Filed 11/3/23 P. v. Hernandez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B324965
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. PA049400)
v.
RICARDO RAFAEL HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
David Walgren, Judge. Affirmed.
Edgar J. Cervantes for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Kenneth C. Byrne, Supervising Deputy Attorney General, and Blake
Armstrong, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Ricardo Rafael Hernandez (Hernandez) pled no contest to willful
infliction of corporal injury on a spouse or cohabitant. Years later, he
consulted with an immigration attorney to become a United States citizen.
He was informed that he would be unable to obtain citizenship due to his
conviction. Hernandez then moved to vacate his conviction (Pen. Code,
§ 1473.7),1 claiming he failed to meaningfully understand or defend against
the adverse immigration consequences of his conviction. The trial court
denied the motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Charge
On September 20, 2004, the Los Angeles County District Attorney’s
Office (People) filed a felony complaint charging Hernandez with one count of
corporal injury to spouse/cohabitant/child’s parent (Pen. Code, § 273.5, subd.
(a)). Hernandez was not a United States citizen at the time of the charge.
B. The Plea and Conviction
At his plea hearing on September 30, 2004, Hernandez pled no contest
to the sole charge against him. Justine Esack (Esack), a Los Angeles County
Deputy Public Defender, represented Hernandez at the hearing.
Before entering his plea, Hernandez signed a felony advisement of
rights, waiver, and plea form (Tahl waiver). (In re Tahl (1969) 1 Cal.3d 122.)
The Tahl waiver stated the proposed disposition was a sentence of
probation, under court-imposed terms. The proposed term included serving
up to 365 days in county jail. The Tahl waiver also included Hernandez’s
1 All unspecified statutory references are to the Penal Code.
2
acknowledgment that Esack informed him “if [he] ple[]d . . . no contest to the
above-listed charge(s),” the proposed disposition would be available.
Hernandez initialed that section.
Hernandez also initialed the “Immigration Consequences” section of the
Tahl waiver. The section provided, “I understand that if I am not a citizen of
the United States, I must expect my plea of guilty or no contest will result in
my deportation, exclusion from admission or reentry to the United States,
and denial of naturalization and amnesty.”
Hernandez also initialed the paragraph that stated, “Prior to entering
this plea, I have had a full opportunity to discuss with my attorney . . . the
consequences of my plea.” The form continued, “I have no further questions
of the Court or of counsel with regard to my plea(s) and admission(s) in this
case.”
Hernandez also signed under a paragraph that stated, “I have read and
initialed each of the paragraphs above and discussed them with my attorney.
My initials mean that I have read, understand and agree with what is stated
in the paragraph.”
Esack signed the “Attorney Statement” of the waiver, acknowledging, “I
have reviewed this form with [Hernandez]. I have explained each of
[Hernandez’s] rights to [him] and answered all of his . . . questions with
regard to those rights and this plea . . . and the consequences of the plea.”
Esack and Hernandez both signed the Tahl waiver on the day of the plea
hearing.
At the hearing, the court questioned Hernandez about the signed and
initialed waiver. The court showed Hernandez the four-page form and
Hernandez confirmed he had read, signed, and initialed the waiver after
discussing it with his attorney.
3
The court advised Hernandez of the immigration consequences of his
plea. The court explained, “If you are not a citizen of the United States, this
conviction may result in you being deported, excluded from admission, or
denied naturalization pursuant to the laws of the United States.” The court
asked Hernandez if he understood the advisement and Hernandez replied
that he did.
The court asked Hernandez if he had enough time to talk with Esack
about the case, his constitutional rights, and any defenses. Hernandez again
replied “yes.” The court asked Hernandez whether he had any questions for
Esack. Hernandez replied he did not.
The court accepted Hernandez’s no contest plea. The court signed the
Tahl waiver, finding “the defendant’s plea(s) and admission(s) are freely and
voluntarily made with an understanding of the . . . consequences thereof.”
On November 1, 2004, the court held a hearing and suspended
imposition of Hernandez’s sentence. The court placed Hernandez on three
years’ formal probation, including 180 days in local custody.
C. The Motion to Vacate and Opposition
On May 18, 2022, Hernandez filed a motion to vacate his plea under
section 1473.7, subdivision (a)(1). He stated in his supporting declaration
that he had recently met with an immigration attorney about becoming a
United States citizen. The immigration attorney advised him that his
conviction could impact his ability to get citizenship. He subsequently hired
Rebecca Martin (Martin) as counsel to file the motion to vacate and represent
him in the motion proceedings.
Hernandez sought to vacate his conviction on the ground that he was
unable to “meaningfully understand or defend against the immigration
4
consequences of his plea.” He contended Esack told him, “if I pled, the case
would be resolved.” Hernandez also stated he decided to plead no contest,
based on Esack’s erroneous advice and his own misunderstanding of the law.
The People opposed the motion on the grounds that Hernandez did not
establish by a preponderance of the evidence that he misunderstood the
immigration consequences, or that Esack failed to properly advise him of the
consequences.
D. The Motion to Vacate Hearing
On October 13, 2022, the court held a hearing on the motion. Martin
represented Hernandez at the hearing. Hernandez was the only witness who
testified. Hernandez testified that the “public defender” who represented him
at the plea hearing reviewed the terms of the plea offer and the Tahl waiver
with him. Hernandez said he understood everything the attorney explained.
Hernandez acknowledged again that the signature and initials appearing on
the Tahl waiver were his.
Hernandez recalled that at the time he pled, “the public defender”
spent “no more than three to five minutes” explaining the terms of the offer to
him. He also testified his attorney spent the same amount of time going over
the Tahl waiver.
Contrary to his testimony at the plea hearing, he stated that he did not
read the entire Tahl waiver before signing it. During cross-examination, the
People read Hernandez’s testimony from the plea hearing wherein
Hernandez told the court he had read the waiver.2 The People asked
2 The court took judicial notice of the transcript from the 2004 plea
hearing and the Tahl waiver.
5
Hernandez whether he lied to the court during the plea hearing. Hernandez
replied, “I don’t want to say I’m lying, but you know, I suppose, you know, I
did.”
When asked what the “the public defender” explained to him about
immigration, Hernandez testified, “He just mentioned something about, you
know, my status. That was it.” When asked if his attorney ever explained
that Hernandez would be deported, Hernandez replied, “not necessarily.”
When asked what the attorney explained about deportation, Hernandez
stated “He mentioned something if I was legal, then I should be okay.”
Hernandez later testified on redirect that when he spoke to his attorney on
the date of the plea, they did not speak about immigration.
Throughout direct examination, Hernandez referred to Esack using
male pronouns and recalled the attorney who represented him in 2004 “was a
male.” The People asked the court to take judicial notice of the fact that
Esack is a female. The court took judicial notice of that fact. During cross-
examination, the People pointed out Esack’s name on the Tahl waiver and
the transcript of the plea hearing. Hernandez responded, “I agree signing,
but like I said before, I thought it was a male.”
Hernandez testified that at the time of the plea his main concern was
to get out of custody as soon as possible, explaining, “it was more of me
worrying about my kids and trying to get out to them. . . . I don’t know what
they would have done without me that long if I would have got the max
sentence.” He said, “[the plea deal] was going to be a chance for me to be
out. . . . I was more concerned about my kids and trying to get to them.”
The People asked Hernandez whether he had been deported because of
the conviction he was seeking to vacate. Hernandez testified he was deported
three times because of the conviction. Hernandez appeared at probation
6
violation hearings after he was deported on two different occasions, one in
2008 and one in 2009. Yet Hernandez testified that the first time he told
anyone that he misunderstood the immigration consequences of his
conviction was in 2022, 18 years after his plea.
E. The Trial Court’s Ruling
After hearing Hernandez’s testimony and oral argument from both
parties, the court denied Hernandez’s motion. The court noted the law
required it to review the contemporaneous evidence from the time of the
conviction to corroborate Hernandez’s self-serving statements. The court
found the contemporaneous evidence did not corroborate Hernandez’s
assertions. The Tahl waiver and the plea hearing court’s oral advisement
“unequivocally show[ed]” Hernandez “knew full well what the consequences
were.” The court found Hernandez had agreed he signed, initialed,
understood, and discussed the Tahl waiver with Esack. It also found the
waiver explained the immigration consequences of the plea.
The court stated, “I believe with certainty [Hernandez] knew the
immigration consequences. He was willing to take that risk. That was a
rational decision. He could get out of jail. He could return to his kids. He
could return to being a breadwinner for his family knowing he had the risk of
deportation, but at least he was out of custody. And he took that risk.”
The court also explained it had “serious concerns about [Hernandez’s]
credibility.” The court’s concerns stemmed from Hernandez’s inability “to
recollect what occurred at the time of the plea.” The court noted Hernandez’s
failure to remember Esack’s gender or to “even recall who the attorney was.”
The court’s “serious concerns” were also based on Hernandez’s admission that
he “evidently lied to the court” during his plea hearing.
7
Hernandez timely appealed.
DISCUSSION
A. Governing Principles
Section 1473.7, subdivision (a)(1), “allows noncitizens who have served
their sentences to vacate a conviction if they can establish by a
preponderance of the evidence that their conviction is ‘legally invalid due to
prejudicial error damaging [their] ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse immigration
consequences of a conviction or sentence.’” (People v. Espinoza (2023) 14
Cal.5th 311, 316 (Espinoza); see § 1473.7, subd. (e)(1) [“The court shall grant
the motion to vacate the conviction or sentence if the moving party
establishes, by a preponderance of the evidence, the existence of any of the
grounds for relief specified in subdivision (a)”].)
“A defendant seeking to set aside a plea must do more than simply
claim he did not understand the immigration consequences of the plea. The
claim must be corroborated by evidence beyond the defendant’s self-serving
statements.” (People v. Abdelsalam (2022) 73 Cal.App.5th 654, 664
(Abdelsalam); People v. Vivar (2021) 11 Cal.5th 510, 530 (Vivar) [“[W]e have
long required the defendant [to] corroborate such assertions with “‘objective
evidence”’”]; People v. Mejia (2019) 36 Cal.App.5th 859, 872 (Mejia) [“In a
postconviction setting, courts should not simply accept a defendant’s
statement of regret regarding the plea, courts should also ‘look to
contemporaneous evidence to substantiate a defendant’s expressed
preferences’”].) “Objective evidence includes facts provided by declarations,
contemporaneous documentation of the defendant’s immigration concerns or
8
interactions with counsel, and evidence of the charges the defendant faced.
[Citations.]” (Espinoza, supra, 11 Cal.5th at p. 321.)
B. Standard of Review
We independently review the trial court’s ruling on a section 1473.7
motion. (Vivar, supra, 11 Cal.5th at p. 527.) “‘[U]nder independent review,
an appellate court exercises its independent judgment to determine whether
the facts satisfy the rule of law.’ [Citation.] When courts engage in
independent review, they should be mindful that “‘[i]ndependent review is
not the equivalent of de novo review . . . .”’ [Citation.] An appellate court
may not simply second-guess factual findings that are based on the trial
court’s own observations. . . . In section 1473.7 proceedings, appellate courts
should . . . give particular deference to factual findings based on the trial
court’s personal observations of witnesses.” (Vivar, supra, at pp. 527–528;
accord, Espinoza, supra, 14 Cal.5th at pp. 319–320.)
C. Ability to Meaningfully Understand the Immigration Consequences
Hernandez contends his conviction should be vacated because he did
not meaningfully understand the immigration consequences. The record does
not support Hernandez’s contention.
“To prevail under section 1473.7 . . . [t]he defendant must first show
that he did not meaningfully understand the immigration consequences of his
plea. Next, the defendant must show that his misunderstanding constituted
prejudicial error.”3 (Espinoza, supra, 14 Cal.5th at p. 319.) “[T]he focus of
3 We do not reach the second step of the analysis because we conclude
Hernandez failed to prove by a preponderance of the evidence that he was
unable to meaningfully understand or defend against the immigration
consequences.
9
the inquiry in a section 1473.7 motion 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.’” (Mejia, supra, 36 Cal.App.5th
at p. 871.)
We agree with the trial court that the contemporaneous evidence at the
time Hernandez pled does not demonstrate his inability to meaningfully
understand the immigration consequences. To the contrary, Hernandez
acknowledged his understanding of the consequences on multiple occasions.
He did so both in writing in the Tahl waiver and orally at the plea hearing.
The Tahl waiver Hernandez signed included an acknowledgment that
he “read and initialed each of the paragraphs above and discussed them with
[his] attorney” and he “underst[ood] and agree[d] with” each paragraph.
The “Immigration Consequences” paragraph advised Hernandez that
he “must expect” his plea “will result” in “deportation, exclusion from
admission or reentry to the United States, and denial of naturalization and
amnesty.” At the plea hearing, the court also advised Hernandez that the
conviction “may result” in Hernandez’s “being deported, excluded from
admission, or denied naturalization pursuant to the laws of the United
States.” The court asked Hernandez if he understood the advisement and he
replied, “yes.”
Hernandez also acknowledged that he had “a full opportunity” to
discuss the immigration consequences with his attorney. In both the Tahl
waiver and at the end of the court’s questioning during the plea hearing,
Hernandez acknowledged he did not have any additional questions for his
attorney or for the court.
Esack also signed the Tahl waiver on the date of the plea. Esack
acknowledged she had advised Hernandez about the immigration
10
consequences of the plea. (Abdelsalam, supra, 73 Cal.App.5th at p. 663 [the
defendant “is not entitled to simply ignore the admonitions he was given
about the consequences of the plea, and argue that he unilaterally assumed
he would be treated in direct contravention of what he was advised orally and
in writing”].)
We agree with the trial court that Hernandez’s assertion that he did
not meaningfully understand the immigration consequences does not satisfy
his evidentiary burden. The record does not contain any corroborating
evidence to support Hernandez’s self-serving statements made 18 years after
his plea. (Abdelsalam, supra, 73 Cal. App. 5th at p. 664.)
We defer to the court’s “serious” credibility concerns about Hernandez’s
ability to remember in 2022 what he understood about the immigration
consequences in 2004. The court’s doubts stemmed from Hernandez’s
inability to recall that Esack was a female after Hernandez referred to “the
public defender” using male pronouns on multiple occasions. The court also
doubted Hernandez’s credibility because Hernandez admitted that he lied to
the court at his plea hearing. (Espinoza, supra, 14 Cal.5th at p. 320 [“[w]hen
[reviewing] courts engage in independent review, they must give deference to
the trial court’s factual determinations”]; Vivar, supra, 11 Cal.5th at pp. 527–
528 [same].)
Hernandez also admitted that he was deported three times because of
his conviction. After the first two deportations, he reentered the United
States and appeared in court for probation violation hearings, four and five
years after his conviction. Hernandez testified that he had never told anyone
that he misunderstood the immigration consequences until he filed his
motion 18 years after the plea. Hernandez’s failure to communicate his
11
purported misunderstanding of the immigration consequences, even after he
was deported three times, casts doubt on his credibility.
We therefore conclude Hernandez has failed to establish by a
preponderance of the evidence that he was unable to meaningfully
understand the immigration consequences of his plea.
D. Ability to Defend Against the Immigration Consequences
Hernandez also contends his conviction should be set aside because
Esack failed to properly advise him of the immigration consequences.
Hernandez argues Esack’s error “affect[ed] his ability to meaningfully
understand, defend against, and knowingly accept the immigration
consequences of his plea and sentence.” The record does not support these
contentions.
As discussed, the Tahl waiver and Hernandez’s testimony at the plea
hearing demonstrate Esack advised Hernandez of the immigration
consequences of his plea. Hernandez and Esack both signed the Tahl waiver
containing their acknowledgments that Esack advised Hernandez of the
immigration consequences.
The only evidence in the record about the substance of Esack’s
immigration advice is Hernandez’s self-serving statements, 18 years after the
plea. And the trial court had serious credibility concerns regarding
Hernandez’s ability to recall his discussions with Esack as he could not even
remember who she was. Hernandez’s contention that Esack failed to
properly advise him of his immigration consequences therefore lacks merit.
(People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 223–224 [“An allegation
that trial counsel failed to properly advise a defendant is meaningless unless
12
there is objective corroborating evidence supporting appellant’s claimed
failures”].)
Hernandez relies on People v. Soriano (1987) 194 Cal.App.3d 1470
(Soriano) to support his assertion that Esack failed to properly advise him.
But Soriano is distinguishable because there, unlike here, there was
objective, credible, corroborating evidence of defense counsel’s improper
advisement. (Id. at pp. 1479–1482 [granting writ of habeas corpus where a
third party witnessed the discussion between the defendant and defense
counsel and the third party’s testimony corroborated the defendant’s credible
testimony of counsel’s assurance that the defendant would have “no problem”
with immigration as a result of his plea].)
Hernandez also argues that Esack failed to defend against the
immigration consequences because she did not negotiate an immigration-
neutral plea. This contention is also unsupported by the evidence.
The record is devoid of any evidence of the plea negotiations. The only
evidence of the plea was the deal Hernandez ultimately signed. The record
does not contain any testimony from Hernandez of plea negotiations.
Hernandez cites inapposite authority to support the proposition that
Esack improperly failed to seek an immigration-neutral conviction. In People
v. Manzanilla (2022) 80 Cal.App.5th 891, 907, unlike here, the defendant
presented objective, contemporaneous evidence of the plea negotiations.
(Ibid. [the record contained defense counsel’s notes at the time of the plea
including details about the plea negotiations].)
We conclude Hernandez has not proved by a preponderance of the
evidence that Esack failed to defend against the immigration consequences of
the plea.
13
Hernandez also argues that a different public defender who
represented him at the 2008 probation violation hearing failed to defend
against the immigration consequences of the sentence imposed at that time.
The argument of alleged errors at a hearing in 2008 is immaterial to
Hernandez’s motion to vacate only the 2004 conviction. We therefore do not
address it.
DISPOSITION
The trial court’s order denying Hernandez’s motion to vacate is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
WE CONCUR:
CURREY, P. J.
MORI, J.
14