People v. Tzun CA4/2 ( 2014 )

Filed 6/17/14 P. v. Tzun 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E059819
v. (Super.Ct.No. RIF147165)
JUAN ZACARIAS TZUN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark E. Johnson.
Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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I
INTRODUCTION
On December 3, 2008, a complaint charged defendant and appellant Juan Zacarias
Tzun and two co-defendants with robbery under Penal Code1 section 211. On March 26,
2009, the People moved to amend the complaint to add count 2, grand theft person, under
section 487, subdivision (c); the court granted the motion.
On the same day, defendant signed a written plea agreement and pled guilty to
count 2 for grand theft person. The remaining robbery count was dismissed at the request
of the People. Pursuant to the terms of the plea agreement, the trial court withheld
imposition of sentence and granted defendant three years of formal probation with 120
days in the Sheriff’s work program.
Almost five years later, on October 1, 2013, an ex-parte hearing was held on
defendant’s motion to set aside judgment, to withdraw plea, and to vacate the case.
Defendant’s motion raised a section 1016.5 claim that the trial court failed to properly
advise him of the immigration consequences of his plea; and a non-statutory claim that
his counsel rendered ineffective assistance of counsel because she failed to inform him of
the immigration consequences of his guilty plea, investigate the consequences, or attempt
to negotiate a plea that would not affect his immigration status. The trial court denied
defendant’s motion because too much time had elapsed for presentation of a motion to set
aside the plea.
1 All statutory references are to the Penal Code unless otherwise specified.
2
On October 9, 2013, defendant filed a timely notice of appeal from the denial of
his motion.
II
STATEMENT OF FACTS
On November 27, 2008, defendant committed grand theft person by unlawfully
taking property from Vicente Mejia, without his consent, with the intent to steal.
On March 26, 2009, when defendant pled guilty to this offense, he was not a
citizen of the United States. The trial court did not orally inform defendant of the
possible three immigration consequences listed in section 1016.5. Defendant, however,
did sign a written plea agreement and initialed the box next to the immigration
consequences statement that read as follows:
“If I am not a citizen of the United States, I understand that this conviction may
have the consequences of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.”
During the plea colloquy, the trial court questioned defendant regarding his
understanding of all the consequences listed in the written plea agreement, as follows:
“The Court: . . . I have a yellow felony plea form, two pages of probation terms,
and referral forms to the Sheriff’s Labor Program. Did you review all these forms with
your attorney and with the assistance of an interpreter?
“The Defendant: Yes.
“The Court: Did you understand everything on the forms?
“The Defendant: Yes.
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“The Court: Do you understand all of your rights as explained on the forms?
“The Defendant: Yes.
“The Court: Do you understand all of the consequences of pleading guilty as
explained on the forms?
“The Defendant: Yes.
“The Court: And did you initial and sign where indicated because you understand
them?
“The Defendant: Yes. . . .”
When defendant was eventually taken into immigration custody and held at the
Adelanto Federal Immigration Detention Facility and facing deportation based on the
current conviction, he filed a motion for order to set aside judgment and to withdraw plea
and vacate case. Defendant claimed that neither the trial court nor his counsel had
informed him of the immigration consequences of pleading guilty to grand theft person
and that he would not have pled guilty had he known of the immigration consequences.
Defendant was subsequently deported to Guatemala.
III
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to
represent him. 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 a statement of
the case, a summary of the facts, and potential arguable issues, and requesting this court
to undertake a review of the entire record.
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We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we
have conducted an independent review of the record and find no arguable issues.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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