Filed 9/3/20 P. v. Plascencia CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ENRIQUE GUSTAVO 

PLASCENCIA,

Defendant and Appellant.

 B301962

 (Los Angeles County

 Super. Ct. No. NA108205)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Gary J. Ferrari, Judge. Dismissed.

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_____________________
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FACTUAL AND PROCEDURAL BACKGROUND

On January 10, 2019, Enrique Gustavo Plascencia pleaded 

no contest and was convicted of a charge of kidnaping (Pen. Code, 

§ 207, subd. (a)) and admitted a prior prison term allegation (id., 

§ 667.5, subd. (b).) The trial court sentenced him to state prison 

for six years, consisting of five years for the kidnaping conviction

and one year for the enhancement for a prior prison term.

On September 17, 2019, Plascencia filed a petition for 

habeas corpus in superior court. He asked the court to strike his 

prior prison term enhancement under Senate Bill No. 136 (2019-

2020 Reg. Sess.). The trial court denied the petition.

On October 21, 2019, Plascencia filed a timely notice of 

appeal purporting to appeal from this denial of his habeas corpus 

petition.

We appointed counsel to represent Plascencia on appeal, 

and on June 4, 2020, counsel filed a brief pursuant to People v. 

Wende (1979) 25 Cal.3d 436, requesting that this court 

independently review the entire record on appeal for arguable 

issues because appointed counsel discovered none on his own 

review. On June 5, 2020, we directed counsel to send Plascencia 

a copy of his Wende brief and the appellate record. On the same 

date, we also sent Plascencia a letter informing him he had 30 

days from the date of the letter to file a supplemental brief

raising any contentions or issues he wished us to consider.

Plascencia did not file a supplemental brief.

DISCUSSION

As an initial matter, we note that a denial of a habeas 

corpus petition is not appealable. (See Briggs v. Brown (2017) 3 

Cal.5th 808, 836.) The proper procedure is for the petitioner to 
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file a new habeas corpus petition with the Court of Appeal. 

(Ibid.)

Moreover, because Plascencia’s appeal is from an order 

denying post-conviction relief, the procedural protections 

established in People v. Wende (1979) 52 Cal.3d 436 do not apply. 

(People v. Cole (2020) 52 Cal.App.5th 1023, 1034.) In Cole, 

Division Two of this court recently explained that in a criminal 

appeal from a post-conviction order to which Wende does not 

apply, counsel who find no arguable issues are required to “file a 

brief with the Court of Appeal setting forth (1) a brief statement 

of the pertinent procedural history of the case, (2) a brief 

summary of the pertinent facts, (3) counsel’s declaration that 

there are no reasonably arguable issues to present on appeal, and 

(4) counsel’s affirmation that he or she remains ready to brief any 

issues at the request of the Court of Appeal.” (Id. at p. 1038.) 

Counsel in this case fulfilled these requirements.

The appeal is subject to dismissal for two reasons. First, in 

noncapital cases, there is “no right to appeal from a superior 

court denial of habeas corpus relief.” (Briggs v. Brown, supra, 3 

Cal.5th at p. 836; accord, Robinson v. Lewis (2020) 9 Cal.5th 883, 

895; In re Clark (1993) 5 Cal.4th 750, 767, fn. 7.) Because the 

order is nonappealable, the appeal from that order must be 

dismissed. (People v. Fuimaono (2019) 32 Cal.App.5th 132, 134, 

135.)

Second, because Wende does not apply and Plascencia did 

not file a supplemental brief, we deem the appeal to be 

abandoned. (See People v. Cole, supra, 52 Cal.App.5th at p. 1039; 

People v. Serrano (2012) 211 Cal.App.4th 496, 504.)
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DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED

SINANIAN, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.