Filed 6/30/14 P. v. Hernandez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCO ANTONIO MONTOYA

HERNANDEZ,

Defendant and Appellant.

 B251831

 (Los Angeles County

 Super. Ct. No. PA068221)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dalila 

Corral Lyons, Judge. Appeal dismissed. 

Ann Krausz, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent. 

_______________________
2

Marco Antonio Montoya Hernandez1 was charged in an amended felony 

complaint with one count of possession of methamphetamine (Health & Saf. Code, 

§ 11377, subd. (a)) and two counts of assault with a deadly weapon (Pen. Code, § 245, 

subd. (a)(1). He pleaded not guilty to all counts. 

On August 30, 2010, Hernandez entered a negotiated plea of no contest, orally and 

in writing, to one count of assault with a deadly weapon.2 At the time he entered his plea, 

Hernandez was advised of his constitutional rights to a preliminary hearing and to a jury 

trial and the nature and consequences of the plea, including immigration consequences, 

which he stated he understood. Defense counsel joined in the waivers of Hernandez’s 

constitutional rights. The trial court expressly found Hernandez’s waivers and plea were 

voluntary, knowing and intelligent. 

In accordance with the plea agreement, on September 10, 2010, the trial court 

suspended imposition of sentence and placed Hernandez on three years of formal 

probation, on condition he serve 365 days in county jail. The remaining counts were 

dismissed as part of the agreement. 

On August 15, 2013, Hernandez filed a motion in propria persona to vacate his 

plea, which he acknowledged was a petition for writ of error coram nobis. Hernandez

argued defense counsel denied him effective assistance by failing to research the 

immigration consequences of his plea and to achieve a negotiated agreement that would 

minimize the adverse consequences of his plea. Hernandez also contended the trial court 

failed to admonish him of the immigration consequences of his plea. In his declaration in 

support of his petition, Martinez asserted he was currently in federal custody awaiting 

 

1 The record shows Hernandez’s name as “Marco Antonio Montoya Hernandez” 

and “Marco Antonio Montoya.” Hernandez uses both names in documents filed in the 

trial court. 

2 The record on appeal does not contain a reporter’s transcript of the plea or 

sentencing hearings. The minute orders of the two hearings and a “felony advisement of 

rights, waiver, and plea form,” which was initialed and signed by Hernandez, are part of 

the clerk’s transcript. 
3

deportation proceedings. On September 23, 2010, the trial court summarily denied the 

motion to vacate the plea. 

Hernandez filed a timely notice of appeal from the denial of his motion to vacate 

the plea, arguing defense counsel rendered ineffective assistance by failing to inform him 

of the immigration consequences of his plea. We appointed counsel to represent 

Hernandez on appeal. After an examination of the record, counsel filed an opening brief 

in which no issues were raised. On March 10, 2014, we advised Hernandez he had 30 

days in which to personally submit any contentions or issues he wished us to consider. 

No response has been received.

We have examined the record and are satisfied Hernandez’s attorney has fully 

complied with the responsibilities of counsel, and no arguable issue exists. (Smith v. 

Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly

(2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.) 

Whether or not Hernandez’s counsel provided ineffective assistance, that claim is 

not cognizable on coram nobis.3(People v. Villa (2009) 45 Cal.4th 1063; 1076; People v.

Kim (2009) 45 Cal.4th 1078, 1095.) Because the motion, properly considered a petition 

for writ of coram nobis, failed to state a prima facie case for relief, we dismiss the appeal.

DISPOSITION

The appeal is dismissed. 

ZELON, J. 

We concur:

PERLUSS, P. J. WOODS, J.

 

3 Significantly, the plea form notes the following, “I have advised the defendant 

according to the United States Supreme Court [sic] Padilla v. Kentucky (130 S.Ct. 

1473.)” and is signed and dated by defense counsel.