Filed 7/21/22 P. v. Caro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

 Plaintiff and Respondent,

v.

CARLOS EDUARDO CASTANOS 

CARO,

 Defendant and Appellant.

 G060941

 (Super. Ct. No. 18CF2259)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Terri K. 

Flynn-Peister, Judge. Affirmed.

Law Office of R. Chris Lim and R. Chris Lim, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Deputy Attorney 

General, for Plaintiff and Respondent.

* * *
2

Defendant Carlos Eduardo Castanos Caro filed a motion to vacate his prior 

drug-related convictions, asserting he did not meaningfully understand the immigration 

consequences of his guilty pleas. (See Pen. Code, § 1473.7, subd. (a)(1).)1 The trial 

court denied the motion “without prejudice,” stating defendant could refile the motion if

there was “something further.”

On appeal, counsel filed an opening brief raising no arguable issues. 

(People v. Wende (1979) 25 Cal.3d 436 (Wende).) We asked for supplemental briefing as 

to whether the denial of a motion “without prejudice” is an appealable order.

Under the circumstances, we find the trial court’s denial of defendant’s 

motion was on the merits and is res judicata, so it is an appealable order. (See In re 

Lauren P. (1996) 44 Cal.App.4th 763, 768.) We have further reviewed the record and 

have found no other arguable issues, so we affirm the order of the court.

I

PROCEDURAL HISTORY

The prosecution charged defendant with five drug-related crimes. Prior to 

pleading guilty, the trial court advised defendant and a codefendant “if you’re not citizens 

of the United States, your pleas will result in deportation, denial of naturalization, or 

exclusion from admission to the United States pursuant to federal law.” The court asked 

defendant if he understood, and he said, “Yes.” Defendant initialed the same 

immigration advisement on a signed felony plea form. Counsel also signed the form and 

averred: “I have advised defendant of immigration consequences . . . .”

The trial court imposed three years of formal probation. Defendant later 

violated probation. The court sentenced defendant to two years to be “served in any 

penal institution.”

1

Further undesignated statutory references are to the Penal Code.
3

Defendant subsequently filed a motion to vacate his convictions, averring: 

“The Public Defender advised me to plead guilty. I was not advised of immigration 

consequences. I am challenging this conviction because it is currently causing me my 

removal from the United States and my court proceedings in seeking asylum. If I would 

of known this would cause me immigration consequences I would of taken this cases to 

trial by jury [(sic)].” (Capitalization omitted.)

At the hearing on the motion, appointed counsel said defendant was in 

custody in a federal immigration detention center: “I have reached out to him by way of

letter several times. I have not had any contact with him. I have looked at his motion 

and pulled up what I could. I do not believe that there are grounds for the court to grant 

the motion, but since I haven’t talked to him, I cannot ethically withdraw this motion, so 

I’m going to submit on the plea.”

The trial court said defendant’s “declaration was very thin . . . . [¶] If you 

are able to get in contact with him or he is able to provide, on his own, something further, 

it is without prejudice, so he can try it.” The court’s minute order states: “Motion denied

without prejudice.” Defendant filed a notice of appeal.

Appointed appellate counsel filed a Wende brief raising no arguable issues. 

Defendant did not file a supplemental brief on his own behalf.

II

DISCUSSION

When counsel identifies no arguable issues on appeal, the appellate court 

independently reviews the record for arguable issues. (Wende, supra, 25 Cal.3d at pp. 

441-442.) Generally, “an arguable issue on appeal consists of two elements. First, the 

issue must be one which . . . is meritorious. That is not to say that the contention must 

necessarily achieve success. Rather, it must have a reasonable potential for success. 

Second, if successful, the issue must be such that, if resolved favorably to the appellant, 
4

the result will either be a reversal or a modification of the judgment.” (People v. Johnson

(1981) 123 Cal.App.3d 106, 109.)

In this case, we asked the parties to brief whether the trial court’s denial of 

defendant’s motion without prejudice is an appealable order. (See In re Javier G. (2005) 

130 Cal.App.4th 1195, 1201 [“A reviewing court lacks jurisdiction to consider appeals 

from a nonappealable order, and has the duty to dismiss such appeals”].) We find that 

under these circumstances, the court’s ruling was an appealable order.

A defendant may file a motion to vacate a prior conviction on various 

grounds, including that: “The conviction or sentence is legally invalid due to prejudicial 

error damaging the moving party’s ability to meaningfully understand, defend against, or 

knowingly accept the actual or potential adverse immigration consequences of a 

conviction or sentence.” (§ 1473.7, subd. (a)(1).) Under such a motion, “the focus of the 

inquiry . . . is on the ‘defendant’s own error in . . . not knowing that his plea would 

subject him to mandatory deportation and permanent exclusion from the United States.’” 

(People v. Mejia (2019) 36 Cal.App.5th 859, 871.) “All motions shall be entitled to a 

hearing. Upon the request of the moving party, the court may hold the hearing without 

the personal presence of the moving party provided that it finds good cause as to why the 

moving party cannot be present.”

2

(§ 1473.7, subd. (d).) 

A defendant may appeal: “From any order made after judgment, affecting 

the substantial rights of the party.” (§ 1237, subd. (b).) “[A] postjudgment order 

‘affecting the substantial rights of the party’ (§ 1237, subd. (b)) does not turn on whether 

that party’s claim is meritorious, but instead on the nature of the claim and the court’s 

ruling thereto.” (Teal v. Superior Court (2014) 60 Cal.4th 595, 600, fn. omitted.)

2

“‘[I]f a defendant’s presence is waived or good cause exists to excuse a defendant’s 

presence, such as when a defendant is confined in federal immigration custody, then 

counsel must be appointed.’” (People v. Rodriguez (2019) 38 Cal.App.5th 971, 981, 

disapproved on other grounds in People v. Vivar (2021) 11 Cal.5th 510, 526, fn. 4.)
5

Generally, a trial court’s ruling “without prejudice” means: “Without loss 

of any rights; in a way that does not harm or cancel the legal rights or privileges of a 

party.” (Black’s Law Dict. (9th ed. 2009) p. 1740, col. 1.) For instance, a “dismissal 

without prejudice” means “[a] dismissal that does not bar the plaintiff from refiling the 

lawsuit within the applicable limitations period.” (Id. at p. 537, col. 1.)

Consequently, a trial court’s ruling “without prejudice” ordinarily does not 

affect a party’s substantial rights because the matter can simply be refiled or renewed.

(See In re Tomi C. (1990) 218 Cal.App.3d 694, 697-698 [“since the dismissal was 

without prejudice, the court’s order of dismissal was not a final judgment or 

determination”]; see also Gibson v. Savings & Loan Commissioner (1970) 6 Cal.App.3d 

269, 271-273 [trial court’s summary denial without prejudice to petitioner’s amending his 

petition and reapplying for relief was not a final, appealable order].)

However, a trial court’s “characterization of its own order . . . is not 

controlling.” (In re Lauren P., supra, 44 Cal.App.4th at p. 768 [dismissal of dependency 

petition without prejudice constituted a final judgment for purposes of appeal].) The 

question of appealability requires a determination of whether the decision “was on the 

merits and res judicata.” (Ibid.) The phrase “‘on the merits’” means the matter was 

decided “‘on substantive law grounds.’” (Compare Smart Corner Owners Assn. v. CJUF 

Smart Corner LLC (2021) 64 Cal.App.5th 439, 459.) The term “res judicata” means a 

party is precluded from litigating an identical claim in a subsequent proceeding. 

(Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1473-1474.)

Here, defendant filed a motion averring he did not meaningfully understand 

the immigration consequences of his guilty plea. Defendant stated that if he had 

understood those consequences, he would have gone to trial. The trial court denied the 

motion because the “declaration was very thin.” However, the court said if defendant is 

“able to provide, on his own, something further, it is without prejudice, so he can try it.”
6

The trial court’s ruling was on the merits because the court evaluated the 

evidence and then denied the motion on substantive law grounds. (See § 1473.7, subd. 

(a)(1).) The court’s ruling was also res judicata because defendant is precluded from 

filing an identical claim (the same motion without additional evidence) in a subsequent 

proceeding. (See Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1303-1304 

[retrial of defendant on prior conviction allegation barred was under res judicata 

principles unless prosecution presented additional evidence].)

Thus, despite the trial court’s use of the phrase “without prejudice,” we find 

the ruling was an appealable order. We have also independently reviewed the record and 

have found no other arguable issues. (See Wende, supra, 25 Cal.3d at pp. 441-442.)

Indeed, we commend the trial court for its thoughtful ruling. The court 

denied the motion based on very limited evidence, which is not an unfamiliar situation 

for most trial court judges. However, the court also ensured defendant could refile the 

motion, should he be able to provide additional evidence.

III

DISPOSITION

The trial court’s order denying defendant’s motion is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

SANCHEZ, J.