Filed 9/13/13 P. v. Fraher CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058260

v.                                                                       (Super.Ct.No. FVI012407)

CECILIA AGNES FRAHER,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Jamie Popper, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
                                     INTRODUCTION

       On April 25, 2001, an information charged defendant and appellant Cecilia Agnes

Fraher with three counts of murder under Penal Code section 187, subdivision (a)1

(counts 1-3), and three counts of gross vehicular manslaughter while intoxicated under

section 191.5, subdivision (a) (counts 4-6). The information also alleged a prior Vehicle

Code section 23152, subdivision (a), conviction within the meaning of section 191.5,

subdivision (d) (counts 4-6); however, according to the September 27, 2002, probation

officer’s report, on motion of the People, the trial court struck the prior allegation on

August 14, 2002.

       On August 30, 2002, a jury convicted defendant of all charges. On March 28,

2003, the trial court sentenced defendant to a total indeterminate term of 45 years to life

in state prison.

       On December 24, 2012, defendant filed a petition to modify her sentence under

the Three Strikes Reform Act of 2012. (§ 1170.126.) On January 14, 2013, the trial

court denied the motion without appearances; it found that section 1170.126 did not apply

to defendant.

       On March 1, 2013, defendant filed a timely notice of appeal.




       1   All statutory references are to the Penal Code unless otherwise specified.


                                              2
                               STATEMENT OF FACTS

       The facts of the underlying offenses are not relevant to this appeal. In sum,

defendant was involved in a traffic collision, which caused the deaths of three people.

                                       ANALYSIS

       After defendant appealed, and upon her request, this court appointed counsel to

represent her. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case, a summary of the facts and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, and she

has done so. On June 17, 2013, defendant submitted a five-page typewritten brief with

three exhibits. In her supplemental brief, defendant discusses: (1) the facts of the

underlying case regarding her culpability in causing the accident (i.e., she was on

numerous medications because of her heart surgery in 1998); (2) the jury instructions that

were given regarding her culpability in the underlying trial; and (3) ineffective assistance

of counsel and prosecutorial misconduct in the underlying case.

       Notwithstanding defendant’s assertions, this appeal is from the trial court’s denial

of her motion for modification of sentence. This is not an appeal from the underlying

convictions; those appeals have already been exhausted. (See People v. Fraher (May 21,

2004, E033506) [nonpub. opn.].) Even defendant admits in her supplemental brief that

her “conviction withstood direct appeal and habeas in both state and federal courts.”




                                             3
          On December 24, 2012, almost 10 years after defendant was sentenced, she filed a

petition for modification of her sentence. On January 14, 2013, the trial court denied the

motion, stating in the minute order that defendant’s current commitment offenses are

three counts of murder and ruling that defendant is ineligible for resentencing under

section 1170.126.

          In her motion for modification of sentence, defendant claimed that her sentence

should be modified to “reverse a strike.” However, no strike was applied. As noted ante,

the information alleged a prior conviction, which the trial court struck on the

prosecution’s motion. Defendant was convicted of three second degree murder charges

and three gross vehicular manslaughter while intoxicated charges. She was sentenced to

an indeterminate term of 45 years to life in state prison on those charges.

          We have conducted an independent review of the record and find no arguable

issues.

                                       DISPOSITION

          The judgment is affirmed.

          NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 McKINSTER
                                                                                            J.
We concur:


HOLLENHORST
          Acting P. J.

KING
                             J.



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