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The People v. Hebhert Yamil Gomez-Hernandez

June 25, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HEBHERT YAMIL GOMEZ-HERNANDEZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. 06F06639)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Gomez-Hernandez

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Hebhert Yamil Gomez-Hernandez appeals from a March 2010 order of the Sacramento County Superior Court denying his motion to vacate the judgment of conviction on the ground he received a defective advisement of the immigration consequences of his no contest plea.*fn1 (Pen. Code, § 1016.5.)*fn2 The court denied the motion because, when defendant entered his plea, he did not "plead[] to the sheet" and instead received "the benefit of a significant bargain . . . ."

The record shows that defendant did plead "to the sheet," and it fails to show that he received some other "significant bargain." Because the trial court's other reasons for denying the motion also fail, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was born in Nicaragua and was brought to the United States in July 1984 at age 11 weeks. He has been a Lawful Permanent Resident of the United States since November 1995. He is the father of two children, ages seven and three, who are United States citizens. Defendant had no criminal record prior to the present matter.

In August 2006, a complaint was filed charging defendant with possession of marijuana for sale (Health & Saf. Code, § 11359) and alleging he was armed with a .22 caliber pistol in the commission of the offense (§ 12022, subd. (a)(1)).

In September 2006, defendant appeared before the trial court "prepared to accept the offer of the District Attorney." Instead of terms of 16 months, two years or three years for the offense plus one year for the enhancement, defendant was to be placed on probation for up to five years with no more than 150 days of incarceration at the outset.

The trial court attempted to advise defendant of the immigration consequences of the plea by stating: "If you are not a United States citizen, you can be deported, excluded from naturalization, be denied naturalization as a United States citizen." (Italics added.)

The prosecutor stated the factual basis of the plea as follows: "In the County of Sacramento on July 6th, the year 2006, the defendant was found to be in possession of marijuana, and an expert would testify based on the indicia, quantity and money, that it was possessed for the purpose of sale. [¶] In addition, the defendant was found to be a principal in the 11359 and armed with a .22 caliber pistol."

Following the advisement and statement of factual basis, defendant pleaded no contest to the charge of possession of marijuana for sale and admitted the firearm allegation.

In October 2006, a probation report found one circumstance in aggravation (planning and professionalism; Cal. Rules of Court, rule 4.421(a)(3))*fn3 and three circumstances in mitigation (no prior record (rule 4.423(b)(1)), early acknowledgment of wrongdoing (rule 4.423(b)(3)), and youthfulness (22 years; rule 4.408). The report noted that defendant had a child whose well-being may be affected by his incarceration. (Rule 4.414(b)(5).)

Imposition of judgment was suspended and defendant was placed on probation for three years conditioned on service of 150 days of incarceration with a recommendation for work furlough. By October 2009, defendant had completed his probation; had paid all fines, penalties, and assessments; and had not reoffended.

In December 2009, the United States Department of Homeland Security issued to defendant a Notice to Appear (NTA), which is the charging document in removal (deportation) proceedings. In February 2010, the Immigration Judge in defendant's case sustained the allegations and charge of removability in the NTA, thus finding him removable. In June 2010, the Immigration Judge reiterated his order removing defendant to Nicaragua.*fn4 The Immigration Judge denied two forms of relief from removal that defendant had sought in ...


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