From Casetext: Smarter Legal Research

People v. Gutierrez

California Court of Appeals, Second District, Fourth Division
Feb 3, 2011
No. B226313 (Cal. Ct. App. Feb. 3, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA010473 Mike Camacho, Judge.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


WILLHITE, Acting P. J.

Luis H. Gutierrez appeals from an order of the superior court denying his motion to dismiss his conviction pursuant to Penal Code section 1385. We affirm.

In 1990, appellant was charged by felony complaint with four counts of sale or transportation of a controlled substance, heroin (Health & Saf. Code, § 11352, subd. (a)), and one count of attempted receipt of stolen property (Pen. Code, §§ 664, 496). Appellant pled no contest to two of the narcotics counts and the stolen property count and was sentenced to state prison for 4 years 8 months. Execution of sentence was suspended, and he was placed on probation for five years.

Appellant’s probation was revoked in 1994, but execution of sentence was suspended, and he was committed to a rehabilitation facility pursuant to Welfare and Institutions Code section 3051. At the end of 1995, appellant was rejected by the California Rehabilitation Center, and in 1996, he was sentenced to state prison for 4 years 8 months.

Appellant was taken into custody by Immigration and Customs Enforcement (ICE) in November 2008. In 2010, appellant filed a motion to vacate the judgment and to dismiss his conviction under Penal Code section 1385. Appellant explained that the court dismissed his conviction under Penal Code section 1203.4 on November 30, 2009, but such a dismissal was not effective for immigration purposes, and he faced removal from the United States as a result. Appellant accordingly asked the court to dismiss his conviction pursuant to Penal Code section 1385 instead of Penal Code section 1203.4, asserting that he was not adequately advised of the immigration consequences of his plea.

The trial court held a hearing and denied the motion. The court noted that appellant was properly advised of the immigration consequences of the plea and that the court that took his plea ensured he understood the immigration consequences before accepting the plea. The trial court further reasoned that granting appellant’s motion would unfairly give him greater relief than someone who was not subject to immigration consequences.

Appellant filed a timely notice of appeal, but his request for a certificate of probable cause was denied. Nonetheless, we review the appeal because it is an appeal from an “order made after judgment, affecting the substantial rights of the party. (Pen. Code, § 1237, subd. (b).)

After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441. Counsel also informed the court that he has not had any contact with appellant, who is no longer in immigration custody. Counsel attempted to locate appellant using the ICE detainee locator, but he was unable to locate him, leading counsel to believe that appellant was deported.

On November 17, 2010, we sent a letter to appellant’s last known address, advising him that he had 30 days within which to submit any contentions or issues which he wished us to consider. No response has been received to date.

A trial court’s failure to dismiss a prior conviction pursuant to Penal Code section 1385 is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374-376.) To show an abuse of discretion, the appellant must establish that the trial court’s decision was “‘so irrational or arbitrary that no reasonable person could agree with it.’ [Citations.]” (People v. Philpot (2004) 122 Cal.App.4th 893, 904-905.)

Appellate counsel has taken reasonable steps to communicate with appellant. In any event, we have examined the entire record and discern no abuse of discretion in the denial of appellant’s motion. We are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

We concur: MANELLA, J., SUZUKAWA, J.


Summaries of

People v. Gutierrez

California Court of Appeals, Second District, Fourth Division
Feb 3, 2011
No. B226313 (Cal. Ct. App. Feb. 3, 2011)
Case details for

People v. Gutierrez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LUIS H. GUTIERREZ, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Feb 3, 2011

Citations

No. B226313 (Cal. Ct. App. Feb. 3, 2011)