People v. Ocampo CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD221149
- Trial judge
- Kathleen M. Lewis
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Cynthia Aaron
Analysis
The trial court denied Ocampo's motion to vacate her 2009 perjury conviction, finding she was fully informed of immigration consequences and unreasonably delayed in seeking relief. The Court of Appeal affirmed the denial, finding no reasonably arguable issues on appeal because the record lacked evidence of ineffective assistance of counsel.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to vacate conviction based on ineffective assistance of counsel regarding immigration advice“In the case before us there is simply no evidence in the record that counsel was ineffective.” | abuse of discretion | not reached | agree with court The appellate court did not explicitly apply the abuse of discretion standard to the trial court's ruling; instead, it conducted an independent Wende/Anders review of the record and found no reasonably arguable issues because the defendant failed to provide evidence of counsel's error or prejudice, rendering the claim non-arguable on the existing record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to identify reasonably arguable issues and the court to independently review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying possible but not arguable issues when no arguable issues exist.
- relied: Padilla v. Kentucky (2010) 559 U.S. 356 — Defense counsel may provide ineffective assistance when failing to accurately advise a noncitizen of the immigration consequences of a guilty plea.
- relied: Strickland v. Washington (1984) 466 U.S. 668 — The burden is on the defendant to show both error by counsel and prejudice to establish ineffective assistance of counsel.
The appellate opinion: sound — The opinion is sound because it correctly applies the Wende/Anders framework to determine that a claim is not reasonably arguable when the record lacks evidentiary support for the elements of the claim. It properly notes that self-serving statements in a brief or motion do not constitute evidence to overcome the presumption of regularity or satisfy the Strickland burden.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Silvia Ocampo's December 2014 nonstatutory motion to vacate her 2009 perjury plea on immigration grounds, finding she had been fully advised of immigration consequences in her plea form and had unreasonably delayed more than two years after 2011 immigration proceedings began. On a Wende appeal with a supplemental Padilla brief from Ocampo, the Court of Appeal found no evidence in the record of ineffective assistance and no arguable issues, and affirmed the order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to vacate the 2009 perjury conviction based on alleged failure of counsel to advise of immigration consequences (Padilla/Strickland ineffective assistance claim)“The only evidence presented was Ocampo's change of plea form, where she acknowledged she was facing deportation or other immigration consequences. On this record, the supplemental brief does not raise any reasonably arguable issues for reversal on appeal.” | unclear | correct | agree with court Under Strickland the defendant bears the burden to show deficient performance and prejudice; the only record evidence was the initialed and signed plea form reflecting advice of immigration consequences, and the motion contained no declarations and no hearing was held. On that record there was no evidentiary basis to find ineffective assistance, so affirmance follows. The court did not expressly state a standard of review, though appointed counsel framed the issue as abuse of discretion. The court also did not note that the 2009 plea predates Padilla (2010), which under Chaidez v. United States is not retroactive, nor that under People v. Kim a nonstatutory motion to vacate (coram nobis) does not lie for ineffective assistance claims—both points would only reinforce the result. |
Finding that Ocampo unreasonably delayed in seeking relief, waiting more than two years after the 2011 immigration actions were initiated“The trial court denied the motion finding Ocampo was fully informed of the possible immigration consequences of her plea and that she had unreasonably delayed in seeking relief, waiting more than two years after the 2011 immigration actions were initiated.” | unclear | not reached | unsure The Court of Appeal recited the trial court's diligence finding but did not analyze it, resting affirmance instead on the absence of evidence of ineffective assistance. The diligence ground is independently consistent with People v. Kim, which requires a coram nobis petitioner to show due diligence and treats an unexplained multi-year delay as a basis for denial. Because the court did not address it, there is nothing to agree or disagree with on this ground; the result is nonetheless defensible. |
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 issues before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacking in merit may so advise the court and identify possible issues to assist the court's independent review.
- relied: Strickland v. Washington (1984) 466 U.S. 668 — A defendant claiming ineffective assistance of counsel bears the burden of proving both deficient performance and resulting prejudice.
- relied: Padilla v. Kentucky (2010) 559 U.S. 356 — Defense counsel's failure to advise a noncitizen client of the deportation consequences of a guilty plea can constitute deficient performance under the Sixth Amendment.
- missed: People v. Kim (2009) 45 Cal.4th 1078 — A nonstatutory motion to vacate a judgment is treated as a petition for writ of error coram nobis, which requires a showing of due diligence and does not lie to raise claims of ineffective assistance of counsel or ignorance of immigration consequences.
The appellate opinion: sound with gaps — The court correctly applied Wende/Anders review and correctly held that, under Strickland, a bare Padilla assertion unsupported by any declaration or evidence cannot establish ineffective assistance where the plea form shows advice of immigration consequences. It skipped two readily available grounds that would have strengthened the result: People v. Kim's rule that coram nobis does not lie for ineffective-assistance claims and requires diligence (echoing the trial court's unaddressed delay finding), and the nonretroactivity of Padilla to a 2009 plea under Chaidez v. United States.
Opinion
Filed 8/17/15 P. v. Ocampo 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, D067703
Plaintiff and Respondent, v. (Super. Ct. No. SCD221149)
SILVIA OCAMPO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kathleen M.
Lewis, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Respondent.
In August 2009, Silvia Ocampo entered a guilty plea to perjury (Pen. Code, § 118, subd. (a)) committed in connection with false documents used to conceal her actual citizenship in her application for a driver's license. In return for her change of plea the remaining counts were dismissed and she was placed on summary probation. In the change of plea form Ocampo was advised she was subject to deportation or removal if she was not a United States citizen.
In December 2014, Ocampo filed a motion to vacate and set aside default judgment in which she sought to have her conviction set aside in light of adverse immigration consequences occurring since her 2009 conviction. The trial court denied the motion finding Ocampo was fully informed of the possible immigration consequences of her plea and that she had unreasonably delayed in seeking relief, waiting more than two years after the 2011 immigration actions were initiated.
Ocampo filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating she has not been able to identify any reasonably arguable issues for reversal on appeal. Counsel requests this court to review the record for error as mandated by Wende. We offered Ocampo the opportunity to file her own brief. She has done so and we will discuss it below.
DISCUSSION
As we have discussed, appellate counsel has indicated she has not been able to identify any reasonably arguable issues for reversal on appeal. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible, but not arguable issue to assist the court in our review of the record:
Whether the trial court abused its discretion in denying the motion to vacate the conviction based on the claim of failure of counsel to adequately advise Ocampo of the immigration consequences of her plea.
2 In her supplemental brief, Ocampo cites Padilla v. Kentucky (2010) 559 U.S. 356, for the proposition that defense counsel may provide ineffective assistance when failing to accurately advise a noncitizen of the immigration consequences of his or her guilty plea. The difficulty with the supplemental brief is that the only evidence in the record regarding the advice Ocampo received from defense counsel is in the change of plea form, where she initialed and signed the form, which reflected the potential immigration consequences of her plea and that she had been advised by counsel. Her motion to "vacate the judgment" in the trial court contains some self-serving statements, but there were no declarations from her or her counsel. There was no hearing on the fact of or the nature of the advice she received.
Statements in a supplemental brief or motion are not evidence. Under Strickland v. Washington (1984) 466 U.S. 668, the burden is on the defendant to show both error by counsel and prejudice. In the case before us there is simply no evidence in the record that counsel was ineffective. The only evidence presented was Ocampo's change of plea form, where she acknowledged she was facing deportation or other immigration consequences. On this record, the supplemental brief does not raise any reasonably arguable issues for reversal on appeal.
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, and have not identified any reasonably arguable issues for reversal on appeal. Competent counsel has represented Ocampo on this appeal.
3 DISPOSITION
The order denying the motion to vacate the 2009 conviction is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12