P. v.
Filed 3/20/13 P. v. Walker CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and
Respondent,
A135700
v.
(
ROGER LEE WALKER, Super.
Ct.
Defendant and
Appellant.
_____________________________________/
Appellant Roger Lee Walker appeals
from the trial court’s denial of his motion to set aside and/or withdraw his
plea of no contest to indecent exposure (Pen. Code, § 314).
Appellant has asked this court to conduct an
We dismiss
the appeal as abandoned in accordance with People
v. Serrano (2012) 211 Cal.App.4th 496 (Serrano).
FACTUAL AND
PROCEDURAL BACKGROUND
In 2009, appellant pleaded no
contest to indecent exposure (§ 314). He
waived his right to appeal the conviction and to “make any motions†in the
case. The trial court determined
appellant knowingly and voluntarily waived his constitutional rights and
sentenced him to five years felony probation and 10 months in jail. The court ordered appellant to register
pursuant to section 290 as a condition of probation.
In December 2010, appellant
admitted violating probation by failing to register pursuant to section 290 and
the court sentenced him to 16 months in custody, all of which appellant had
already served. The court ordered
appellant released from custody and placed on parole. The court told appellant, “[i]f you violate
parole, you can go back to prison for up to a year for each violation.†In March 2011, the prosecution filed a
petition to commit appellant as a Sexually Violent Predator (SVP) under Welfare
and Institutions Code section 6600 et seq.
On January 28, 2012, two days before appellant was to be
released from parole, the Board of Parole Hearings placed a 45-day hold on
appellant under the Sexually Violent Predator Act (Welf. & Inst. Code, §
6601.3). In February 2012, appellant
moved to set aside the no contest plea, to vacate the judgment, to set aside
the admission of the probation violation, and to dismiss the forthcoming
petition for commitment as a SVP. He
argued the plea was not knowing and voluntary because he was unaware of the
potential of an indeterminate SVP commitment at the time of the plea.
In May 2012, appellant moved to
dismiss the SVP petition as untimely. He
also argued the Board of Prison Terms did not have jurisdiction to issue the
45-day hold pursuant to Welfare and Institutions Code section 6601.3. Appellant supported the motions to set aside,
withdraw his plea, and dismiss the SVP petitions with a declaration averring he
would not have pleaded no contest to indecent exposure or admitted a probation
violation if he had known he “would be exposed to potential Sexually Violent
Predator proceedings as a result of a return to Department of Corrections
custody. . . .†He further testified his
attorney did not advise him of “these consequences†and that he did not commit
indecent exposure but pleaded no contest “on the advice of [his] counsel.†In a supplemental memorandum of points and
authorities, appellant argued the plea should be set aside, the judgment
vacated, and the SVP petition dismissed because he was denied equal protection
and did not receive effective assistance of counsel.
The prosecution opposed the
motions. It argued the court could not
set aside appellant’s plea and could not set aside his probation
violation. The prosecution also argued,
pursuant to People v. Moore (1998) 69
Cal.App.4th 626 (Moore), that a
defendant may not withdraw his plea on the ground that he or she was not
advised of the potential SVP consequences because “those consequences are not a
direct or penal consequence of his plea.â€
Finally, the prosecution contended dismissal of the SVP petition was not
an appropriate remedy. Appellant replied
and the court heard argument on the motions.
On June 1, 2012, the court denied as untimely appellant’s motion to
withdraw the plea, vacate the judgment, and set aside the probation violation
admission. The court also concluded that
under Moore, the possibility of SVP
proceedings is “generally considered a secondary indirect consequence, not a
direct or primary penal consequence.â€
The court denied the motion to dismiss the SVP petition, concluding it
was “properly filed.â€
Appellant appealed from the order
denying his motion to withdraw the plea and to vacate the judgment, and the
order denying his “petition for a writ of error coram nobis.†We appointed
counsel to represent appellant on appeal.
Counsel presents no argument for reversal, but asks this court to
conduct an independent review of the record in accordance with
Counsel informed appellant that he had the right to file a
but appellant declined to do so.
DISCUSSION
We conclude appellant is not
entitled to Wende review pursuant to
Appellate District. In
to, among other things, burglary of a vehicle.
The trial court suspended imposition of sentence and placed the
defendant on probation. Two years later,
the defendant pleaded no contest to another felony and the court suspended
imposition of sentence and placed him on probation. Later, the defendant violated probation and
the court imposed the previously suspended sentence and ordered him to serve
three years in prison. (
498-499.) The defendant appealed from
the judgment but voluntarily dismissed the appeal before filing an opening
brief. (Id. at p. 499.)
After the defendant completed his
sentence, the federal government began deportation
proceedings. The defendant then
moved to vacate his conviction, claiming “his plea was not voluntary and
intelligent†because, among other things, he did not “fully understand the
consequences of his pleas†and because trial counsel failed to advise him and
defend him “against immigration consequences†of his pleas. (Serrano,
supra, 211 Cal.App.4th at p. 499.)
The trial court denied the motion and the defendant appealed. “Appointed counsel filed an
and the facts but raise[d] no specific issues.â€
(Ibid.)
The Serrano court considered whether it “was required to conduct a
from a postconviction proceeding and not a first appeal of right.†(Serrano,
supra, 211 Cal.App.4th at p. 499, fn. omitted.) The court balanced three factors: “‘(1) the
private interests at stake; (2) the state’s interests involved; and (3) the
risk that the absence of the procedures in question will lead to an erroneous
resolution of the appeal.’†(
502, quoting Conservatorship of
appeals].) In doing so, the court noted
the “dire consequences†for the defendant if “the underlying judgment†were not
vacated, and the “‘weighty’ nature†of the defendant’s interest in “just
appellate resolution[.]†(
990-991.) The Serrano court, however, determined the defendant was not entitled
to Wende review because his
“conviction has long been final and his sentence served. Although he chose to dismiss his first appeal
of right, he could have obtained a review of his conviction had he so
chosen. In each appeal, he has been
afforded the right to appointed counsel, and each of those counsel were supervised
by this district’s appellate project.
[Citation.] Given the multitude
of protections already afforded defendant, the risk of erroneous appellate
resolution without Wende review for a
collateral attack on the judgment is minute.â€
(Id. at p. 502, fn.
omitted.) The court also concluded the
“minute risk†was “outweighed by important state interests, including securing
a just appellate resolution, reducing procedural costs and burdens, and
concluding the proceedings both fairly and expeditiously.†(Id.
at p. 503.)
The Serrano court noted that “[w]hile the California Supreme Court has
not specifically considered the availability of Anders/Wende review in a postconviction collateral attack on a
judgment, the United States Supreme Court’s decision in [Pennsylvania v. Finley
[(1987) 481 U.S. 551 (Finley)] is
squarely on point. There, as in the case
before us, the defendant was attacking her conviction collaterally, long after
it was final. In its analysis of
recognized and relied on the high court’s restriction of Anders review to the ‘first
appeal of right’ in a criminal prosecution.†(Serrano,
supra, 211 Cal.App.4th at p. 501,
quoting Ben C., supra, 40 Cal.4th at p. 537.)
Serrano then held: “[w]here a
defendant has been afforded all the constitutional protections of a first
appeal of right, including the right to Wende
review where appropriate, we find that he is not entitled to
appeals, including collateral attacks on the judgment. The extension of Anders/[W]ende is thus not required. [Citation.]â€
(Id. at p. 503.) The court dismissed the appeal. (Id.
at p. 504.)
Here as in Serrano, appellant is not entitled to Wende review on his collateral attack on the judgment. (Serrano,
supra, 211 Cal.App.4th at p. 502, fn. omitted.) The consequences facing appellant if the
underlying conviction is not vacated may be “dire†and appellant may have a
“‘weighty’†interest in a “just appellate resolution.†But his “conviction has long been final and
his sentence served.†(
Although appellant did not dismiss his first appeal as in
review of his conviction had he so chosen.â€
(Ibid.) “Given the multitude of protections already
afforded [appellant], the risk of erroneous appellate resolution without
the judgment is minute†and this risk is “outweighed by important state
interests†such as “securing a just appellate resolution, reducing procedural
costs and burdens, and concluding the proceedings both fairly and
expeditiously.†(Id. at pp. 502, 503, fn. omitted.)
The Wende brief filed by counsel complies with the requirements set
forth in Serrano. Appellant was informed of his
has not filed anything with this court.
Therefore, “we dismiss the appeal as abandoned.†(Serrano,
supra, 211 Cal.App.4th at p. 498.) 
DISPOSITION
The appeal
is dismissed as abandoned.
_________________________
Jones,
P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
name="_ftn1" title="">[1] Unless
otherwise noted, all further statutory references are to the Penal Code. The lower court and the parties inadvertently
referred to section 314.1 — rather than to section 314 — throughout the
proceedings. (See In re King (1984) 157 Cal.App.3d 554, 556, fn. 1, overruled on
another point in People v. Noriega
(2004) 124 Cal.App.4th 1334 (referring to section 314, subd. (1) as “314.1â€).)
The prosecution argued appellant
qualified as a SVP because he committed the qualifying offenses of rape in 1976
(§ 261) and assault with intent to commit rape (§ 220) in 1982 as set forth in
Welfare and Institutions Code section 6600, subdivision (b) and because he
suffers from a mental disorder that makes him likely to engage in sexually
violent criminal behavior unless he receives treatment in custody. The court issued a detention order and set a
date for a probable cause hearing.
