Filed 2/18/21 P. v. Hernandez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301728
(Super. Ct. No. 1486420)
Plaintiff and Respondent, (Santa Barbara County)
v.
VIDAL ALEJANDRO
HERNANDEZ,
Defendant and Appellant.
Vidal Alejandro Hernandez pled no contest to
corporal injury of a child and was placed on probation for three
years. (Pen. Code,1 273d, subd. (a).) Hernandez moved to vacate
his conviction on the ground that he did not meaningfully
understand the immigration consequences at the time he entered
the plea. (§ 1473.7.) The trial court denied the motion. We
affirm.
1 Further unspecified statutory references are to the Penal
Code.
FACTUAL AND PROCEDURAL HISTORY
Hernandez is a legal permanent resident of the
United States. In 2016, he struck his eight-year-old son in the
face with a boot. He pled no contest to corporal injury of a child.
Hernandez signed a plea form and initialed a box
next to the following advisement: “I understand that if I am not
a citizen of the United States, my plea of guilty or no contest may
or, with certain offenses, will result in my deportation, exclusion
from admission and reentry to the United States, and denial of
naturalization and amnesty, and that the appropriate consulate
may be informed of my conviction.” He was represented by
counsel at the time of his plea.
The plea form also advised: “If you have an attorney
and have questions about anything in this form, ask your
attorney.” Hernandez initialed a box indicating that he “had a
full opportunity to discuss with [his] attorney . . . the
consequences of this plea” and that he had “no further questions
for the court or for [his] attorney with regard to [his] plea.”
Hernandez’s attorney signed the plea form, attesting that he
“reviewed this form with [Hernandez].” A Spanish interpreter
also signed the form, attesting that she “truly interpreted this
form to [Hernandez]” and that he stated he “understood the
contents on the form.”
A month after his plea, Hernandez was taken into
custody by the United States Department of Homeland Security.
He was notified that he was going to be placed in removal
proceedings.
In 2019, Hernandez filed the motion to vacate his
conviction. Hernandez declared that trial counsel did not
recommend he consult with an immigration attorney regarding
2
the immigration consequences of his plea and that the judge did
not advise him of the “negative immigration consequences” of his
plea. Hernandez declared that he “failed to meaningfully
understand the immigration consequences” of his conviction, and
had he known of the consequences, he would not have entered a
no contest plea. The trial court denied the motion.
DISCUSSION
Hernandez contends the trial court erred when it
denied his section 1473.7 motion because he did not meaningfully
understand the immigration consequences of his plea. His
contention lacks merit.
Section 1473.7, subdivision (a)(1), provides that a
person who is no longer in criminal custody may file a motion to
vacate a conviction if it 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 plea of guilty or nolo
contendere. A finding of legal invalidity may, but need not,
include a finding of ineffective assistance of counsel.” The burden
is on the defendant to show, by a preponderance of the evidence,
that they are entitled to the requested relief. (§ 1473.7, subd.
(e)(1).) We review for abuse of discretion. (People v. Perez (2020)
47 Cal.App.5th 994, 997.)2
2 Hernandez argues the correct standard of review is de
novo. We disagree. Where, as here, the defendant is not
claiming a violation of a constitutional right, the standard of
review is abuse of discretion. (See People v. Ogunmowo (2018) 23
Cal.App.5th 67, 75-76 [de novo standard applies where the
defendant claimed a “violation of a constitutional right (the right
to effective assistance of counsel), [but] not a statutory
3
Hernandez was informed of the potential
immigration consequences at the time he entered his plea. He
initialed his name next to statements stating that he understood
and agreed with the immigration consequences and that he had
the opportunity to discuss them with his trial counsel.
Hernandez did not present any evidence, other than his own
declaration, that he did not understand the potential
immigration consequences. (See People v. Tapia (2018) 26
Cal.App.5th 942, 955 (Tapia) [a defendant’s self-serving
declaration was insufficient to show he was not properly advised
of the immigration consequences of his plea]; see also Lee v.
United States (2017) ___ U.S. ___, ___ [137 S.Ct. 1958, 1967]
[“Courts should not upset a plea solely because of post
hoc assertions from a defendant about how he would have
pleaded but for his attorney’s deficiencies”].) Here, “there is no
evidence, only speculation, that an ‘immigration safe’ plea could
have been negotiated” or that Hernandez would have avoided
immigration consequences had he proceeded with trial. (Tapia,
supra, at p. 955.) Because the record does not show prejudicial
error, the trial court did not err in denying the motion to vacate.
violation”].) In any event, the same result would follow here,
regardless of which standard we apply.
4
DISPOSITION
The order denying the section 1473.7 motion to
vacate is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
5
Patricia L. Kelly, Judge
Superior Court County of Santa Barbara
______________________________
Karlin and Karlin and Marc. A. Karlin for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.