Filed 1/16/20 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

LUIS ANTONIO HERNANDEZ,

Defendant and Appellant.

E071704

(Super.Ct.No. INF1700484)

OPINION

APPEAL from the Superior Court of Riverside County. James S. Hawkins,* John J. Ryan, and Timothy J. Hollenhorst, Judges. Affirmed in part; dismissed in part.

Richard C. Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Luis Antonio Hernandez pled guilty to two counts of misdemeanor assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), counts 1 & 2) (all further statutory references are to the Penal Code), brandishing a firearm in the presence of an occupant of a motor vehicle (§ 417.3, count 3), carrying a loaded firearm with the intent to commit a felony (§ 25800, count 4), carrying a loaded firearm not registered to him (§ 25850, subd. (c)(6), count 5), and carrying a concealed firearm (§ 25400, subd. (a), count 6). The plea form indicated that the plea was a plea to the court. A trial court imposed the indicated sentence of three years. Defendant subsequently filed a motion to vacate his convictions under section 1473.7, alleging that his plea counsel failed to advise him of the immigration consequences of his plea. The trial court denied the motion.

On appeal, defendant argues that his felony conviction on count 3 must be reduced to a misdemeanor because: (1) the facts only support a misdemeanor conviction; and (2) both his plea counsel and counsel on the section 1473.7 motion were ineffective for failing to research the statute and realize there was no factual support for a felony conviction. We affirm the denial of the section 1473.7 motion. In all other respects, the appeal is dismissed.

PROCEDURAL BACKGROUND

On February 1, 2018, defendant signed a felony plea form and pled guilty to two counts of misdemeanor assault with a deadly weapon (§ 245, subd. (a)(1), counts 1 & 2), brandishing a firearm in the presence of an occupant of a motor vehicle (§ 417.3, count 3), carrying a loaded firearm with the intent to commit a felony (§ 25800, count 4), carrying a loaded firearm not registered to him (§ 25850, subd. (c)(6), count 5), and carrying a concealed firearm (§ 25400, subd. (a), count 6). The plea form stated that the plea was a plea to the court and indicated a custody term of three years on count 3, which was a felony strike. Defendant initialed the box next to the statement: “Factual Basis: I agree that I did the things that are stated in the charges that I am admitting.” The court took his plea and then sentenced him to a total term of three years in county jail, with 10 months in custody and the balance on mandatory supervision, plus six months concurrent on counts 1 and 2. The terms on counts 4, 5, and 6 were stayed pursuant to section 654.

On October 15, 2018, defendant filed a motion to vacate his convictions pursuant to section 1473.7, claiming that he received ineffective assistance of counsel, since his attorney failed to discuss or advise him of the immigration consequences of his plea. The court held a hearing on the motion on November 9, 2018. Defendant’s plea counsel testified that he knew defendant was not a United States citizen and advised him of the immigration consequences of his plea. The court denied the motion.

On November 19, 2018, defendant filed a notice of appeal, stating that the appeal was “based on the sentence or other matters occurring after the plea that do not affect the validity of the plea.”

On December 3, 2018, defendant filed an amended notice of appeal, again stating that the appeal was based on the sentence or other matters occurring after the plea, and adding that he was appealing from the denial of his motion to vacate his convictions under section 1473.7.

ANALYSIS

Defendant’s Claims Are Barred and/or Not Cognizable on Appeal

Defendant claims that his conviction of brandishing a firearm in the presence of an occupant of a motor vehicle (§ 417.3, count 3) must be reduced to a misdemeanor, since the facts do not support a violation of section 417.3. He asserts that one of the elements of section 417.3 is that the victim of the brandishing be the occupant of the motor vehicle. However, here, defendant was inside the motor vehicle, and he or his passenger pointed a firearm at a person walking down the street. Thus, he contends the facts only support a conviction of misdemeanor brandishing a weapon, under section 417. (§ 417, subd. (b) [“Every person who . . . in the presence of any other person, draws or exhibits any loaded firearm [in a threatening manner] shall be punished”].) We reject defendant’s claim for multiple reasons.

At the outset, we note defendant filed his notice of appeal on November 19, 2018, stating that he was appealing from his sentence. Assuming arguendo that his appeal is simply based on his sentence, his claim is barred, since he was required to file a notice of appeal within 60 days of the judgment. (Cal. Rules of Court, rule 8.308 (rule 8.308).) The court here rendered judgment on February 1, 2018—nine months prior to the date he filed his notice of appeal.

Defendant apparently recognized that his appeal was time-barred. So, he filed an amended notice of appeal on December 3, 2018, adding that he was appealing from the denial of his motion to vacate his convictions under section 1473.7, since the court denied that motion on November 9, 2018. Defendant appears to be simply using the court’s denial of the motion as a vehicle to appeal an entirely different issue—that his felony conviction was unsupported by the facts, as set forth above. This he cannot do, since that claim is barred. (See rule 8.308.) This appeal is thus limited to the immigration-related claim raised in his motion to vacate his convictions under section 1473.7. However, we observe that defendant does not bother to challenge the court’s denial of his section 1473.7 motion. Since he provides no argument or case authority regarding the court’s denial, we consider the challenge to the section 1473.7 motion forfeited. (People v. Whalen (2013) 56 Cal.4th 1, 72, fn. 28; see People v. Stanley (1995) 10 Cal.4th 764, 793 [A court need not consider a claim that is not accompanied by argument or authority.].) We thus affirm the denial of the motion on that basis.

In any event, defendant argues that he is appealing from an unauthorized sentence, which may be raised for the first time on appeal and must be corrected by a reviewing court. In other words, he claims the felony sentence the court imposed was unauthorized, since the facts only supported a misdemeanor offense. The problem with this argument is that defendant made a plea to the court and pled guilty to count 3, so there are no facts contained in the record on appeal. Therefore, he cannot affirmatively demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 [“[I]t is the appellant’s burden to affirmatively demonstrate error.”].)

Defendant points out that the prosecutor, the court, and his plea counsel misunderstood and/or improperly described section 417.3 as requiring the person brandishing the firearm to be inside the vehicle. He reiterates that the statute requires the victim of the brandishing to be the occupant of the motor vehicle, but the victim here was walking down the street. Again, there are no facts on the record for this court to review. Regardless, the record clearly shows that defendant understood the charge and agreed to plead guilty to count 3 (§ 417.3), a felony. He also agreed there was a factual basis for the plea, acknowledging that he “did the things that [were] stated in the charges that [he was] admitting.”

Furthermore, “[g]enerally speaking, under section 1237.5, a defendant may not bring an appeal from a judgment of conviction entered after a guilty or no contest plea, including an appeal challenging the validity of the plea, unless he or she has first obtained from the superior court a certificate of probable cause. [Citation.] As our Supreme Court has held, however: ‘Notwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]’ [Citations.]” (People v. Zuniga (2014) 225 Cal.App.4th 1178, 1182, fn. omitted (Zuniga).)

Defendant’s challenge, while couched in terms of an unauthorized sentence, is in substance a dispute concerning the factual basis underlying his guilty plea. This challenge “ ‘is properly viewed as a challenge to the validity of the plea itself.’ ” (Zuniga, supra, 225 Cal.App.4th at p. 1187; see People v. Jones (1995) 33 Cal.App.4th 1087, 1094.) Since he failed to obtain a certificate of probable cause in compliance with section 1237.5, his challenge is barred. (Zuniga, at pp. 1187-1188 [appeal dismissed for failure to obtain a certificate of probable cause].)

Moreover, in People v. Pinon (1979) 96 Cal.App.3d 904 (Pinon), the defendant pled guilty to possession of a firearm by an ex-felon. (Former § 12021). On appeal, the defendant contended the plea was invalid since the record did not reflect a factual basis for his plea, in that his prior conviction was a misdemeanor, not a felony. (Pinon, at p. 907.) He also argued his counsel was incompetent for failing to recognize that fact. (Id. at p. 909.) In rejecting the defendant’s contention, the court stated, the “defendant’s contention that the prior conviction was a misdemeanor rather than a felony, and the related contention that counsel was incompetent, go solely and directly to the question whether he was in fact guilty of the charged offense. However, his plea of guilty ‘operated to remove such issues from consideration as a plea of guilty admits all matters essential to the conviction.’ [Citations.] Consequently, these issues are simply not cognizable on the present appeal, whether or not [the] defendant obtained a certificate of probable cause.” (Id. at p. 910.)

Here, when defendant pled guilty to count 3, he thereby admitted every element of the offense. (People v. Turner (1985) 171 Cal.App.3d 116, 126.) In other words, his guilty plea “constitute[d] an admission of every element of the offense charged and constitute[d] a conclusive admission of guilt.” (Id. at p. 125.) Thus, his claim is not cognizable on appeal, since it goes directly to the question whether he was in fact guilty of the charged offense. (Pinon, supra, 96 Cal.App.3d at p. 910.)

We note defendant’s related contention that his plea counsel and counsel on the section 1473.7 motion were ineffective for failing to research the penal statute and realize there was no factual support for a felony conviction. However, since this claim is based on the same arguments discussed ante, it fails for the same reasons. (See Pinon, supra, 96 Cal.App.3d at pp. 909-910.)

DISPOSITION

The trial court’s denial of the section 1473.7 motion is affirmed. In all other respects, the appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

SLOUGH

J.

MENETREZ

J.