People v. Cornejo CA4/3

Filed 12/23/21 P. v. Cornejo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G059644

v. (Super. Ct. No. 05CF2822)

JOSE SALCEDO CORNEJO, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Moran Law Firm, Amanda K. Moran and Janay D. Kinder for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent. * * *

This appeal arises from the denial of defendant’s motion to vacate his conviction pursuant to Penal Code section 1473.7 1 which allows for vacatur “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 plea of guilty or nolo contendere.” (Id., subd. (a)(1).) Defendant pleaded guilty to robbery in 2006. He is now attempting to naturalize but has discovered his prior conviction is an obstacle. He thus filed the underlying motion. In 2006, defendant signed a plea form acknowledging that his conviction would have adverse immigration consequences, and an interpreter signed a statement that she interpreted this provision for defendant. The minutes from 2006 also state that defendant was warned of immigration consequences in open court, and an interpreter was present. Nevertheless, defendant testified in the present motion that he did not understand the agreement, that his attorney never explained it to him, and that he does not recall an interpreter being present. He further testified he would not have signed the plea form had he understood the immigration consequences. After an evidentiary hearing, at which defendant testified, the trial court found he was not credible and denied the motion. On appeal, defendant contends the evidence presented supports a finding of error impairing his ability to understand the immigration consequences of his plea. Pursuant to our high court’s recent decision in People v. Vivar (2021) 11 Cal.5th 510 (Vivar), our review is independent, which means we defer to any factual findings the court made based on its observation of live evidence but conduct our own analysis of the “cold” record (i.e., the documentary evidence) and decide for ourselves whether defendant has met his burden. Because defendant testified at an evidentiary hearing, we must defer to the trial court’s determination that defendant was not a credible witness. Outside of his testimony, however, there is essentially no evidence of an error that