People v. Campos CA3 ( 2020 )

Filed 11/10/20 P. v. Campos CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090579
Plaintiff and Respondent, (Super. Ct. Nos. 93F08332,
93F09725, 93F10615)
v.
ALBERTO CAMPOS,
Defendant and Appellant.
Appointed counsel for defendant Alberto Campos asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Because we find that defendant is not entitled to Wende
review, and has not raised an arguable issue in his supplemental brief, we dismiss the
appeal. (People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano).)
BACKGROUND
In 1994, in six consolidated cases, defendant pleaded no contest to possession of a
controlled substance for sale (Health & Saf. Code, § 11351.5), intimidation of a witness
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(Pen. Code, § 136.1)1 and admitted an on-bail enhancement (§ 12022.1), robbery (§ 211),
and second degree burglary (§ 459). In taking the plea, the trial court advised defendant
“If you’re not a citizen of the United States, this plea can result in your being deported
from the United States, excluded from admission to the United States or denied
naturalization as a U.S. citizen.” Defendant confirmed he understood that consequence
of his plea. The trial court sentenced defendant in accordance with the agreed-to
maximum sentence, an aggregate term of seven years eight months. The remaining
charges were dismissed.
In September 2017 defendant filed a petition for writ of error coram nobis.
Defendant claimed he had been denied effective assistance of counsel, because in 1994
his trial counsel had assured him his plea agreement would not lead to his deportation.
The trial court construed the writ petition as a section 1473.7 motion to vacate the pleas
based on the lack of advisement of the immigration consequences, appointed counsel, and
requested briefing.
Defendant waived appearance at the hearing, as he was in custody in North
Carolina. The trial court considered the parties’ briefs and additional argument at the
hearing. The trial court found defendant had received a good plea deal, given what his
exposure was, that he had been properly admonished by the court as to the immigration
consequences, and that at the time of the plea he did not appear concerned about the
immigration consequences but rather the length of sentence he would receive. The trial
court also considered trial counsel’s affidavit as to her standard practice and found
defendant’s contradictory affidavit was not credible. Based on these conclusions, the trial
court denied the motion.
1 Undesignated statutory references are to the Penal Code.
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DISCUSSION
Review pursuant to Wende or its federal constitutional counterpart Anders v.
California (1967) 386 U.S. 738 [18 L.Ed.2d 493] is required only in the first appeal of
right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555
[95 L.Ed.2d 539, 545-546]; Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537
(Ben C.); Serrano, supra, 211 Cal.App.4th at pp. 500-501.)
The right to Anders/Wende review applies only at appellate proceedings where a
defendant has a previously established constitutional right to counsel. (Serrano, supra,
211 Cal.App.4th at p. 500; Ben C., supra, 40 Cal.4th at pp. 536-537.) The constitutional
right to counsel extends to the first appeal of right, and no further. (Serrano, at pp. 500-
501.) While a criminal defendant has a right to appointed counsel in an appeal from an
order after judgment affecting his or her substantial rights (Pen. Code, §§ 1237, 1240,
subd. (a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus,
a defendant is not entitled to Wende review in such an appeal. (See Serrano, at p. 501
[no Wende review for denial of postconviction motion to vacate guilty plea pursuant to
Pen. Code, § 1016.5].)
The appeal before us, “although originating in a criminal context, is not a first
appeal of right from a criminal prosecution, because it is not an appeal from the judgment
of conviction.” (Serrano, supra, 211 Cal.App.4th at p. 501.) Applying Serrano here,
defendant has no right to a Wende review of the denial of his motion to vacate the
judgment pursuant to section 1473.7.
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief stating he did not believe “this new case in
Tennessee” would get him deported, unlike the California case, where he had “already
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faced the Immigration Courts.” As nothing in defendant’s supplemental brief raises an
arguable issue on appeal, we must dismiss it. (Serrano, supra, 211 Cal.App.4th at
pp. 503-504.)
DISPOSITION
The appeal is dismissed.
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
KRAUSE, J.
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