California Court of Appeal Sep 5, 2025 No. E083949Unpublished
Filed 9/5/25 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E083949
v. (Super.Ct.No. FSB900528)
CRUZ HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,
Jr., Judge. Affirmed.
Stephanie L. Gunther, 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, Eric A. Swenson and Monique
Myers, Deputy Attorneys General, for Plaintiff and Respondent.
1
Edin Cruz Hernandez was born in Mexico and entered the United States in 2003,
when he was 20 years old. In 2009, Hernandez pled guilty to assault by means of force
likely to cause great bodily injury. (Former Pen. Code, § 245, subd. (a)(1) (§ 245(a)(1));
unlabeled statutory references are to this code.) In 2023, Hernandez moved under section
1473.7, subdivision (a)(1) (§ 1473.7(a)(1)), to vacate his conviction and withdraw his
plea. The trial court denied the motion, and Hernandez appealed. We affirm.
BACKGROUND
In January 2009, Hernandez was arrested on a charge of assault with a deadly
weapon (§ 245(a)(1)) after an incident involving several security guards at a nightclub,
where Hernandez had been dancing with his then-girlfriend, Maria Z. Police were
dispatched to the scene and took statements from Maria, the alleged victim (Hector M.),
and two security guards (Uriel O. and Thomas D.). Hernandez was advised of his rights
under Miranda v. Arizona (1966) 384 U.S. 436 and declined to give a statement.
Thomas said that Hernandez became aggressive when Thomas approached Maria
and told her that she had to wear her shoes inside the club. Thomas and Uriel said that
they escorted Maria and Hernandez out of the club. Uriel followed the couple to the
parking lot to ensure that they left the area.
In the club’s parking lot, Uriel saw Maria and another man get Hernandez into the
back seat of a vehicle. But Hernandez crawled into the driver’s seat, and Maria then tried
but failed to pull Hernandez out of the car. Hernandez started the engine and rapidly
accelerated toward Hector, a parking lot security guard or attendant. Hector said that he
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was standing in the middle of the driveway near Hernandez’s car when it headed directly
toward him. According to both Hector and Uriel, Hector jumped onto the flatbed of a
truck to avoid being struck by Hernandez’s car. Security guards pepper-sprayed
Hernandez and detained him until police arrived and arrested him.
Maria gave the following account of what happened: After she and Hernandez
voluntarily left the club, security guards followed them into the parking lot and teased
them with their batons. Hernandez got into the driver’s seat of the car and started it, but
one of the security guards blocked Hernandez’s exit by standing in front of the car. A
friend pulled Hernandez out of the car in order to calm him down, and security guards
then surrounded Hernandez and pepper-sprayed him “for no reason.”
Hernandez was charged with one felony count of assault with a deadly weapon—
to wit, a motor vehicle, in violation of section 245(a)(1). Assault with a deadly weapon is
a strike offense under the three strikes law. (See §§ 667, subd. (a)(1), 1192.7, subd. (c).)
In December 2009, Hernandez pled guilty to assault by means of force likely to
cause great bodily injury in violation of former section 245(a)(1).1 The plea form states
that Hernandez was pleading guilty to a “non-strike.” On that form, Hernandez initialed
the box acknowledging the following statement: “I understand that if I am not a citizen
of the United States, deportation, exclusion from admission to the United States, or denial
of naturalization will result from a conviction of the offense(s) to which I plead
1 In 2012, the Legislature amended section 245 and separated assault by means of force likely to produce great bodily injury into a distinct subdivision, (a)(4). (Assem. Bill No. 1026 (2011-2012 Reg. Sess.) § 1.)
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guilty/nolo contendere (no contest).” He also initialed a box acknowledging that his
lawyer explained everything in the declaration to him.
Soon after entering the guilty plea, Hernandez gave an account of the incident to a
probation officer for the presentence report. Hernandez denied that he committed the
offense, and he “maintained that he never attempted to run over the security guards
because he was not behind the wheel.” Hernandez reported that a security guard
“aggressively grabbed [his girlfriend’s] arm and led her off the dance floor,” at which
point he “became upset and challenged the security guard to fight.” Hernandez became
nervous and asked “his girlfriend” to drive them home, but “[b]efore he could get in the
car, several security guards beat him up and . . . sprayed him with pepper spray.” The
probation officer reported that Hernandez believed that “the plea agreement is fair.”
The probation report identified Maria as Hernandez’s fiancée. The probation
officer documented that Hernandez did not have any children and that his mother lived in
Mexico. Hernandez’s father is listed as deceased. Hernandez had been working for a
contractor for eight months as a general laborer.
The trial court sentenced Hernandez to the agreed-upon term of 180 days in
county jail, which could be served by work release or on the weekend, and three years of
probation. One of the conditions of probation required that Hernandez not remain in the
country “without proper written authorization by the Department of Homeland
Security—Bureau of Citizenship and Immigration Services.”
4
In 2017, the trial court reduced the felony assault conviction to a misdemeanor and
granted Hernandez’s petition to dismiss the conviction under section 1203.4.
That same year, Hernandez filed a petition “with the United States Customs and
Immigration” to become a lawful permanent resident. Hernandez was subsequently told
that he needed to leave the United States and appear for an interview in Mexico for the
petition to be considered. In 2022, Hernandez left the United States to attend a scheduled
interview in Mexico. During the interview, he was told that he did not qualify for a visa
to reenter the United States because of the assault conviction.
In 2023, Hernandez filed a motion to vacate the assault conviction under section
1473.7(a)(1). He argued that he did not understand the immigration consequences of his
guilty plea because his defense counsel misadvised him that “it would be better if
[Hernandez] accepted the deal so that ‘it does not get [him] deported.’” Hernandez’s
counsel passed away before Hernandez filed the motion.
Hernandez submitted a signed declaration in support of the motion. He stated that
he was born in Mexico and came to the United States in 2003, when he was 20 years old.
In 2005, he began a romantic relationship with Maria (his girlfriend during the nightclub
incident), and they started living together. Maria is a citizen of the United States.
Hernandez and Maria married in 2016.
With respect to the assault conviction, Hernandez asserted that he would have
rejected the plea bargain and gone to trial if he had known the resulting conviction would
prevent him from obtaining a visa to reenter the United States. He stated that he had
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acted in self-defense in the underlying incident. He asserted that he repeatedly told
numerous attorneys from the public defender’s office who represented him during the
criminal proceeding that he acted in self-defense and “wanted to fight the case.”
Hernandez described the incident as follows: After arguing with a security guard in the
nightclub who “placed his hands on Maria,” Hernandez and Maria voluntarily left the
club. The security guard then “followed [them] outside, and approached [Hernandez]
with a baton. A physical altercation ensued between myself and the security guard. As a
result of the physical altercation, I had to defend myself. I acted in self-defense.”
The People filed written opposition to Hernandez’s motion to vacate the
conviction. The People argued that when Hernandez entered his guilty plea in 2009 “a
violation of section 245 effectively carried no negative immigration consequences,”
because it was not then considered a crime of moral turpitude and not considered an
aggravated felony unless he was sentenced to over one year in prison.
At the hearing on the motion, both parties submitted on their written filings. The
court denied the motion, reasoning: “I think this issue boils down to, quite frankly, to the
date of the conviction in this case, which was 2009. The laws were much different then
with respect to and the liabilities attached in the immigration consequences and the
advisals that were required and the duties of defense counsel to advise their client with
respect to immigration consequences and issues. At this point the Court finds there were
no violations that the plea was taken.”
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DISCUSSION
I. Section 1473.7
Hernandez argues that the trial court prejudicially erred by denying his motion to
vacate the assault conviction. We find no prejudicial error.
Section 1473.7(a)(1) provides that “[a] person who is no longer in criminal
custody may file a motion to vacate a conviction” if the conviction 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 conviction or sentence.”
To prevail, the moving party must show three things. (§ 1473.7, subds. (a)(1),
(e)(1).) First, they must show that they did not meaningfully understand the immigration
consequences of their plea. (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).)
Second, they must show that their “misunderstanding constituted prejudicial error.”
(Ibid.) And third, they must show that the conviction or sentence being challenged
currently is causing “or has the potential to cause removal or the denial of an application
for an immigration benefit, lawful status, or naturalization.” (§ 1473.7, subd. (e)(1).)
The moving party bears the burden of establishing entitlement to relief by a
preponderance of the evidence. (Ibid.)
To show prejudicial error under subdivision (e)(1) of section 1473.7, the moving
defendant must demonstrate “a reasonable probability that the defendant would have
rejected the plea if the defendant had correctly understood its actual or potential
includes a summary of the legislative findings and declarations with respect to the
enactment. Subdivision (a) of section 1016.3 sets forth defense counsel’s obligations to
advise a defendant about possible immigration consequences. Subdivision (b) of section
1016.3 (§ 1016.3(b)) provides: “The prosecution, in the interests of justice, and in
furtherance of the findings and declarations of Section 1016.2, shall consider the
avoidance of adverse immigration consequences in the plea negotiation process as one
factor in an effort to reach a just resolution.”
Section 1016.3(b) does not apply in a postjudgment proceeding involving a
defendant’s motion to vacate a prior conviction. The plain language of the provision
unambiguously makes it applicable only in the context of “the plea negotiation process.”
(Ibid.) We may not disregard that limitation. (Wilson v. Safeway Stores, Inc. (1997) 52
Cal.App.4th 267, 272.) Because section 1016.3(b) applies only when the People are
negotiating a plea deal, Hernandez’s argument that the People’s opposition to his
postjudgment motion to vacate violated the statute is meritless.
DISPOSITION
The order denying Hernandez’s section 1473.7 motion is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J. We concur:
RAMIREZ P. J. FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's motion to vacate his conviction under Penal Code section 1473.7, holding that the defendant failed to demonstrate a reasonable probability that he would have rejected the plea bargain had he been aware of the immigration consequences.
Issues
Whether the trial court erred in denying a motion to vacate a conviction under Penal Code section 1473.7.
Whether the prosecution violated Penal Code section 1016.3, subdivision (b) by opposing a postjudgment motion to vacate.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The moving party bears the burden of establishing entitlement to relief by a preponderance of the evidence.”
“Section 1016.3(b) does not apply in a postjudgment proceeding involving a defendant’s motion to vacate a prior conviction.”