Opinion
A158588
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. LUIS BRIZUELA-NAVAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-151284-7)
Luis Brizuela-Navas (appellant) pled guilty to two counts of forcible lewd conduct with a minor under 14 years of age in exchange for a dismissal of more serious charges. (Pen. Code, § 288, subd. (b)(1).) He was sentenced to five years in prison, that time to be served while housed at the Division of Juvenile Justice (DJJ). After his release on parole, he was turned over to the federal authorities for deportation proceedings. He filed a motion under section 1473.7, asking the court to set aside his plea because he had not been adequately advised of the immigration consequences. This appeal is from the denial of that motion. His court-appointed appellate 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 conclude appellant is not entitled to review under Wende/Anders in this case and dismiss the appeal.
Further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Appellant was born June 9, 1999 in El Salvador, and was brought to the United States by his mother when he was about five years old. He obtained status in this country under the Deferred Action for Childhood Arrivals (DACA) federal immigration program. Between the ages of 12 and 15, he committed numerous sexual assaults against a female relative who was seven years his junior.
Former law permitted the district attorney to directly file charges against appellant in adult court. (Former Welf. & Inst., § 707, subd. (b), (d).) On August 7, 2015, following a preliminary hearing, an information was filed charging appellant with one count each of aggravated sexual assault of a child (rape), aggravated sexual assault of a child (oral copulation), aggravated sexual assault of a child (foreign object penetration), forcible lewd conduct with a child, forcible oral copulation and forcible sexual penetration. (§§ 269, subd. (a)(1), (a)(4) & (a)(5), 288, subd. (b)(1), 288a, subd. (c)(2)(B), 289, subd. (a)(1)(B).) The information was subsequently amended to include an additional count of forcible lewd conduct. (§ 288, subd. (b)(1).)
On April 28, 2016, appellant pled guilty to both forcible lewd conduct counts in exchange for a dismissal of the other charges. Appellant signed a written plea form indicating that his sentence would be eight years and that he would be "housed at DJJ." Another paragraph initialed by appellant provided, in accordance with Penal Code section 1016.5, "Federal law provides for mandatory deportation for certain crimes. I understand that if I am not a citizen of the United States, I have the right to contact a diplomatic or consular representative of my country, and conviction of a crime could result in my deportation, denial of my re-entry to the United States and denial of my application for citizenship."
On June 29, 2016, a sentencing hearing was held at which the parties agreed that appellant could be sentenced to five years notwithstanding the plea bargain, so that he could be housed at DJJ. The court sentenced appellant to prison for the five-year lower term on one count and ran the sentence on the other count concurrently, with appellant to be housed at DJJ. It additionally found, apparently with the parties' agreement, that an amenability report under Welfare and Institutions Code section 707.2 was not required. Appellant waived his right to appeal and was remanded to the custody of the DJJ. He did not file a notice of appeal from the judgment.
At the time appellant entered his plea, Welfare and Institutions Code section 1731.5, subdivisions (b) and (c)(3) provided that a defendant under 18 years of age could be transferred to DJJ for the purpose of housing only until, among other things, "[t]he inmate reaches 18 years of age. However, if the inmate's period of incarceration would be competed on or before the inmate's 21st birthday, the director may continue to house the inmate until the period of incarceration is completed." Here, appellant's period of incarceration would have been completed before his 21st birthday if he were sentenced to five years, but not if he were sentenced to eight years. Welfare and Institutions Code section 1731.5, subdivision (c) was amended in 2018 to increase the specified age from 21 to 25 years old, and the entire code section was repealed effective July 1, 2020 by its own terms. (Welf. & Inst. Code, § 1731.5, subd. (e), as amended by Stats. 2018, ch. 36, § 34, effective June 27, 2018.)
On October 27, 2016, at DJJ's request, the court ordered an amenability evaluation pursuant to Welfare and Institutions Code section 707.2.
On November 8, 2016, the voters enacted Proposition 57, which "prohibits prosecutors from charging juveniles with crimes directly in adult court" without first holding a transfer hearing. (See Welf. & Inst. Code, § 707, subd. (a).)" (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.) Our Supreme Court has held that Proposition 57 reduces the possible punishment for a crime and applies retroactively to cases that were not yet final on appeal when the measure was enacted. (Id. at pp. 303-304, 308; see also In re Estrada (1965) 63 Cal.2d 740, 745.)
Various post-conviction hearings were held at which appellant argued that he was entitled to the retroactive effect of Proposition 57 because the pendency of an amenability evaluation meant the judgment was not yet final when that measure was enacted. The superior court rejected this argument and held Proposition 57 did not apply. An appeal was filed, and this Court affirmed. We concluded the judgment became final 60 days after appellant was sentenced and did not appeal, on August 29, 2016, which was before the enactment of Proposition 57. The subsequent order for an amenability examination did not extend finality of the judgment. (People v. Brizuela-Navas (Oct. 17, 2018, A151402) [nonpub. opn.].) A subsequent appeal concerning credits was dismissed as having been taken from a nonappealable order. (People v. Brizuela-Navas (Mar. 5, 2019, A153810) [nonpub. opn.].)
Appellant served his five-year sentence at the DJJ and upon his release was taken into custody by the federal Immigration and Customs Enforcement (ICE) for deportation proceedings due to his having been convicted of an aggravated felony. He filed a motion under section 1473.7, arguing that he was not adequately advised of the immigration consequences before he pled, and that counsel should have negotiated an "immigration safe" plea.
We understand this to mean a plea to a crime that has no (or lesser) adverse immigration consequences compared to the charged offense. (People v. Tapia (2018) 26 Cal.App.5th 942, 955.) --------
A hearing was held at which appellant's defense counsel at trial did not testify. Appellant was not present, but signed a declaration stating that his trial attorney had advised him deportation was a possibility, but not that it was mandatory. He stated that if he had known deportation was mandatory, "I would have been very reluctant to plead guilty. If [trial counsel] had told me that it was mandatory, I would have asked him to try to work out a better deal that would not result in mandatory deportation." The district attorney indicated that she had discussed the matter with her supervisors and with trial counsel in her office and they were not able to reach a negotiated disposition that was more favorable to appellant than what had already been reached. The trial court denied the motion, finding appellant had not carried his burden of proving he would not have accepted the plea deal but for his counsel's incomplete advice. It also denied a motion for reconsideration.
Appellant appealed from the order denying his motion under section 1473.7.
II. DISCUSSION
Appointed counsel has filed a Wende/Anders brief raising no issues. Appellant has been advised of his right to file a supplemental brief but has not filed such a brief. (People v. Kelly (2006) 40 Cal.4th 106, 124.)
As appellate counsel notes, the Sixth District has held that a defendant is only entitled to a Wende/Anders review by an appellate court in the first appeal of right from a criminal conviction, and may not seek such review in an appeal from a post-conviction order rejecting a collateral challenge to the conviction. (People v. Serrano (2012) 211 Cal.App.4th 496, 501 (Serrano) [appeal from order denying motion to withdraw plea based on failure to advise of immigration consequences and ineffective assistance of counsel].) The Wende brief filed by counsel complies with the requirements set forth in Serrano. Appellant was informed of his right to file a supplemental brief and has not filed anything with this court. "[W]e dismiss the appeal as abandoned." (Serrano, supra, 211 Cal.App.4th at p. 498.)
Were Wende review appropriate in this case, we would find no arguable issues and affirm. The parties do not dispute that appellant was on parole when he filed his motion under 1473.7. The motion under section 1473.7 was therefore unauthorized, and it is not arguable that it should have been granted. (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1127, 1130-1132.) Although the court did not deny the motion on this ground, if the decision is correct for any reason it must be affirmed, regardless of the reasons that may have moved the trial court to its ruling. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
Appellant's remedy was to proceed with a petition for writ of habeas corpus. (People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 220-221.) Appellant has filed such a petition in this Court in In re Brizuela-Navas on habeas corpus, A159898, and by separate order we have issued an order to show cause returnable in the superior court.
III. DISPOSITION
The appeal is dismissed as abandoned.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.