People v. Weisner CA3

Filed 8/15/23 P. v. Weisner CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095039

Plaintiff and Respondent, (Super. Ct. No. LODCRFE20170002477) v. OPINION ON TRANSFER FRANKIE JAMES WEISNER,

Defendant and Appellant.

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), defendant brought a motion in the trial court to reduce his conviction on the grand theft count to a misdemeanor pursuant to section 1170.18. The trial court denied

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that request. Defendant appealed 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 struck 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 light 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.

FACTS AND HISTORY OF THE PROCEEDINGS 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 robberies 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 admitted the gun enhancement. In exchange and on the same date, the trial court sentenced defendant to a stipulated sentence of five years for the robbery, four years for the gun enhancement, and eight months for the grand theft charge.