People v. Benitez CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCN060376
- Trial judge
- K. Michael Kirkman
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald, O'Rourke
Analysis
The trial court denied Benitez's motion to vacate her 1997 guilty plea, finding she was aware of the immigration consequences. The Court of Appeal affirmed the denial, concluding the record demonstrated she was fully informed of potential deportation.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to vacate guilty plea based on lack of awareness of immigration consequences“The record demonstrates Benitez was fully informed that a consequence of her guilty plea could include her removal from the country. Thus, we will affirm the trial court's decision.” | unclear | correct | agree with court The appellate court found the trial court's decision correct because the transcript showed the judge explicitly advised Benitez of deportation risks and she acknowledged understanding. The court relied on the factual record of the plea colloquy to determine the plea was knowing and voluntary regarding immigration consequences. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the requirement for appointed appellate counsel to review the record for error when no reasonably arguable issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any possible issues and requesting the court to review the record for error.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the Wende/Anders protocol for reviewing a record where counsel finds no arguable issues. However, it is substantively thin, as it does not explicitly state the standard of review for the motion to vacate or cite specific case law governing the sufficiency of immigration advisements, relying instead on a bare assertion that the record demonstrates full information.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Luz Elva Benitez's December 2014 motion to vacate her 1997 guilty plea to possession of a controlled substance for sale, which she claimed was entered without adequate advisement of immigration consequences. On appeal, appointed counsel filed a Wende brief, the Court of Appeal independently reviewed the record, found the plea colloquy and plea form showed Benitez was fully advised of possible deportation, exclusion, and denial of naturalization, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to vacate 1997 guilty plea based on alleged failure to advise of immigration consequences“The record demonstrates Benitez was fully informed that a consequence of her guilty plea could include her removal from the country. Thus, we will affirm the trial court's decision.” | unclear | correct | agree with court The quoted 1997 plea form initials and the on-the-record colloquy track the three statutory immigration advisements (deportation, exclusion from admission, denial of naturalization), so a claim that the court failed to advise her is contradicted by the record. The court did not state a standard of review (ordinarily abuse of discretion for a section 1016.5 motion) and did not separately discuss the portion of the motion asserting that counsel failed to advise her, but under Wende review of the whole record the result is defensible on the record quoted. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacks merit may file a brief identifying anything in the record that might arguably support the appeal, after which the court conducts its own review.
The appellate opinion: sound with gaps — The opinion correctly applies the Wende/Anders procedure and the quoted plea form and colloquy squarely refute the claim that Benitez was not advised of immigration consequences, so the affirmance is well supported. It does not, however, identify the statutory or legal basis of the motion, the applicable standard of review, or address the motion's separate assertion that counsel failed to advise her, leaving the analysis thin even for a Wende disposition.
Opinion
Filed 6/5/15 P. v. Benitez CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067395
Plaintiff and Respondent, v. (Super. Ct. No. SCN060376)
LUZ ELVA BENITEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Luz Elva Benitez appeals from the trial court's denial of her motion to vacate her 1997 guilty plea on the basis she was not aware of the immigration consequences of her guilty plea. The record demonstrates Benitez was fully informed that a consequence of her guilty plea could include her removal from the country. Thus, we will affirm the trial court's decision.
In September 1997, Benitez entered a guilty plea to possession of a controlled substance for sale (Health & Saf. Code, § 11378) and admitted a prior conviction for the same type of offense. As part of the change of plea process, Benitez completed a change of plea form which included her initials next to the statement: "I understand that if I am not a citizen of the United States a plea of Guilty or No Contest could result in deportation, exclusion from admission to this country and/or denial of naturalization."
During the change of plea the trial judge questioned Benitez about her decision, knowledge of her rights, the assistance of counsel and the potential immigration consequences of her plea. The following discussion took place:
"The Court: U.S. citizen?
"Benitez: No, sir.
"The Court: All right. If you are not, the court advises you, by entering this plea, you could be deported, and/or excluded from admission to the United States, and/or denial of naturalization. Do you understand those things?
"Benitez: Yes, sir.
"The Court: Knowing those, do you still wish to enter this plea?
"Benitez: Yes, sir."
In December 2014, Benitez filed a motion to vacate her 1997 conviction on the grounds she was not fully informed by the court and counsel of the immigration 2 consequences of her guilty plea. The trial court denied her request. Benitez filed a notice of appeal.
DISCUSSION
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating she has been unable to identify any reasonably arguable issue for reversal on appeal. Counsel requests this court review the record for error as mandated by Wende.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible, but not reasonably arguable issues for our consideration as we review the record for error:
1. Was Benitez properly advised of the rights she was waiving and the consequences of pleading guilty, particularly, the immigration consequences of pleading guilty?
2. Whether the transcript of the 1997 change of plea sufficiently supports the court's finding the plea was knowing and voluntary?
3. Did the trial court properly deny the motion to vacate the 1997 conviction?
We offered Benitez the opportunity to file her own brief on appeal but she has failed to respond.
We have reviewed the entire record on appeal as required by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not discovered any reasonably arguable issue for reversal on appeal. Competent counsel has represented Benitez on this appeal.
3 DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12