People v. Hernandez CA4/2

Filed 1/11/23 P. v. Hernandez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E077416 v. (Super.Ct.No. FWV1003124) EDUARDO HERNANDEZ, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed. Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Adrian R. Contreras, Deputy Attorney General, for Plaintiff and Respondent. 1 INTRODUCTION In 2010, defendant and appellant Eduardo Hernandez pled guilty to carrying a concealed weapon that was stolen (former Pen. Code,1 § 12025, subd. (a),2 count 1) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 2), both as misdemeanors (Pen. Code, § 17, subd. (b)). In 2020, he filed a motion pursuant to Penal Code section 1473.7 to withdraw his plea and vacate his convictions on the grounds that his attorney failed to investigate the immigration consequences of his plea, failed to inform him of the actual immigration consequences of his plea, and failed to seek an immigration-safe plea. The trial court denied the motion. Defendant appeals, contending that he did not understand the immigration consequences of his plea. We affirm. FACTUAL AND PROCEDURAL BACKGROUND3 Police officers responded to a report of someone hearing gunshots in a residential neighborhood in Ontario. They searched the neighborhood and found defendant standing next to a fence. They asked him to take his hands out of his pockets and approach them. 1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 Effective in 2012, the Legislature renumbered this statute as section 25400. 3 The factual background is taken from the police report. We note the minute order only indicates the court found that defendant’s plea was “based on fact,” but did not state a specific factual basis for the plea. We further note the clerk of the San Bernardino County Court was unable to ascertain the identity of the court reporter at the plea hearing; thus, the reporter’s transcript from the plea hearing was not available. 2 Defendant walked toward the officers, but momentarily sidestepped and hid behind a tree, removed something from his pants, and then resumed approaching the officers. The officers detained him. They searched near the tree and found a handgun with a magazine inside of it. Even though the ground was wet from the prior rain, the gun was mostly dry. The officers arrested defendant and transported him to the police station. Upon booking him, an officer took everything out of defendant’s pockets. As the …

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