THE PEOPLE v. CANDELARIO DE JESUS MORAN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. CANDELARIO DE JESUS MORAN, Defendant and Appellant.

B226195

Decided: February 24, 2011

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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In December 2005, defendant and appellant Candelario de Jesus Moran was charged with one felony count of making a criminal threat in violation of Penal Code section 422.1  On June 7, 2006, defendant appeared in court with appointed counsel and entered into a plea agreement with respondent on the record, entering a plea of no contest to the charge of making a criminal threat.   The court recited on the record the requisite admonitions to defendant, including the statutory admonition regarding immigration consequences set forth in section 1016.5.   Specifically, the court warned defendant that “[i]f you're not a United States citizen, you may be deported.   You will be deported, denied reentry and denied naturalization.”   The court found defendant acknowledged and waived his rights freely, knowingly and voluntarily and thereafter sentenced defendant to the agreed-upon term of 16 months in state prison (however it appears from the record defendant ultimately served his entire sentence in county jail).

In February 2010, defendant was detained by United States Immigration and Customs Enforcement (ICE) and charged with being a “removable alien.” 2  Defendant filed a motion, before the trial court, to vacate and/or modify his 16-month sentence pursuant to section 1016.5, subdivision (b) on the grounds that he was not properly advised of the immigration consequences of his plea and that the length of the sentence exposes him to deportation.3  Defendant contends that while he was born in El Salvador, he immigrated to the United States in December 1979 and has lived and worked here with his family consistently since that time and would not have any family or resources if deported to El Salvador.   He further contends that he would not have entered into the plea had he known the full consequences of his plea agreement as it would be a grave hardship on him to be deported to El Salvador.

On July 13, 2010, the trial court denied defendant's motion to vacate on the grounds that the court transcripts reflect that defendant was duly admonished about the immigration consequences of his plea.   Defendant filed a timely notice of appeal of the order denying his motion to vacate.   The denial of defendant's postjudgment statutory motion to vacate was an appealable order.   (People v. Totari (2002) 28 Cal.4th 876, 887.)

We appointed appellate counsel to represent defendant.   Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ) in which no issues were raised.   The brief included a declaration from counsel that he reviewed the record and sent a letter to defendant explaining his evaluation of the record.   Counsel further declared that he advised defendant of his right, under Wende, to submit a supplemental brief within 30 days.   Defendant did not file any supplemental brief with this court.   Because the clerk's transcript on appeal contained minimal documentation, we requested the superior court to transmit the underlying court file for review in connection with this appeal.

When a defendant suffers a conviction pursuant to a plea agreement, section 1016.5 provides the defendant may move to have the conviction vacated and the plea withdrawn, if the defendant was not provided the mandatory admonitions regarding immigration consequences set forth in the statute.  (People v. Superior Court (Zamudio ) (2000) 23 Cal.4th 183.)   Here however, the record clearly reflects that defendant was given the immigration admonitions required by the statute.   There are some slight deviations in the language used by the court as compared to the statutory language, but we conclude they are not material.  (People v. Valenciano (1985) 165 Cal.App.3d 604 [admonition expressing consequences as “exclusion” from United States, denial of reentry and denial of naturalization properly gave warnings required by statute even though specific word “deportation” was not stated].)   Defendant was represented by counsel during the proceedings and there is nothing in the record to suggest that defendant, who has resided in the United States since 1979, had any difficulties understanding the proceedings spoken in English.   When asked by the court if he had any questions regarding any of the rights he was waiving, defendant only inquired about issues pertaining to his release date.   As such, we find no error with the trial court's ruling denying the motion.4

We have examined the entire record and are satisfied that appointed counsel fully complied with his responsibilities in assessing whether or not any colorable appellate issues exist.   We conclude there are no arguable appellate issues.  (People v. Kelly (2006) 40 Cal.4th 106;  Wende, supra, 25 Cal.3d 436.)   We therefore affirm the court's denial of defendant's motion to vacate the judgment and/or modify sentence.

DISPOSITION

The court's order of July 13, 2010, is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

FN2. Defendant remains in ICE custody at the present time..  FN2. Defendant remains in ICE custody at the present time.

FN3. Defendant has a separate appeal pending before this court under case No. B227863 seeking relief from the denial of his motion to vacate or modify a separate conviction arising from carrying a concealed weapon.   We will resolve that appeal by way of a separate opinion..  FN3. Defendant has a separate appeal pending before this court under case No. B227863 seeking relief from the denial of his motion to vacate or modify a separate conviction arising from carrying a concealed weapon.   We will resolve that appeal by way of a separate opinion.

FN4. To the extent defendant's motion purported to raise an ineffective assistance of counsel argument, we find nothing in the record that allows resolution of that question by way of this direct appeal.   Such a claim, if at all, is more appropriately raised in a petition for writ of habeas corpus filed in the appropriate court.  (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.).  FN4. To the extent defendant's motion purported to raise an ineffective assistance of counsel argument, we find nothing in the record that allows resolution of that question by way of this direct appeal.   Such a claim, if at all, is more appropriately raised in a petition for writ of habeas corpus filed in the appropriate court.  (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

BIGELOW, P. J. FLIER, J.