People v. Fritz CA3

Filed 3/26/24 P. v. Fritz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C098577

Plaintiff and Respondent, (Super. Ct. No. NCR92861)

v.

JAMAL DEWAYNE FRITZ,

Defendant and Appellant.

Defendant Jamal Dewayne Fritz appeals from a postconviction order denying his request for recall and resentencing pursuant to Penal Code1 section 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

1 Further undesignated statutory references are to the Penal Code.

1

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 eight- month 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