P. v. Hernandez



















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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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, Plaintiff and Respondent, v. MOISES ANIBAL HERNANDEZ, Defendant and Appellant.

F064286 (Super. Ct. No. F11901348) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">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-



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),href="#_ftn2" name="_ftnref2" title="">^[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.href="#_ftn3" name="_ftnref3" title="">^[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 href="http://www.mcmillanlaw.com/">plea agreement, the consequences of his
plea, and his constitutional rights
pursuant to Boykin/>Tahl.href="#_ftn4" name="_ftnref4" title="">^[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,href="#_ftn5"
name="_ftnref5" title="">^[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 and appellant waived them. The parities stipulated to a factual basis
for the plea.href="#_ftn6"
name="_ftnref6" title="">^[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 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.