People v. Adiova CA4/1

California Court of Appeal · D079112 · 2022-02-02 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCN374491
Trial judge: Amalia L. Meza
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Judith D. McConnell (author), William S. Dato, Truc T. Do

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:55Z · confidence low

The trial court denied Adiova's motion to vacate his guilty plea, finding that he had prior knowledge of immigration consequences and likely gambled on avoiding them again. The Court of Appeal affirmed the order, finding no reasonably arguable issues on Wende/Anders review.

Ruling reviewed	Standard	The court	The model
Denial of motion to vacate guilty plea under Penal Code sections 1016.5 and 1473.7 “A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues.”	unclear	not reached	unsure The appellate court did not apply a specific standard of review (such as abuse of discretion or de novo) to the trial court's factual findings or legal conclusions. Instead, it conducted a Wende/Anders review of the record and concluded that no reasonably arguable issues existed, thereby affirming the judgment without addressing the merits of the trial court's reasoning regarding prejudice or the sufficiency of the plea form warnings.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by appointed appellate counsel to identify reasonably arguable issues when counsel files a Wende brief.
relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and request leave to withdraw, allowing the court to review the record for error.

The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of the Wende/Anders framework, as it correctly identifies the procedural posture and the duty to review the record. However, it is substantively thin because it fails to address the specific legal arguments raised in the lower court (such as the interplay between the signed plea form and the statutory requirement for judicial advice under section 1016.5), relying solely on the conclusion that no issues are 'reasonably arguable' without explaining why the trial court's factual findings were not erroneous.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The trial court, after an evidentiary hearing, denied Estelito Adiova's motion to vacate his 2017 guilty plea to possession for sale of a controlled substance, rejecting his claims under Penal Code sections 1016.5 and 1473.7 and his ineffective-assistance claim, finding he had prior experience with immigration consequences and gambled he could beat them again. On appeal, appointed counsel filed a Wende/Anders brief, Adiova filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of motion to vacate guilty plea under Penal Code section 1016.5 (court's failure to orally advise of immigration consequences) “However, the trial court did not expressly advise him of the immigration consequences of his plea as required by section 1016.5.”	unclear	correct	agree with court Although the trial court gave no oral advisement, Adiova initialed paragraph 7d of the plea form, which tracked the section 1016.5 advisement and additionally warned that his offense was an aggravated felony requiring deportation; published authority holds a written plea-form advisement satisfies the statute (People v. Ramirez). Section 1016.5 relief also requires prejudice, and the trial court's credibility finding that Adiova knew of the consequences from his prior deportation proceeding and chose to gamble defeats prejudice. The Court of Appeal did not analyze this, but the result is supported by the record quoted.
Denial of relief under Penal Code section 1473.7 for failure to show prejudicial error affecting ability to understand immigration consequences “did the trial court err in ruling that Adiova failed to demonstrate the prejudicial error necessary for relief under section 1473.7?”	unclear	correct	agree with court Under People v. Vivar the appellate court independently reviews a section 1473.7 ruling but defers to trial-court credibility findings. Here the trial court found counsel's custom-and-practice testimony and the signed plea form more credible than Adiova's testimony, and found that Adiova, who had already been through removal proceedings after a prior strike conviction and prevailed, understood the risk and accepted a stipulated 32-month deal anyway. There is no contemporaneous evidence that immigration consequences were his paramount concern, so no reasonable probability he would have rejected the plea. The Wende opinion did not articulate the Vivar standard, but the outcome is defensible.
Rejection of claim that the plea should be withdrawn for ineffective assistance of counsel in failing to advise of immigration consequences “So he had prior[ ] knowledge and experience of immigration consequences resulting from a criminal conviction.”	unclear	correct	agree with court Counsel signed a declaration on the plea form that he had explained the immigration consequences, testified it was his invariable practice to read the immigration paragraph to clients with an immigration hold, and the court noted Adiova had an immigration hold at his first readiness conference. The trial court's finding that Adiova knew of and accepted the deportation risk negates Strickland prejudice. The claim was also presented in a separate habeas petition the court denied concurrently, so the appellate disposition is consistent.

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 wholly frivolous may so advise the court and identify anything in the record that might arguably support the appeal.
missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende/Anders independent review is constitutionally required only in a defendant's first appeal of right; it is not required in appeals from postjudgment orders, where the court may dismiss the appeal as abandoned if the defendant files no supplemental brief.
missed: People v. Vivar (2021) 11 Cal.5th 510 — Appellate courts independently review the denial of a section 1473.7 motion, giving deference to trial-court credibility findings based on live testimony, and prejudice requires a reasonable probability the defendant would have rejected the plea had he understood its immigration consequences.
missed: People v. Ramirez (1999) 71 Cal.App.4th 1215 — A written advisement of immigration consequences in a plea form that the defendant initials and signs satisfies section 1016.5 even absent an oral advisement by the court.

The appellate opinion: sound with gaps — The opinion reaches a defensible result: the plea form contained the statutory immigration advisement and an aggravated-felony warning, counsel attested to explaining it, and the trial court made a credibility-based finding that Adiova knew of and accepted the deportation risk, which defeats prejudice under sections 1016.5 and 1473.7 and Strickland. It is a bare Wende affirmance, however, that performs independent review of a postjudgment order without addressing People v. Serrano on whether such review was required, and offers no analysis under Vivar or Ramirez of the two issues counsel identified.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 2/2/22 P. v. Adiova 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, D079112

Plaintiff and Respondent, (Super. Ct. No. SCN374491)

ESTELITO ADIOVA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed. Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Estelito Adiova appeals a postjudgment order denying his motion to vacate his 2017 guilty plea to a felony offense. Adiova’s motion to vacate was 1 based on Penal Code1 sections 1016.5 and 1473.7 and a claim of ineffective assistance of counsel. He also has filed with this court a separate petition for writ of habeas corpus, which petition again alleges ineffective assistance of counsel. (See, In re Adiova, D079804.) We have considered his petition concurrently with his appeal and issued a separate opinion denying it. FACTUAL AND PROCEDURAL BACKGROUND On August 16, 2017, in return for a stipulated 32-month prison term, Adiova pled guilty to one count of possession for sale of a controlled substance (Health & Saf. Code, § 11378) and admitted the truth of allegations under sections 667, subdivision (b) through (i), 1170.12, and 668. His three-page change of plea form included, among other things, paragraph 7d on page two, which paragraph Adiova initialed, stating: “I understand that if I am not a U.S. citizen, this plea of Guilty/No Contest may result in my removal/deportation, exclusion from admission to the U.S. and denial of naturalization. Additionally, if this plea is to an ‘Aggravated Felony’ listed on the back of this form, then I will be deported, excluded from admission to the U.S., and denied naturalization.” On the reverse side of that page, the offense of possession for sale of any controlled substance was listed as an “aggravated felony.” In addition, Matthew Wechter, Adiova’s defense counsel, signed a statement on the change of plea form, representing that he had “personally read and explained to [Adiova] the entire contents of this plea form” and, in particular, that he had “discussed . . . the consequences of this plea, including any immigration consequences.”

1 All statutory references are to the Penal Code unless otherwise specified. 2 At his change of plea hearing, Adiova confirmed that he had read the plea form carefully, understood it, and then initialed and signed it. However, the trial court did not expressly advise him of the immigration consequences of his plea as required by section 1016.5. The court accepted his guilty plea and sentenced him to 32 months in prison. On March 13, 2020, Adiova filed a motion to vacate his guilty plea pursuant to section 1016.5. In his petition, he alleged that his defense counsel failed to advise him that he would have immigration consequences as a result of his guilty plea. The prosecution opposed his motion to vacate, arguing that Adiova had signed the plea form and initialed paragraph 7d thereof and his defense counsel had signed a statement representing that he had discussed with Adiova the immigration consequences of his plea. In a memorandum of points and authorities filed in support of Adiova’s motion to vacate, his new counsel argued: (1) Adiova was entitled to relief under sections 1016.5 and 1473.7 because he was not adequately advised by the court and his defense counsel of the immigration consequences of his guilty plea; and (2) he was entitled to withdraw his guilty plea because he was denied effective assistance of counsel based on his defense counsel’s failure to advise him of the immigration consequences of his guilty plea. On April 30 and May 3, 2021, the court conducted an evidentiary hearing on Adiova’s motion to vacate. Adiova testified remotely from an immigration detention facility. He testified that his defense counsel never discussed with him any potential immigration consequences, such as deportation, before he pleaded guilty. He testified that if he had been advised that his guilty plea would lead to his deportation, he would not have pled guilty and instead proceeded to trial on the charges against him. Adiova also testified regarding his prior burglary conviction that resulted in a prior 3 immigration proceeding after his release from prison. Although an immigration judge had issued a removal order in that prior proceeding, that removal order was reversed on appeal and Adiova was allowed to remain in the United States as a lawful permanent resident. Wechter, Adiova’s defense counsel, testified that at Adiova’s first readiness conference he had noted Adiova had an immigration hold on him. Regarding Adiova’s change of plea form, Wechter testified that it was his “habit, custom, and practice” to discuss immigration consequences with defendants like Adiova who had an immigration hold and he would always explicitly read to them the paragraph regarding immigration consequences. However, he did not have a specific recollection of whether he had done so in Adiova’s case. The court took judicial notice of Adiova’s change of plea form, heard arguments of counsel, and then stated: “[I]t stretches credulity that he or his defense attorney would think that somehow they could get a better deal that didn’t have immigration consequences.

“And as to whether or not, you know, he is a man who would never take a deal that might jeopardize his immigration, all I have to do is look at his prior case where the plea said he will be deported in the plea form and that involved a prior strike, which resulted in the defendant going through the deportation proceedings. So he had prior[ ] knowledge and experience of immigration consequences resulting from a criminal conviction.

“But what happened in that prior case was that he beat the immigration consequences and he got a green card back. “And so I think he–based on the evidence that he realized that, yes, there are immigration consequences that flow from criminal consequences, but if you’re lucky, you can beat them. And I think maybe that’s what happened here 4 is that he thought he could gamble again and beat it a second time.” Accordingly, the court denied the motion to vacate. DISCUSSION Adiova’s appointed counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presents no argument for reversal of the order, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). To assist our review, counsel cites Anders, and identifies the following possible, but not arguable, issues: (1) did the trial court err in denying Adiova’s motion to withdraw his guilty plea pursuant to section 1016.5; and (2) did the trial court err in ruling that Adiova failed to demonstrate the prejudicial error necessary for relief under section 1473.7? We granted Adiova permission to file a supplemental brief on his own behalf, but he did not file one. Instead, he apparently chose to file a petition for writ of habeas corpus, which petition we address separately in In re Adiova, D079804. A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Adiova was competently represented by counsel on this appeal.

5 DISPOSITION The order is affirmed.

McCONNELL, P. J.

WE CONCUR:

DATO, J.

DO, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12