                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 1 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ARMANDO J. MENA, AKA A. J. Mena,                No.    17-55524

                Petitioner-Appellant,           D.C. No.
                                                5:13-cv-00490-CJC-AFM
 v.

ROSEMARY NDOH,                                  MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                       Argued and Submitted April 10, 2019
                              Pasadena, California

Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,** Judge.

      Armando Mena appeals the district court’s denial of his petition for habeas

relief. In 2011, Mena was indicted for eleven counts of committing a lewd act

upon a child under fourteen years of age in violation of California Penal Code §

288(a). In exchange for dropping those eleven counts, Mena pled guilty to five


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
new counts of committing a forcible lewd act upon a child under fourteen in

violation of California Penal Code § 288(b)(1). Mena’s trial counsel tried to

discourage him from entering into this plea agreement, but Mena insisted on

pleading guilty because he “[did not] want to put . . . the alleged victims through

the trial process.” Although Mena’s trial counsel did not join in Mena’s guilty

plea, Mena verified that he had spoken with his trial counsel about the plea

agreement and that he understood the consequences of his plea. The trial court did

not discuss the elements of the counts to which Mena pled guilty during the plea

colloquy. Mena was sentenced to a forty-year state prison term.

      Following his sentencing, Mena sought to appeal his guilty plea on the basis

that his trial counsel had provided ineffective assistance. Although Mena received

the necessary certificate of probable cause to appeal his guilty plea, his appellate

counsel filed a brief under the authority of People v. Wende, 600 P.2d 1071 (Cal.

1979), representing that there were no arguable issues on appeal. The court of

appeal affirmed. Mena sought state and federal habeas relief, asserting that his

plea was involuntary in a constitutional sense and that he had been rendered

ineffective assistance by trial and appellate counsel. Mena exhausted his claims in

state court, and the district court denied Mena’s habeas petition.

      We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we

affirm.


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1.    Mena claims that his guilty plea was not voluntary in a constitutional sense

because he did not receive an explanation of the force element of the § 288(b)(1)

charges. In Henderson v. Morgan, the Supreme Court held that a defendant’s

guilty plea could not be voluntary in a constitutional sense “unless the defendant

received ‘real notice of the true nature of the charge against him,’” including an

explanation of each element of the crime. 426 U.S. 637, 645 (1976) (quoting

Smith v. O’Grady, 312 U.S. 329, 334 (1941)).

      The Supreme Court noted, however, that a plea would be found involuntary

only in unique circumstances. Id. at 647. Where the record contains an

explanation of the charge by the trial judge or a representation by defense counsel

that counsel explained the elements of the charge to the defendant, the guilty plea

is not involuntary under Henderson. Id. Even if neither of these representations is

in the record, “it may be appropriate to presume that in most cases defense counsel

routinely explain the nature of the offense in sufficient detail to give the accused

notice of what he is being asked to admit.” Id.

      It would not have been objectively unreasonable for the California Supreme

Court to apply the Henderson presumption here. Mena verified on his plea form

that he “had sufficient time to consult with [his] attorney concerning [his] intent to

plead guilty/no contest to the [§ 288(b)(1)] charges” and that “[his] lawyer ha[d]

explained everything . . . to [him].” Mena again verified to the district court that


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he had discussed the plea offer with his trial counsel. Although the record contains

neither an express explanation of the element of force by the trial court nor a

representation by trial counsel that he explained the force element to Mena, the

California Supreme Court could have reasonably presumed that Mena’s trial

counsel explained the elements of the § 288(b)(1) charges. See Henderson, 426

U.S. at 647. Furthermore, because the trial court conducted an evidentiary hearing

to ascertain whether Mena understood the plea, Mena is not entitled to relief on the

basis that the fact-finding process was unreasonable. Thus, the district court

properly denied habeas relief on this ground.

2.    Mena next contends that his trial counsel provided ineffective assistance by

failing to explain the force element of the § 288(b)(1) charges. To demonstrate

ineffective assistance of counsel, “the defendant must show that counsel’s

performance was deficient” and that this deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The probability of

prejudice must be “sufficient to undermine confidence in the [case’s] outcome.”

Hurles v. Ryan, 752 F.3d 768, 782 (9th Cir. 2014). Here, even if we assume

deficient performance, Mena has not demonstrated that it was objectively

unreasonable for the California Supreme Court to determine that there was no

prejudice. Mena pled guilty for reasons unrelated to the nature of the charges

against him and in spite of his trial counsel’s advice not to plead guilty. Because


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the California Supreme Court could have reasonably determined that Mena was not

prejudiced by his counsel’s performance, the district court did not err in denying

habeas relief on this claim.

3.    Mena lastly argues that his appellate counsel provided ineffective assistance

by filing a Wende brief on direct appeal. Although a defendant has a right to be

represented effectively by counsel on direct appeal, appellate counsel is not

required to make arguments that are frivolous as a matter of professional judgment.

See Jones v. Barnes, 463 U.S. 745, 751–52 (1983). In People v. Wende, the

California Supreme Court established a constitutionally sufficient procedure by

which appellate counsel may inform the court of the nature of an appeal and

decline to brief issues judged to be frivolous. See Smith v. Robbins, 528 U.S. 259,

265 (2000); Wende, 600 P.2d at 1073–74. Appellate counsel’s decision to file a

Wende brief is reviewed under Strickland. Smith, 528 U.S. at 285.

      As discussed previously, the California Supreme Court could have

reasonably determined that neither Mena’s involuntary plea claim nor his

ineffective assistance of trial counsel claim constituted a viable appellate issue.

Thus, it was not objectively unreasonable for the California Supreme Court to

determine that Mena’s appellate counsel did not perform deficiently by filing a

Wende brief—even though Mena was granted a certificate of probable cause on his

ineffective assistance of trial counsel claim. See Delgado v. Lewis, 223 F.3d 976,


                                           5
981 (9th Cir. 2000) (noting that while filing a Wende brief after the defendant

receives a certificate of probable cause is unusual, deficient performance stems

from not briefing “very viable appellate issues”). Habeas relief was properly

denied on this ground.

      AFFIRMED.




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