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Filed 8/15/23 P. v. Weisner CA 3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v. FRANKIE JAMES WEISNER,

Defendant and Appellant. C095039
(Super. Ct. No. LODCRFE20170002477)

OPINION ON TRANSFER

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) , d efendant brought a motion in the trial court to reduce his conviction on the grand theft count to a misdemeanor pursuant to section 1 170. 18

. T he trial court denied2

that request

. Defendant appeal ed 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 struc k 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 ligh t 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

.



### F ACTS AND 

### H ISTORY OF THE 

### P ROCEEDINGS

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
robb eries 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 admit ted the gun enhancement. In exchange and on the same date, the
trial court sentenced de fendant to a stipulated sentence of five year s for the robbery, four years for the gun enhancement, and eight months for the grand theft charge.3

In 2021, defendant filed a motion under section 1170.18 to have the grand theft charge resentenced as a misde meanor. 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, 20 2 2, 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.



### D ISCUSSION Because the instant appeal is from an order denying postconviction relief rather
than a fir st 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 49 6, 503.) Howev er, 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 w as 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 origi nal proceedings. These arguments are a n unauthorized collateral attack on the underlying judgment. Defendant does not provide any authority permitting such a challenge, and we find4

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 i ssues 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 pres ent 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 affi rmatively demonstrate error on the face of the record”].)



### D ISPOSITION

The trial court’s order denying defendant’s petition for resentencing is affirm ed.

HULL, Acting P. J.

We concur:

MAURO, J.

RENNER, J.