P. v. Carrillo CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Imperial County · No. CF-3628
- Trial judge
- William D. Lehman
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- McINTYRE (author), Gilbert Nares, Cynthia Aaron
Analysis
The trial court denied Carrillo's motion to vacate his no contest plea, finding he was properly advised of immigration consequences under Penal Code section 1016.5 and that any counsel deficiency would not have changed the outcome. The Court of Appeal affirmed the order, finding no reasonably arguable issues on appeal after independent review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to vacate judgment based on alleged failure to advise of immigration consequences (Pen. Code, § 1016.5)“The trial court ultimately denied the motion to vacate the judgment, finding that Carrillo was properly advised pursuant to section 1016.5 and that the court was not required to give additional advisements beyond the statutory requirements.” | unclear | not reached | unsure The appellate court did not independently analyze the merits of the trial court's ruling on the statutory advisement. Instead, it performed a Wende/Anders review and concluded that no reasonably arguable issues existed on appeal, thereby affirming the trial court's order without addressing the specific legal arguments regarding the adequacy of the section 1016.5 advisement. |
Denial of non-statutory motion to vacate judgment based on ineffective assistance of counsel“It also concluded that any possible deficiency in the performance of counsel would not have changed the result as Carrillo knew the effect of his plea on his immigration status, 'but had few, if any, attractive options'” | unclear | not reached | unsure The appellate court did not apply the Strickland standard or analyze the prejudice prong of the ineffective assistance claim. It relied on the Wende/Anders framework to determine that the issue was not reasonably arguable, effectively accepting the trial court's finding that the defendant's knowledge of the consequences negated prejudice without independent appellate scrutiny. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record to identify any arguable issues when no issues are raised in the brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any potential issues, even if they are not arguable, to facilitate independent appellate review.
- relied: Miranda v. Arizona (1966) 384 U.S. 436 — Establishes the requirement for law enforcement to inform suspects of their rights before custodial interrogation; cited here to note Carrillo waived his rights before confessing.
The appellate opinion: sound with gaps — The opinion is procedurally sound in its application of the Wende/Anders framework, correctly identifying that no arguable issues were presented by counsel. However, it is substantively thin because it fails to provide any legal analysis or reasoning for why the trial court's denial of the motion to vacate was correct, relying entirely on the negative finding of 'no arguable issues' without engaging with the specific statutory or constitutional claims raised.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Luis Perea Carrillo's 1016.5 and non-statutory motions to vacate his 1998 no contest plea to transporting marijuana, finding he had been properly advised of immigration consequences and that any deficiency in counsel's performance would not have changed the result. On appeal, appointed counsel filed a Wende/Anders brief, Carrillo filed nothing on his own behalf, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed the order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of statutory motion to vacate judgment under Penal Code section 1016.5 for failure to advise of immigration consequences“The trial court ultimately denied the motion to vacate the judgment, finding that Carrillo was properly advised pursuant to section 1016.5 and that the court was not required to give additional advisements beyond the statutory requirements.” | abuse of discretion | correct | agree with court The advisement quoted in the opinion tracks the statutory language of section 1016.5, subdivision (a) nearly verbatim (deportation, exclusion from admission, denial of naturalization), and Carrillo acknowledged understanding it. Section 1016.5 requires only the statutory advisement, not a prediction of actual consequences, so denial was within the court's discretion; the court's Wende review reached the right conclusion that there was no arguable issue. |
Denial of non-statutory motion to vacate plea based on ineffective assistance of counsel in advising about immigration consequences“It also concluded that any possible deficiency in the performance of counsel would not have changed the result as Carrillo knew the effect of his plea on his immigration status,” | unclear | correct | agree with court The trial court's prejudice finding is supported by the record described: counsel's own file showed deportation risk was discussed and the plea was viewed as Carrillo's best option, and the evidence (nearly 100 pounds of marijuana, a confession) left few alternatives. Independently, a non-statutory motion to vacate is not an available vehicle for an ineffective-assistance claim under People v. Kim (2009) 45 Cal.4th 1078, so affirmance was correct regardless. |
Wende/Anders independent review of the record finding no arguable appellate issue“Our review of the record pursuant to Wende, including the possible issues listed by counsel pursuant to Anders, has disclosed no reasonably arguable issues on appeal.” | de novo | correct | agree with court The court followed the Wende procedure: counsel identified possible issues, the defendant was given the opportunity to file a supplemental brief and did not, and the court reviewed the record. Nothing in the recited record suggests an arguable issue was overlooked. |
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 error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may file a brief referring to anything in the record that might arguably support the appeal, with the court then conducting its own review.
The appellate opinion: sound with gaps — The opinion correctly applies the Wende/Anders procedure and the record it recites (a statutory advisement tracking section 1016.5, defense counsel's file showing immigration consequences were discussed, overwhelming evidence) supports the conclusion that no arguable issue exists. It does not discuss People v. Kim (2009) 45 Cal.4th 1078, which would have independently foreclosed the non-statutory motion, or the then-recent question whether Wende review applies to post-judgment orders, but a Wende affirmance need not canvass authority and the result is plainly defensible.
Opinion
Filed 4/17/13 P. v. Carrillo 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, D062337
Plaintiff and Respondent, v. (Super. Ct. No. CF-3628)
LUIS F. PEREA CARRILLO, Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, William D.
Lehman, Judge. Affirmed.
Luis F. Perea Carrillo pleaded no contest to transportation of marijuana, in exchange for a grant of probation. The trial court denied his motion to vacate the judgment. His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issue and affirm. FACTUAL AND PROCEDURAL HISTORY Carrillo immigrated to the United States as a minor and became a lawful permanent resident. In 1997, when Carrillo was 21 years old, Border Patrol agents conducted a traffic stop of the vehicle Carrillo was driving after seeing three other subjects place several bundles into the trunk of the vehicle. Carrillo was not the vehicle's registered owner. A search of the vehicle revealed four bundles containing about 96.65 pounds of marijuana. After waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), Carrillo told a Border Patrol agent that he agreed to pick up the marijuana and drive it back to a parking lot, where he would receive $200.
In 1998, at the time of his plea, the trial court advised Carrillo in conformance with Penal Code section 1016.5 as follows: "Do you understand that if you are not a citizen of the United States a conviction of the offense with which you've been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Undesignated statutory references are to the Penal Code.) Carrillo indicated that he understood the advisement. Carrillo successfully completed probation and has not had any further arrests or convictions.
In 2011, Carrillo received a notice to appear from the United States Department of Homeland Security informing him that he was subject to removal from the United States as a result of his conviction. Carrillo filed a motion in the trial court to vacate the judgment arguing that he was not adequately informed by the court of the potential immigration consequences of the plea in violation of section 1016.5. Attached to the 2 motion were portions of defense counsel's file which indicated that defense counsel knew that deportation was important to Carrillo, that counsel believed settlement of the case was unlikely due to Carrillo's immigration status, and that the no contest plea was Carrillo's "best bet not to be deported."
The trial court ultimately denied the motion to vacate the judgment, finding that Carrillo was properly advised pursuant to section 1016.5 and that the court was not required to give additional advisements beyond the statutory requirements. It also concluded that any possible deficiency in the performance of counsel would not have changed the result as Carrillo knew the effect of his plea on his immigration status, "but had few, if any, attractive options" because he was caught transporting almost 100 pounds of marijuana, he confessed to receiving money for his work and suspected that he was transporting marijuana or cocaine.
Carrillo timely appealed and obtained a certificate of probable cause.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. He presented no argument for reversal, but asked this court to review the record for error as mandated Wende. Under Anders, he listed as possible but not arguable issues, whether trial court abused its discretion in denying his: (1) statutory motion to vacate his no contest plea because the trial court failed to advise him of the immigration consequences as required by section 1016.5; and (2) non-statutory motion to vacate his no contest plea because trial counsel was ineffective in failing to advise him of 3 the immigration consequences. We granted Carrillo permission to file a brief on his own behalf. He has not responded.
Our review of the record pursuant to Wende, including the possible issues listed by counsel pursuant to Anders, has disclosed no reasonably arguable issues on appeal.
Competent counsel has represented Carrillo on this appeal.
DISPOSITION
The order is affirmed.
McINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12