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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

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       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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