People v. Kashani CA4/1 ( 2021 )

Filed 12/10/21 P. v. Kashani 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078676
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCN236630,
CN328963, CN332175)
MIRMASSOUD KASHANI,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Brad A. Weinreb, Judge. Affirmed.
Mirmassoud Kashani, in pro. per.; and Jay Temple, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In order to avoid immigration consequences of his criminal convictions,
Mirmassoud Kashani filed a motion under Penal Code 1 section 1473.7,
subdivision (f) to vacate four felony convictions and three misdemeanor
1 All further statutory references are to the Penal Code.
convictions. After briefing and a hearing, the trial court found the motion
untimely and lacking merit. Kashani appeals the denial of his motion.
In September 2010, Kashani pleaded guilty to one count of felony
conspiracy (§ 182, subd. (a)(4)) and three counts of use of personal identifying
information of another person (§ 530, subd. (a)) and admitted a special
allegation under section 12022.6, subdivision (a)(2). He was sentenced to a
stipulated term of four years in prison.
In 2014, Kashani pleaded guilty to misdemeanor violations of
sections 484 and 490.5 in two separate cases. He was sentenced to time
served.
In 2012, federal immigration authorities instituted removal
proceedings. The removal order was entered in 2019 and affirmed in 2020.
In June 2020, Kashani, who has a law degree and passed the California
bar, filed a motion to vacate his convictions under section 1473.7, contending
he had ineffective assistance of counsel in his convictions and that he did not
understand the adverse immigration consequences of his various guilty pleas.
After briefing and a hearing, the trial court denied Kashani’s motion to
vacate by written order. Kashani filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Kashani the opportunity
to file his own brief on appeal. Kashani has responded with a lengthy brief
which repeats the submissions he has previously made in the trial court. We
will address his brief below.
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STATEMENT OF FACTS
We will incorporate the statement of facts contained in appellant’s
opening brief for background information.
In ruling on Kashani’s motion, the trial court first found that Kashani’s
motions were untimely. Specifically, removal proceedings were initiated
against Kashani in 2012. Section 1473.7, which went into effect on January
1, 2017, states that motions be filed with “reasonable diligence.” Kashani
filed his motion approximately three and a half years after the statute went
into effect.
The trial court also found that Kashani was aware of the immigration
consequences when he entered his pleas. In so finding, the trial court cited to
Kashani’s law degree and passage of the California Bar exam, the time
Kashani had between the filing of the complaint and pleading guilty to
research and evaluate possible consequences of his plea in San Diego
Superior Court case No. SCN236630 (case No. SCN236630), the fact that
Kashani’s attorney crossed out the word “may” and wrote “will” in the clause
discussing deportation consequences on the change of plea form in case
No. SCN236630, and the fact that even if Kashani’s attorney in that case
could have worded a safer factual basis, there is no indication that the People
would have accepted the proposed changes in light of Kashani’s criminal
history and his conduct underlying the charges.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S.738 (Anders), counsel
has identified a possible issue which was considered in evaluating the
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potential merits of this appeal: Whether the trial court erred in denying
Kashani’s motions for relief under section 1473.7.
In his supplemental brief, Kashani argues the trial court was ignorant
of the law that it applied to this case, or at least misunderstood the applicable
burden of proof. He also argues the three and a half years from the effective
date of section 1473.7, subdivision (f) was not unreasonable. He contends the
affirmance of his appeal from the immigration ruling constituted a new
adverse action and therefore rendered his filing timely. We have carefully
reviewed Kashani’s supplemental brief. It does not raise any arguable issues
for reversal on appeal.
In addition, we have reviewed the entire record as required by Wende
and Anders. We have not discovered any arguable issues for reversal on
appeal. Competent counsel has represented Kashani on this appeal.
DISPOSITION
The order denying Kashani’s motion to vacate convictions under
section 1473.7, subdivision (f) is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.
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