People v. Plascencia CA2/1

Filed 9/3/20 P. v. Plascencia CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B301962
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA108205)
v.
ENRIQUE GUSTAVO
PLASCENCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gary J. Ferrari, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_____________________
FACTUAL AND PROCEDURAL BACKGROUND
On January 10, 2019, Enrique Gustavo Plascencia pleaded
no contest and was convicted of a charge of kidnaping (Pen. Code,
§ 207, subd. (a)) and admitted a prior prison term allegation (id.,
§ 667.5, subd. (b).) The trial court sentenced him to state prison
for six years, consisting of five years for the kidnaping conviction
and one year for the enhancement for a prior prison term.
On September 17, 2019, Plascencia filed a petition for
habeas corpus in superior court. He asked the court to strike his
prior prison term enhancement under Senate Bill No. 136 (2019-
2020 Reg. Sess.). The trial court denied the petition.
On October 21, 2019, Plascencia filed a timely notice of
appeal purporting to appeal from this denial of his habeas corpus
petition.
We appointed counsel to represent Plascencia on appeal,
and on June 4, 2020, counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal. 3d 436, requesting that this court
independently review the entire record on appeal for arguable
issues because appointed counsel discovered none on his own
review. On June 5, 2020, we directed counsel to send Plascencia
a copy of his Wende brief and the appellate record. On the same
date, we also sent Plascencia a letter informing him he had 30
days from the date of the letter to file a supplemental brief
raising any contentions or issues he wished us to consider.
Plascencia did not file a supplemental brief.
DISCUSSION
As an initial matter, we note that a denial of a habeas
corpus petition is not appealable. (See Briggs v. Brown (2017) 3
Cal. 5th 808, 836.) The proper procedure is for the petitioner to
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file a new habeas corpus petition with the Court of Appeal.
(Ibid.)
Moreover, because Plascencia’s appeal is from an order
denying post-conviction relief, the procedural protections
established in People v. Wende (1979) 52 Cal. 3d 436 do not apply.
(People v. Cole (2020) 52 Cal. App. 5th 1023, 1034.) In Cole,
Division Two of this court recently explained that in a criminal
appeal from a post-conviction order to which Wende does not
apply, counsel who find no arguable issues are required to “file a
brief with the Court of Appeal setting forth (1) a brief statement
of the pertinent procedural history of the case, (2) a brief
summary of the pertinent facts, (3) counsel’s declaration that
there are no reasonably arguable issues to present on appeal, and
(4) counsel’s affirmation that he or she remains ready to brief any
issues at the request of the Court of Appeal.” (Id. at p. 1038.)
Counsel in this case fulfilled these requirements.
The appeal is subject to dismissal for two reasons. First, in
noncapital cases, there is “no right to appeal from a superior
court denial of habeas corpus relief.” (Briggs v. Brown, supra, 3
Cal.5th at p. 836; accord, Robinson v. Lewis (2020) 9 Cal. 5th 883,
895; In re Clark (1993) 5 Cal. 4th 750, 767, fn. 7.) Because the
order is nonappealable, the appeal from that order must be
dismissed. (People v. Fuimaono (2019) 32 Cal. App. 5th 132, 134,
135.)
Second, because Wende does not apply and Plascencia did
not file a supplemental brief, we deem the appeal to be
abandoned. (See People v. Cole, supra, 52 Cal.App.5th at p. 1039;
People v. Serrano (2012) 211 Cal. App. 4th 496, 504.)
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED
SINANIAN, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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