Opinion
G055678
06-11-2018
THE PEOPLE, Plaintiff and Respondent, v. GENE SHUAVARNNASRI, Defendant and Appellant.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Marilyn L. George, Deputy Attorney General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16NF3105) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed in part, conditionally reversed in part, and remanded with directions. Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Marilyn L. George, Deputy Attorney General, for Plaintiff and Respondent.
We appointed counsel to represent Gene Shuavarnnasri on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Shuavarnnasri's behalf. We gave Shuavarnnasri 30 days to file written argument on his own behalf. That time has passed, and Shuavarnnasri has not filed any written argument.
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).) Shuavarnnasri did not raise any issues himself.
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 a single issue: Whether Shuavarnnasri should be allowed the opportunity to withdraw his plea since the amendment of Health and Safety Code section 11370.2, effective January 1, 2018, would reduce his maximum sentence exposure from 25 years to 10 years.
We gave Shuavarnnasri 30 days to file written argument on his own behalf. 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.)
We invited the parties to file supplemental letter briefs on the following issues: (1) Did the trial court err when it found the amendment of Health and Safety Code section 11370.2 was not retroactive and denied Shuavarnnasri's motion to withdraw his plea? (People v. Millan (2018) 20 Cal.App.5th 450); and (2) Does Shuavarnnasri's waiver of the right to appeal bar review of this issue? (People v. Mumm (2002) 98 Cal.App.4th 812).
FACTS
In December 2016, the prosecution filed an information charging Shuavarnnasri with one count of possession of cocaine for sale, in violation of Health and Safety Code section 11351. The information alleged Shuavarnnasri was ineligible for probation under Penal Code section 1203.07, subdivision (a)(11), based on three prior convictions under Health and Safety Code section 11378. The information further alleged Shuavarnnasri had suffered five prior convictions within the scope of Health and Safety Code section 11370.2, subdivision (a), and six prison priors as defined in Penal Code section 667.5, subdivision (b).
In September 2017, pursuant to a plea agreement, Shuavarnnasri pleaded guilty to the charged count, possession of cocaine with the intent to sell, and admitted the other allegations and priors. The agreement included an appeal waiver. On the same day, the trial court sentenced Shuavarnnasri to a split term of four years, two years in jail and two years under mandatory supervision. The court sentenced Shuavarnnasri to the middle term of three years for the charged count, plus one year for one of the alleged prison priors. The remaining prior related allegations were stricken for purposes of sentencing. The court imposed appropriate fines and fees and credited Shuavarnnasri with 218 days of custody credit, 109 actual days plus 109 days of conduct credit. The sentence was consistent with the terms of the plea bargain.
In November 2017, Shuavarnnasri moved to stay his sentence so counsel could file a motion to withdraw the plea. Counsel explained that since Shuavarnnasri entered his guilty plea, the law was amended effective January 1, 2018. The amendment would reduce Shuavarnnasri's maximum exposure from roughly 27 years to nine years. The court denied the motion. Shuavarnnasri filed a timely notice of appeal.
DISCUSSION
Shuavarnnasri argues, and the Attorney General agrees, this court should conditionally reverse and remand the matter to the trial court to allow Shuavarnnasri the opportunity to file a motion to withdraw his plea. We agree and remand the matter for that purpose.
DISPOSITION
We conditionally reverse the court's order denying Shuavarnnasri's motion to stay his sentence so counsel could file a motion to withdraw the plea. The matter is remanded to the Orange County Superior Court to allow Shuavarnnasri the opportunity to file a motion to withdraw his plea. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.