous completed period of 

prison incarceration imposed for the particular offense alone or in combination with 

concurrent or consecutive sentences for other crimes . . . .’ (§ 667.5, subd. (g).) ‘[T]his 

statutory language means that only one enhancement is proper where concurrent 

sentences have been imposed in two or more prior felony cases.’ (People v. Jones (1998) 

63 Cal.App.4th 744, 747; see also People v. Carr (1988) 204 Cal.App.3d 774, 779 [‘a 

defendant serves a single term in state prison notwithstanding that the term consists of 

several separate sentences attributable to different convictions’].)” (Fritz, supra, 

C079871.)

Consequently, when this court struck two of the three prior prison term 

enhancements under section 667.5, subdivision (b), we were not determining that any of 

the three convictions did not support the enhancement or should be stricken. Rather, we 

decided that because the three convictions resulted in only one continuous prior prison 

term, they could support only one prior prison term enhancement. (Fritz, supra, 

C079871.) 
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Moreover, defendant’s convictions for forcible oral copulation (former § 288a, 

subd. (c)(2) and forcible sodomy (§ 286, subd. (c)(2)) are sexually violent offenses (Welf. 

& Inst. Code, § 6600, subd. (b)) upon which a prior prison term enhancement may still be 

based (§ 667.5, subd. (b)). As a result, defendant’s sentence was not subject to recall 

under 1172.75. (§ 1172.75, subds. (a), (c).) Nothing in People v. Monroe (2022) 85 

Cal.App.5th 393, which concerns the breadth of resentencing authority after recall of a 

defendant’s sentence (id. at pp. 399-402) suggests differently. Since defendant is not 

entitled to have his sentence recalled, he is not entitled to receive a full resentencing to 

which the amendments of section 1385 might apply.

DISPOSITION

The judgment is affirmed. 

 /s/

Wiseman J.*

We concur:

 /s/

Earl, P. J.

 /s/

Hull, J.

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.