Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18HF1087) OPINION Appeal from a judgment of the Superior Court of Orange County, Elizabeth G. Macias, Judge. Affirmed. Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
We appointed counsel to represent Edgar Carrillo Guillen on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court she found no issues to argue on Guillen's behalf.
Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124 (Kelly).)
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised one issue: Can Guillen seek a motion to vacate under Penal Code section 1473.7? Guillen was given 30 days to file written argument on his own behalf. Thirty days have passed, and Guillen has not filed any written argument.
We have reviewed the record in accordance with our obligations under Wende. We found no arguable issues on appeal. We affirm the judgment.
On August 27, 2018, Guillen entered a guilty plea to assault likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(4). In December 2018, the trial court suspended imposition of sentence and placed Guillen on three years of formal probation with various terms and conditions.
In 2019, Guillen filed a motion to vacate his conviction under Penal Code section 1473.7. The trial court denied the motion to vacate his conviction without prejudice. The court concluded Penal Code section 1473.7 did not apply to Guillen because he remains on probation, stating "[p]ersons on probation or parole are considered to be in 'constructive custody.'" Guillen filed a timely notice of appeal.DISCUSSION
Penal Code section 1473.7 provides that "[a] person who is no longer in criminal custody may file a motion to vacate a conviction or sentence." A person who is on probation is in "constructive custody" and is not eligible for section 1473.7 relief. (People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 221.)
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.