Hernandez defense in California

2019Hernandez's claim that she would not have pleaded guilty had she known it would lead to deportation "is backed by substantial and uncontroverted evidence." ( Lee, supra, --- U.S. ----, 137 S.Ct. at p. 1969 .) She has therefore established a reasonable probability that, but for her counsel's failure to advise of the mandatory deportation consequence, she " 'would not have pleaded guilty and would have insisted on going to trial.' " ( Ibid. ) Our conclusion that Hernandez's constitutional right to the effective assistance of counsel was violated is consistent with the holding of People v. Espino

2019Hernandez's claim that she would not have pleaded guilty had she known it would lead to deportation "is backed by substantial and uncontroverted evidence." ( Lee, supra, --- U.S. ----, 137 S.Ct. at p. 1969 .) She has therefore established a reasonable probability that, but for her counsel's failure to advise of the mandatory deportation consequence, she " 'would not have pleaded guilty and would have insisted on going to trial.' " ( Ibid. ) Our conclusion that Hernandez's constitutional right to the effective assistance of counsel was violated is consistent with the holding of People v. Espino

2019Because the court lacked jurisdiction to grant the relief requested in Hernandez's motion, the order denying the motion did not affect his substantial rights as contemplated in section 1237, subdivision (b). ( People v. Turrin (2009) 176 Cal.App.4th 1200 , 1208, 98 Cal.Rptr.3d 471 .) The claims raised in the motion also could have been raised on direct appeal from the judgment.

2019Because the court lacked jurisdiction to grant the relief requested in Hernandez's motion, the order denying the motion did not affect his substantial rights as contemplated in section 1237, subdivision (b). ( People v. Turrin (2009) 176 Cal.App.4th 1200 , 1208, 98 Cal.Rptr.3d 471 .) The claims raised in the motion also could have been raised on direct appeal from the judgment.

2019We agree. " 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' [Citations.]" ( People v. Mazurette (2001) 24 Cal.4th 789 , 792, 102 Cal.Rptr.2d 555 , 14 P.3d 227 .) "An order made after judgment affecting a defendant's substantial rights is appealable. (§ 1237, subd. (b).) However, once a judgment is rendered, except for limited statutory exceptions (§§ 1170.126, 1170.18), the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170, subdivi

2019We agree. " 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' [Citations.]" ( People v. Mazurette (2001) 24 Cal.4th 789 , 792, 102 Cal.Rptr.2d 555 , 14 P.3d 227 .) "An order made after judgment affecting a defendant's substantial rights is appealable. (§ 1237, subd. (b).) However, once a judgment is rendered, except for limited statutory exceptions (§§ 1170.126, 1170.18), the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170, subdivi

2019Hernandez's claim that she would not have pleaded guilty had she known it would lead to deportation "is backed by substantial and uncontroverted evidence." ( Lee, supra, --- U.S. ----, 137 S.Ct. at p. 1969 .) She has therefore established a reasonable probability that, but for her counsel's failure to advise of the mandatory deportation consequence, she " 'would not have pleaded guilty and would have insisted on going to trial.' " ( Ibid. ) Our conclusion that Hernandez's constitutional right to the effective assistance of counsel was violated is consistent with the holding of People v. Espino

2019Hernandez's claim that she would not have pleaded guilty had she known it would lead to deportation "is backed by substantial and uncontroverted evidence." ( Lee, supra, --- U.S. ----, 137 S.Ct. at p. 1969 .) She has therefore established a reasonable probability that, but for her counsel's failure to advise of the mandatory deportation consequence, she " 'would not have pleaded guilty and would have insisted on going to trial.' " ( Ibid. ) Our conclusion that Hernandez's constitutional right to the effective assistance of counsel was violated is consistent with the holding of People v. Espino

2019We agree. " 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' [Citations.]" ( People v. Mazurette (2001) 24 Cal.4th 789 , 792, 102 Cal.Rptr.2d 555 , 14 P.3d 227 .) "An order made after judgment affecting a defendant's substantial rights is appealable. (§ 1237, subd. (b).) However, once a judgment is rendered, except for limited statutory exceptions (§§ 1170.126, 1170.18), the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170, subdivi

2019We agree. " 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.' [Citations.]" ( People v. Mazurette (2001) 24 Cal.4th 789 , 792, 102 Cal.Rptr.2d 555 , 14 P.3d 227 .) "An order made after judgment affecting a defendant's substantial rights is appealable. (§ 1237, subd. (b).) However, once a judgment is rendered, except for limited statutory exceptions (§§ 1170.126, 1170.18), the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170, subdivi

2000Essentially, Scott is arguing that he was entitled to such an instruction under People v. Hernandez (1964) 61 Cal.2d 529 [ 39 Cal.Rptr. 361 , 393 P.2d 673 , 8 A.L.R.3d 1092 ], in which our Supreme Court held a good faith and reasonable belief that a victim was over the age of consent and had voluntarily engaged in sexual intercourse was a defense to statutory rape. 8 We conclude that the Hernandez defense does not apply here.

2000Essentially, Scott is arguing that he was entitled to such an instruction under People v. Hernandez (1964) 61 Cal.2d 529 [ 39 Cal.Rptr. 361 , 393 P.2d 673 , 8 A.L.R.3d 1092 ], in which our Supreme Court held a good faith and reasonable belief that a victim was over the age of consent and had voluntarily engaged in sexual intercourse was a defense to statutory rape. 8 We conclude that the Hernandez defense does not apply here.

2026Whatever the case may be, as the record on this point is silent, and there are satisfactory tactical reasons for defense counsel not to object, we must reject defendant’s claim of ineffective assistance of counsel regarding the failure to object to the gang evidence. 5 (People v. Gamache, supra, 48 Cal.4th at p. 391 .) These allegedly inadmissible statements offered little evidentiary value to further implicate defendant and subjected defendant to little or no risk of unfair prejudice; we 5 We recognize that there are cases in which the improper admission of gang evidence can be so prejudicial

2026(Suarez, supra, 10 Cal.5th at p. 148 .) After Hernandez’s counsel presented the jury with the incorrect version of the exhibit, the prosecutor properly exercised her “wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account. [Citations.]” (People v. Bemore (2000) 22 Cal.4th 809, 846 .) Contrary to Hernandez’s claim, the prosecutor did not suggest that defense counsel had deliberately presented the wrong exhibit.

2026(See Veliscescu, supra, 231 Cal.App.3d at pp. 1522-1523 [dismissing appeal from an order granting a motion to vacate default before entry of default judgment].) We are unable to construe Hernandez’s notice of appeal as referring to any appealable final order or judgment because her notice of appeal does not meet the two exceptions in Rule 8.104.

2026While, generally, evidence of a party’s financial condition is improper if used solely to appeal to the social or economic prejudices of the jury (Seimon v. Southern Pacific Transportation Co., supra, 67 Cal.App.3d at p. 606 ), here, Mr. Hernandez’s brief testimony that he did not go to the doctor for his pain was not improper.

2026(See United States v. Payner (1980) 447 U.S. 727, 731 .) It is undisputed that Hernandez’s Instagram included an incriminating video of both defendants.

2026(Suarez, supra, 10 Cal.5th at p. 148 .) After Hernandez’s counsel presented the jury with the incorrect version of the exhibit, the prosecutor properly exercised her “wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account. [Citations.]” (People v. Bemore (2000) 22 Cal.4th 809, 846 .) Contrary to Hernandez’s claim, the prosecutor did not suggest that defense counsel had deliberately presented the wrong exhibit.

2024The court set a later hearing for Hernandez’s motion to dismiss his prior strike pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). 2 At the hearing, the court stated the abstract of judgment before it “shows all the prison priors are still imposed.” 4 At the continued April 24, 2023 resentencing hearing, the trial court first denied Hernandez’s Romero motion to dismiss his prior strike under section 1385, subdivision (a), and then turned to the issue of full resentencing under sections 1172.75 and 1385, subdivision (c).

2024(People v. Cooper (1991) 53 Cal.3d 771, 831 .) We accordingly conclude that Hernandez’s challenge concerning CALCRIM No. 1193 is barred.

2024(People v. Harris (2008) 43 Cal.4th 1269, 1293-1294 ; People v. Riazati (2011) 195 Cal.App.4th 514, 530 .) In any event, even if the challenge were not barred, we would conclude that the trial court did not err by instructing the jury with CALCRIM No. 1193.

2024(People v. Duke (Nov. 23, 2021, S265309), review granted Jan. 13, 2021.) Depublished cases “are not proper authority and may not be cited.” (Stratton v. Beck (2018) 30 Cal.App.5th 901, 916 .) Considered as a whole, the appellate record demonstrates the court was expressing its own conclusion that, after reviewing the preliminary hearing testimony and considering Hernandez’s plea of guilty to the attempted murder charge and the use of a firearm—which also included a stipulation that the factual basis for the plea included the preliminary hearing evidence—that there is sufficient evidence for th

2024(People v. Harris (2008) 43 Cal.4th 1269, 1293-1294 ; People v. Riazati (2011) 195 Cal.App.4th 514, 530 .) In any event, even if the challenge were not barred, we would conclude that the trial court did not err by instructing the jury with CALCRIM No. 1193.

2023(Moore v. Morhar (1977) 65 Cal.App.3d 896, 901-902 .) 3 Hernandez’s claim that PVH’s own website makes no mention of it being a public entity is not entirely accurate.

2023(See Woods, supra, 241 Cal.App.4th at p. 489 .) Having so concluded, we need not address Hernandez’s claim that the asserted instructional error was prejudicial.

2023(People v. Hernandez (2009) 172 Cal.App.4th 715, 720 .) But, although the sentencing order in Escobedo’s criminal case substantially impacted CDCR, we see no immediate pecuniary effect that would justify applying the Hernandez exception.

2023(People v. Hernandez (2009) 172 Cal.App.4th 715, 720 .) But, although the sentencing order in Escobedo’s criminal case substantially impacted CDCR, we see no immediate pecuniary effect that would justify applying the Hernandez exception.

2022Code,] § 1259.)” (People v. Famalaro (2011) 52 Cal.4th 1, 35 .) Since “a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156 ), we will address Hernandez’s claim of instructional error without considering whether he also received ineffective assistance of counsel. 4.

2022Code,] § 1259.)” (People v. Famalaro (2011) 52 Cal.4th 1, 35 .) Since “a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156 ), we will address Hernandez’s claim of instructional error without considering whether he also received ineffective assistance of counsel. 4.

2022(People v. McNeal (2009) 46 Cal.4th 1183, 1203 .) Contrary to Hernandez’s claim, the court’s exclusion of Kerry’s statement did not prevent him from presenting a defense.

2021In People v. Marshall (1997) 15 Cal.4th 1 (Marshall), the high court affirmed the denial of a Faretta motion because the defendant made the request when he was upset about having to give blood and tissue samples.

2021(See Serrano, supra, 211 Cal.App.4th at p. 503 .) Based on our review of the record, the applicable law, and Hernandez’s supplemental brief, we conclude 6 there is no arguable issue and, for the reasons set forth above, affirm the order denying Hernandez’s motion to modify his sentence.