People v. Valles CA2/6 ( 2022 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, 2d Crim. No. B316399
(Super. Ct. No. 2013039508)
Plaintiff and Respondent, (Ventura County)
v.
OSCAR HERNANDEZ
VALLES,
Defendant and Appellant.
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
1 Statutory references are to the Penal Code.
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 6695881at 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 He argued the fine is no
longer valid pursuant to Assembly Bill No. 1869 (2019-2020 Reg.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
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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.
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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.