Filed 6/16/21 P. v. Ramos CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076276
v. (Super.Ct.No. FWV1203026)
MARIO DUSTIN RAMOS, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Daniel W.
Detienne, Judge. Affirmed.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Mario Dustin Ramos, Jr., appeals from an order of the
San Bernardino County Superior Court denying his petition made pursuant to subdivision
1 (a)(1) of Penal Code section 1473.71 in an effort to vacate his judgment of conviction.
We affirm.
BACKGROUND
A jury convicted defendant of assault with force likely to produce great bodily
injury (§ 245, subd. (a)(4)), and petty theft (§ 484, subd. (a)). It also found true an
enhancement of personal infliction of great bodily injury. (§ 12022.7, subd. (a).) In
addition, defendant admitted a prior prison term. (Former § 667.5, subd. (b).) He was
sentenced to seven years in state prison. This court affirmed the judgment. (People v.
Ramos (April 15, 2014, E059030) [nonpub. opn.].)
Upon his release in September 2018, defendant was transferred directly to the
custody of the United States Immigration and Customs Enforcement agency.
In June 2019, defendant filed a section 1473.7 motion. That provision, which
became effective January 1, 2017, authorizes a person no longer in criminal custody to
move to vacate a conviction or sentence that is legally invalid due to a prejudicial error
which resulted in damage to the person’s ability to understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences of entering a
guilty plea. (§ 1473.7, subd. (a)(1).) In his motion, defendant argued he was not aware
his “plea” would cause him to lose his residency status and result in mandatory
deportation from the United States. He averred his public defender did not mention those
or any other adverse immigration consequences and, based upon his understanding of
1 All further statutory references are to the Penal Code.
2 what she did tell him, he thought he would obtain an early release if he “accepted the
plea.”
The court appointed conflict counsel for defendant. At the hearing, the court
denied the motion based upon the fact defendant was convicted by a jury. Defendant
appealed, and this court appointed counsel to represent him.
DISCUSSION
Defendant’s counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, setting forth
statements of the case and facts. Counsel suggests the following potentially arguable
issue: whether the trial court erred when it denied defendant’s motion to vacate his
sentence in view of his claim that he would have tried to obtain an immigration-neutral or
other more favorable plea agreement had he been advised of the adverse immigration
consequences. Counsel also requests this court to conduct an independent review of the
entire record.
When, an indigent defendant takes a direct appeal from the judgment and
appointed appellate counsel files an opening brief that does not present an arguable issue,
it is well settled that the appellate court must offer the defendant an opportunity to submit
a personal supplemental brief and to review the entire record whether or not the
defendant files a brief. (People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
We acknowledge People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review
granted October 14, 2020, S264278, held the constitutional bases for Wende
3 procedures apply only to a defendant’s direct appeal from the judgment. We also
recognize that we have discretion to exercise our inherent supervisory powers to apply
Wende procedures to appeals from denials of postconviction relief in which appointed
appellate counsel files a no-issues brief. Accordingly, appellate courts have
traditionally afforded defendants an opportunity to personally file a supplemental brief
when appointed counsel has submitted a no-issues brief in a postjudgment appeal.
(People v. Scott (2020) 58 Cal.App.5th 1127, 1131 (Scott), review granted Mar. 17,
2021, S266853.)
Appellate courts are divided, however, with respect to whether we should
exercise our discretion to conduct an independent review of the record if a defendant
does not respond to an invitation to file a supplemental brief. (E.g., People v. Cole,
supra, 52 Cal.App.5th at pp. 1038-1039 [Second Dist., Div. Two, no independent
review of record when no supplemental brief filed, dismissed the appeal as
abandoned]; People v. Flores (2020) 54 Cal.App.5th 266, 269, 273-274 [Fourth Dist.,
Div. Three, conducted independent review of record even though defendant did not file
a supplemental brief].)
Recent opinions issued by this court reflect the division in approach to the
situation in which defendant does not file a supplemental brief. In Scott, one panel
concluded there is no reason to conduct an independent review of the record or to issue
an opinion in such a case and dismissed the appeal as abandoned. (Scott, supra, 58
4 Cal.App.5th at pp. 1131-1132 (but see dis. opn. of Miller, J.); accord People v. Figueras
(2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870.)
In People v. Gallo (2020) 57 Cal.App.5th 594 (Gallo), another panel of this court
concluded the interests of justice call for independent review of the record in
postjudgment no-issue appeals even if the defendant has not filed a supplemental brief.
(Id. at p. 599 (but see dis. opn. of Menetrez, J.); accord People v. Flores (2020) 54
Cal.App.5th 266, 269 [when an appointed counsel files a Wende brief in an appeal from a
summary denial of a section 1170.95 petition, reviewing court is not required to
independently review the entire record, but the court can and should do so in the interests
of justice]; see People v. Allison (2020) 55 Cal.App.5th 449, 456 [court of appeal has the
discretion to review the record in the interests of justice].)
We respectfully disagree with Scott and find the procedure in Gallo provides
indigent defendants an additional layer of due process while consuming comparatively
little in judicial resources.
Here, we offered defendant an opportunity to file a personal supplemental brief,
which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th
106, and in keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently
reviewed the record for potential error and find no arguable issues.
5 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
I concur:
McKINSTER J.
6 [People v. Mario Dustin Ramos, Jr., E076276]
MENETREZ, J., Dissenting.
Because this is an appeal from a postjudgment order, People v.
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Filed 6/16/21 P. v. Ramos CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076276
v. (Super.Ct.No. FWV1203026)
MARIO DUSTIN RAMOS, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Daniel W.
Detienne, Judge. Affirmed.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Mario Dustin Ramos, Jr., appeals from an order of the
San Bernardino County Superior Court denying his petition made pursuant to subdivision
1 (a)(1) of Penal Code section 1473.71 in an effort to vacate his judgment of conviction.
We affirm.
BACKGROUND
A jury convicted defendant of assault with force likely to produce great bodily
injury (§ 245, subd. (a)(4)), and petty theft (§ 484, subd. (a)). It also found true an
enhancement of personal infliction of great bodily injury. (§ 12022.7, subd. (a).) In
addition, defendant admitted a prior prison term. (Former § 667.5, subd. (b).) He was
sentenced to seven years in state prison. This court affirmed the judgment. (People v.
Ramos (April 15, 2014, E059030) [nonpub. opn.].)
Upon his release in September 2018, defendant was transferred directly to the
custody of the United States Immigration and Customs Enforcement agency.
In June 2019, defendant filed a section 1473.7 motion. That provision, which
became effective January 1, 2017, authorizes a person no longer in criminal custody to
move to vacate a conviction or sentence that is legally invalid due to a prejudicial error
which resulted in damage to the person’s ability to understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences of entering a
guilty plea. (§ 1473.7, subd. (a)(1).) In his motion, defendant argued he was not aware
his “plea” would cause him to lose his residency status and result in mandatory
deportation from the United States. He averred his public defender did not mention those
or any other adverse immigration consequences and, based upon his understanding of
1 All further statutory references are to the Penal Code.
2 what she did tell him, he thought he would obtain an early release if he “accepted the
plea.”
The court appointed conflict counsel for defendant. At the hearing, the court
denied the motion based upon the fact defendant was convicted by a jury. Defendant
appealed, and this court appointed counsel to represent him.
DISCUSSION
Defendant’s counsel has filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, setting forth
statements of the case and facts. Counsel suggests the following potentially arguable
issue: whether the trial court erred when it denied defendant’s motion to vacate his
sentence in view of his claim that he would have tried to obtain an immigration-neutral or
other more favorable plea agreement had he been advised of the adverse immigration
consequences. Counsel also requests this court to conduct an independent review of the
entire record.
When, an indigent defendant takes a direct appeal from the judgment and
appointed appellate counsel files an opening brief that does not present an arguable issue,
it is well settled that the appellate court must offer the defendant an opportunity to submit
a personal supplemental brief and to review the entire record whether or not the
defendant files a brief. (People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
We acknowledge People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review
granted October 14, 2020, S264278, held the constitutional bases for Wende
3 procedures apply only to a defendant’s direct appeal from the judgment. We also
recognize that we have discretion to exercise our inherent supervisory powers to apply
Wende procedures to appeals from denials of postconviction relief in which appointed
appellate counsel files a no-issues brief. Accordingly, appellate courts have
traditionally afforded defendants an opportunity to personally file a supplemental brief
when appointed counsel has submitted a no-issues brief in a postjudgment appeal.
(People v. Scott (2020) 58 Cal.App.5th 1127, 1131 (Scott), review granted Mar. 17,
2021, S266853.)
Appellate courts are divided, however, with respect to whether we should
exercise our discretion to conduct an independent review of the record if a defendant
does not respond to an invitation to file a supplemental brief. (E.g., People v. Cole,
supra, 52 Cal.App.5th at pp. 1038-1039 [Second Dist., Div. Two, no independent
review of record when no supplemental brief filed, dismissed the appeal as
abandoned]; People v. Flores (2020) 54 Cal.App.5th 266, 269, 273-274 [Fourth Dist.,
Div. Three, conducted independent review of record even though defendant did not file
a supplemental brief].)
Recent opinions issued by this court reflect the division in approach to the
situation in which defendant does not file a supplemental brief. In Scott, one panel
concluded there is no reason to conduct an independent review of the record or to issue
an opinion in such a case and dismissed the appeal as abandoned. (Scott, supra, 58
4 Cal.App.5th at pp. 1131-1132 (but see dis. opn. of Miller, J.); accord People v. Figueras
(2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870.)
In People v. Gallo (2020) 57 Cal.App.5th 594 (Gallo), another panel of this court
concluded the interests of justice call for independent review of the record in
postjudgment no-issue appeals even if the defendant has not filed a supplemental brief.
(Id. at p. 599 (but see dis. opn. of Menetrez, J.); accord People v. Flores (2020) 54
Cal.App.5th 266, 269 [when an appointed counsel files a Wende brief in an appeal from a
summary denial of a section 1170.95 petition, reviewing court is not required to
independently review the entire record, but the court can and should do so in the interests
of justice]; see People v. Allison (2020) 55 Cal.App.5th 449, 456 [court of appeal has the
discretion to review the record in the interests of justice].)
We respectfully disagree with Scott and find the procedure in Gallo provides
indigent defendants an additional layer of due process while consuming comparatively
little in judicial resources.
Here, we offered defendant an opportunity to file a personal supplemental brief,
which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th
106, and in keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently
reviewed the record for potential error and find no arguable issues.
5 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
I concur:
McKINSTER J.
6 [People v. Mario Dustin Ramos, Jr., E076276]
MENETREZ, J., Dissenting.
Because this is an appeal from a postjudgment order, People v. Wende (1979) 25
Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 do not require us to read the
entire record ourselves to look for arguable grounds for reversal. (People v. Thurman
(2007) 157 Cal.App.4th 36, 45; People v. Serrano (2012) 211 Cal.App.4th 496, 498.)
Appointed appellate counsel filed a brief raising no issues, and defendant was given the
opportunity to file a personal supplemental brief but declined. The appeal should
accordingly be dismissed as abandoned. (People v. Cole (2020) 52 Cal.App.5th 1023,
1039-1040; People v. Scott (2020) 58 Cal.App.5th 1127, 1129-1130.) Moreover,
appellant was convicted by jury trial, not by plea of guilty or no contest.
Subdivision (a)(1) of Penal Code section 1473.7 consequently has nothing to do with
appellant, so reading every page of the record to look for reversible error is pointless and
benefits no one.
MENETREZ J.