P. v. Hernandez CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064286 Plaintiff and Respondent, (Super. Ct. No. F11901348) v.

MOISES ANIBAL HERNANDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of 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-

* Before Cornell, Acting P.J., Kane, J., and Poochigian, J.

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),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

1 All statutory references are to the Penal Code unless otherwise indicated. 2 According to the probation report, the first of the dismissed actions, case No. F09100653, involved felony and misdemeanor domestic violence allegations. Case No. F11100007 involved felony assault and false imprisonment allegations. The third dismissed case, case No. F11100190, involved a felony narcotics allegation. The allegations in all three cases occurred on different dates between 2009 and 2011. 3 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl). 4 Among the consequences of the plea reviewed with appellant by the trial court were that he faced a maximum sentence of 15 years to life, he would have to register as a sex offender, and could be deported.