People v. Ortega CA3

Filed 3/9/23 P. v. Ortega CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C096286

Plaintiff and Respondent, (Super. Ct. No. 08F07509)

v.

VICTOR ANTHONY ORTEGA,

Defendant and Appellant.

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)

1

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.].)1 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.) Over the years, defendant has challenged the judgment, or various aspects of it, multiple times. (People v. Ortega (June 28, 2022, C095041 [nonpub. opn.].)2 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.) 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