Filed 8/17/15 P. v. Ocampo CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067703

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD221149)

SILVIA OCAMPO,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Kathleen M.

Lewis, Judge. Affirmed.

         Donna L. Harris, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance by Respondent.

         In August 2009, Silvia Ocampo entered a guilty plea to perjury (Pen. Code, § 118,

subd. (a)) committed in connection with false documents used to conceal her actual

citizenship in her application for a driver's license. In return for her change of plea the

remaining counts were dismissed and she was placed on summary probation. In the
change of plea form Ocampo was advised she was subject to deportation or removal if

she was not a United States citizen.

       In December 2014, Ocampo filed a motion to vacate and set aside default

judgment in which she sought to have her conviction set aside in light of adverse

immigration consequences occurring since her 2009 conviction. The trial court denied

the motion finding Ocampo was fully informed of the possible immigration consequences

of her plea and that she had unreasonably delayed in seeking relief, waiting more than

two years after the 2011 immigration actions were initiated.

       Ocampo filed a timely notice of appeal.

       Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25

Cal.3d 436 (Wende), indicating she has not been able to identify any reasonably arguable

issues for reversal on appeal. Counsel requests this court to review the record for error as

mandated by Wende. We offered Ocampo the opportunity to file her own brief. She has

done so and we will discuss it below.

                                        DISCUSSION

       As we have discussed, appellate counsel has indicated she has not been able to

identify any reasonably arguable issues for reversal on appeal. Pursuant to Anders v.

California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible,

but not arguable issue to assist the court in our review of the record:

       Whether the trial court abused its discretion in denying the motion to vacate the

conviction based on the claim of failure of counsel to adequately advise Ocampo of the

immigration consequences of her plea.

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       In her supplemental brief, Ocampo cites Padilla v. Kentucky (2010) 559 U.S. 356,

for the proposition that defense counsel may provide ineffective assistance when failing

to accurately advise a noncitizen of the immigration consequences of his or her guilty

plea. The difficulty with the supplemental brief is that the only evidence in the record

regarding the advice Ocampo received from defense counsel is in the change of plea

form, where she initialed and signed the form, which reflected the potential immigration

consequences of her plea and that she had been advised by counsel. Her motion to

"vacate the judgment" in the trial court contains some self-serving statements, but there

were no declarations from her or her counsel. There was no hearing on the fact of or the

nature of the advice she received.

       Statements in a supplemental brief or motion are not evidence. Under Strickland

v. Washington (1984) 466 U.S. 668, the burden is on the defendant to show both error by

counsel and prejudice. In the case before us there is simply no evidence in the record that

counsel was ineffective. The only evidence presented was Ocampo's change of plea

form, where she acknowledged she was facing deportation or other immigration

consequences. On this record, the supplemental brief does not raise any reasonably

arguable issues for reversal on appeal.

       We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436,

and Anders, supra, 386 U.S. 738, and have not identified any reasonably arguable issues

for reversal on appeal. Competent counsel has represented Ocampo on this appeal.




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                                 DISPOSITION

    The order denying the motion to vacate the 2009 conviction is affirmed.




                                                                       HUFFMAN, J.

WE CONCUR:


           McCONNELL, P. J.


                   AARON, J.




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