Opinion
G063203
04-19-2024
THE PEOPLE, Plaintiff and Respondent, v. FELIX DELGADILLO, Defendant and Appellant.
Michaela Dalton, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 05NF3733, Stephen J. McGreevy. Affirmed.
Michaela Dalton, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O'LEARY, P.J.
We appointed counsel to represent Felix Delgadillo 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 his 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.)
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 two issues: (1) whether the trial court erroneously denied or abused its discretion by denying the petition pursuant to Penal Code section 1203.4 (undesignated statutory references are to the Penal Code); and (2) whether the court abused its discretion by denying the petition pursuant to section 1203.41.
We gave Delgadillo 30 days to file written argument on his own behalf, and he did. In his brief, Delgadillo asserts that "the oral pronouncement [of judgment] and plea deal do not align" and the "plea deal appeared to be altered after the fact." (Capitalization omitted.) He contends that when he agreed to the terms of the plea deal, "no signature or initials in the 5 pages spoke any language agreement to accepting, a strike for the purposes of The Three Strike Law." (Some capitalization omitted.) Delgadillo argues he "was not made aware the charges were amended." He claims he understood the "charges could not be amended until after a preliminary hearing or at the approval of the judge." (Capitalization omitted.) He indicates he believed "the 364[-]day sentence was for [the] purpose[] of a misdemeanor or for the completion of a successful probation 2005-2008, charges would convert to a misdemeanor," and he was pleading guilty to a misdemeanor. (Capitalization omitted.) Finally, Delgadillo states he was told he had no appeal rights and was never told the trial court was suspending a five-year sentence.
We have reviewed the record in accordance with our obligations under Wende and Anders, and we found no arguable issues on appeal. We affirm the postjudgment order.
FACTS
In 2005, Delgadillo pleaded guilty to a violation of section 422 (criminal threats), a felony, and admitted the allegation that he committed a felony while on bail (§ 12022.1, subd. (b)). He was placed on probation and ordered to serve 364 days in the county jail. The guilty plea form indicated 365 days, but the minutes indicated 364 days. This discrepancy shortened Delgadillo's sentence by one day.
In 2023, Delgadillo filed a petition to dismiss his conviction in Orange County Superior Court case No. 05NF3733 pursuant to sections 1203.4 and 1203.41. The trial court denied the petition without prejudice. The court stated, "[Delgadillo] has not established that relief is in the interests of justice by declaration[,] letters[] of recommendation, or any other means, to show his remorse, treatment, and or rehabilitation." He timely appealed.
DISCUSSION
Section 1203.4 provides that "[w]hen a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if [he or she is] not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense, be permitted by the court to withdraw [his or her] plea of guilty."
Section 1203.41 provides that in the court's discretion, it "may permit the defendant to withdraw [his or her] plea of guilty or plea of nolo contendere and enter a plea of not guilty" and "the court shall dismiss the accusations or information against the defendant." (Id., subd. (a)(1).) Section 1203.41, subdivision (3), states, "The relief available under this section may be granted only if the defendant is not on parole or under supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, and is not serving a sentence for, on probation for, or charged with the commission of, an offense."
It appears from the trial court's reasoning that it believed it was making a discretionary ruling. It indicated Delgadillo had failed to meet his burden because he did not present a "declaration[,] letters[] of recommendation, or any other means, to show his remorse, treatment, and or rehabilitation." No such showing would have overcome the requirement that Delgadillo not be serving a sentence. Under either section, Delgadillo is not eligible for relief because, as his petition indicates, he is currently incarcerated at the Correctional Training Facility (Soledad State Prison). His incarceration renders him ineligible for relief under either section.
The issues Delgadillo raises in his supplemental brief do not relate to the appeal of the denial of his section 1203.4 petition, but nonetheless, we will address them. Delgadillo cites the discrepancy between the 365-day sentence indicated in the guilty plea form and the 364-day sentence indicated in the minute order. It is a well-established rule that a trial court's oral pronouncement of judgment generally controls over the clerk's minute order. (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3 ["When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls"].) Here, there was a discrepancy between the guilty plea form and the minute order.
Although this issue is not properly before us in this appeal. If we were to address the issue, we think Delgadillo would not want to argue the guilty plea (365 days) would trump the minute order (364 days). The discrepancy inured to his benefit. In any case, the issue is moot.
In his brief, Delgadillo asserts that "the oral pronouncement [of judgment] and plea deal do not align," and claims the "plea deal appeared to be altered after the fact." (Capitalization omitted.) He further asserts that when he agreed to the terms of the plea deal, "no signature or initials in the 5 pages spoke any language agreement to accepting, a strike for the purposes of The Three Strike Law." (Some capitalization omitted.) Nothing in the record supports these contentions.
Delgadillo also argues he "was not made aware the charges were amended." He asserts that he understood the "charges could not be amended until after a preliminary hearing or at the approval of the judge." (Capitalization omitted.) The record reflects Delgadillo was charged on September 29, 2005, with a felony violation of section 136.1, subdivision (a)(2) (count 1), and an enhancement pursuant to section 12022.1, subdivision (b) was alleged. On November 7, 2005, the first amended complaint added a felony violation of section 136.1, subdivision (a)(2) (count 2), and a felony violation of section 422 (count 3). It also alleged a section 12022.1, subdivision (b) enhancement as to counts 2 and 3. Delgadillo was properly arraigned on the first amended complaint and entered pleas of not guilty and denied the enhancements. On December 16, 2005, Delgadillo entered a plea of guilty to count 3 of the first amended complaint and was sentenced. We find no error in the amendment to the complaint.
Delgadillo asserts that when he pleaded guilty, he believed "the 364[-]day sentence was for [the] purpose[] of a misdemeanor or for the completion of a successful probation 2005-2008, charges would convert to a misdemeanor," and he was pleading guilty to a misdemeanor. (Capitalization omitted.) The record clearly indicates Delgadillo was advised he was pleading guilty to a felony. There is no indication in the record Delgadillo was ever advised the felony would automatically be converted to a misdemeanor upon successful completion of probation. Again, we find no error.
Lastly, Delgadillo indicates that when he pleaded guilty, he was told he would have no appeal rights and was never told the trial court was suspending a five-year sentence. There is nothing in the record to support either of these contentions.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: SANCHEZ, J., MOTOIKE, J.