Filed 4/19/22 P. v. Valles CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Oscar Hernandez Valles appeals from the trial court’s postjudgment order denying his petition to strike the restitution fine imposed as part of the judgment. We dismiss.

In 2017, a jury convicted Valles of second degree murder (Pen. Code,[1] §§ 187, subd. (a), 189), and found true an allegation that he used a deadly weapon to commit his crime (§ 12022, subd. (b)(1)). (People v. Valles (Dec. 20, 2018, B284705) [nonpub. opn.] [2018 WL 6695881 at p. *1].) The trial court sentenced him to 15 years to life in state prison plus one year. (Ibid.) The court ordered also ordered Valles to pay a $10,000 restitution fine. (§ 1202.4, subd. (b).) We affirmed the judgment on appeal. (People v. Valles, supra, B284705 [2018 WL 6695881 at p. *4.)

In 2021, Valles petitioned the trial court to strike the restitution fine from the judgment. He argued the fine is no longer valid pursuant to Assembly Bill No. 1869 (2019-2020 Reg. Sess.). The trial court summarily denied Valles’s petition.

We appointed counsel to represent Valles in this appeal. After examining the record, counsel filed an opening brief that raises no arguable issues. He also advised Valles that he could personally submit any issues or contentions he felt this court should consider. Valles then filed a supplemental brief in which he contends: (1) he did not know he had the right to object to the restitution fine, (2) his trial attorney did know that he could object but did not do so, and (3) his attorney did not advise him to request a hearing on his ability to pay the fine.

Because this appeal is from an order denying postconviction relief rather than an appeal from the judgment, Valles is not entitled to review pursuant to People v. Wende (1979) 25 Cal.3d 436. (People v. Serrano (2012) 211 Cal.App.4th 496, 501; People v. Cole (2020) 52 Cal.App.5th 1023, 1039, review granted Oct. 14, 2020, S264278.) He is, however, entitled to an evaluation of the contentions raised in his supplemental brief. (Cole, at p. 1040.)

But he is not entitled to relief. The contentions raised in Valles’s supplemental brief are not the same as those raised in his petition to strike the restitution fine. He cannot raise them for the first time on appeal. (In re Seaton (2004) 34 Cal.4th 193, 198.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J.

PERREN, J.

David M. Hirsch, Judge

Superior Court County of Ventura

______________________________

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

[1] Statutory references are to the Penal Code.