P. v. Hernandez CA5 ( 2013 )

Filed 3/8/13 P. v. Hernandez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F064286
Plaintiff and Respondent,
(Super. Ct. No. F11901348)
v.
MOISES ANIBAL HERNANDEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Cornell, Acting P.J., Kane, J., and Poochigian, J.
STATEMENT OF THE CASE
Appellant, Moises Anibal Hernandez, was charged in a first amended information
filed on December 6, 2011, with three counts of sexual intercourse with a child 10 years
of age or younger (Pen. Code, § 288.7, subd. (a), counts 1, 2, & 3),1 committing a lewd
act on a child under the age of 14 years (§ 288, subd. (a), count 4), and committing an act
of oral copulation or sexual penetration on a child 10 years of age or younger (§ 288.7,
subd. (b), count 5). On December 6, 2011, appellant entered into a plea agreement
wherein he would admit count 5 in exchange for the dismissal of the remaining counts
and the dismissal of three unrelated pending criminal actions.2 Appellant would receive a
sentence of 15 years to life.
Appellant executed a felony advisement, waiver of rights, and plea form
acknowledging the terms of the plea agreement, the consequences of his plea, and his
constitutional rights pursuant to Boykin/Tahl.3 Appellant waived his Boykin/Tahl rights
in the form. At the hearing, the trial court verified that appellant understood the terms of
the plea agreement, the consequences of the plea,4 and had executed and initialed the
change of plea form. The form was read to appellant and reviewed with him by a court-
certified interpreter. The court reviewed appellant’s Boykin/Tahl rights with appellant
1 All statutory references are to the Penal Code unless otherwise indicated.
2 According to the probation report, the first of the dismissed actions, case No.
F09100653, involved felony and misdemeanor domestic violence allegations. Case No.
F11100007 involved felony assault and false imprisonment allegations. The third
dismissed case, case No. F11100190, involved a felony narcotics allegation. The
allegations in all three cases occurred on different dates between 2009 and 2011.
3 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122(Boykin/Tahl).
4 Among the consequences of the plea reviewed with appellant by the trial court
were that he faced a maximum sentence of 15 years to life, he would have to register as a
sex offender, and could be deported.
2.
and appellant waived them. The parities stipulated to a factual basis for the plea.5
Appellant pled no contest to count 5.
On January 17, 2012, appellant brought an oral motion to withdraw his plea,
alleging that he was unaware that his plea would result in a prison term of 15 years to
life. At the hearing, appellant stated that he wanted to withdraw his plea and have a trial.
The prosecutor read from the relevant change of plea transcript where the trial court
explained to appellant that as a consequence of the change of plea, appellant faced a
prison term of 15 years to life. The prosecutor also read into the record language in the
change of plea form stating the same thing.
The trial court found that appellant’s assertion lacked any credibility given the
state of the record, that appellant understood the nature of the plea, and appellant had a
certified Spanish interpreter assisting him throughout the proceedings. The court found it
did not believe appellant and denied his motion to withdraw his plea. The court
sentenced appellant to prison for a term of 15 years to life. Appellant received total
custody credits of 365 days and was ordered to pay a $10,000 restitution fine. Appellant
obtained a certificate of probable cause.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also
5 On February 10, 2011, police investigators were dispatched to investigate the out-
of-control behavior of confidential victim (CV) who was then 10 years old. CV told
investigators that she had been molested by appellant, who was her mother’s ex-
boyfriend from May 1, 2009 until August 1, 2009. CV was only nine years old when the
molestations began. She described four specific incidents. In all four events, appellant
penetrated CV’s vagina or anus with his penis. Appellant denied ejaculating into CV and
admitted to the police that he only masturbated on CV. Appellant initially denied
penetrating CV. Later, he admitted he penetrated her once because the flesh is weak.
3.
includes the declaration of appellate counsel indicating that appellant was advised he
could file his own brief with this court. By letter on June 18, 2012, we invited appellant
to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
4.