P. v. Hernandez
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 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.
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