Filed 3/1/16 P. v. Hernandez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

JAIME HERN ANDEZ,
Defendant and Appellant. B 263524 (Los Angeles County Super. Ct. No. PA077747)

A PPEAL from an order of the Superior Court of Los Angeles County. Hayden Zacky, Judge. Affirmed. Jaime Hernandez, in pro. per.; Law Office of C hristopher Nalls and Christopher Nalls , un der appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.2

In the underlying consolid a ted a ction s , pursuant to a plea agreement, appellant Jaime Hernandez pleaded nolo con tend e re to possession of a controlled substance for sale and possession of a firearm with a prior conviction , and was
sentenced in accordance with the terms of th e agreement. After h is court

appointed counsel filed an opening brief raising no issues , appe llant submitted a
brief. Following our independent examination of the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ), we conclude that no arguable
issues exist . Accordingly, we affirm.

PROCEDURAL BACKGROUND
On August 18
, 2014 , a n information was filed Los Angeles County Superior Court Case No. PA077747, charging appellant in count one with possession of a controlled substance for sale (Health & Saf. Code, § 11378), and in counts two and three with possession of a controlled subst ance (Health & Saf. Code, § 11350, subd. (a)). Accompanying the charges were allegations that appellant had suffered three prior convictions constituting strike s under the “ Three Strikes ” law ( Pen. Code, §§ 667, subds. (b)

- (i), 1170.12, subds. (a)

- (d)) , a nd two prior felony convictions for which he had served prison term s (Pen. Code, § 667.5 , subd. (b) ). 1
On August 26, 2014, an information was filed in Los Angeles County Superior Court Case No. PA078593, charging appellant in count one with possession o f a firearm with a prior conviction for a violent offense ( § 29900, subd. (a)(1)), in count two with possession of a firearm with prior convictions ( § 29800, subd. (a)(1)), in count three with possession of a firearm after being adjudged a ward of the juve nile court ( § 29820, subd. (b)), in count four with carrying a loaded firearm while actively participating in a criminal street gang

1 All further statutory citations are to the Penal Code.3

( § 25850, subds. (a), (c)(3)), and in count five with possession of ammunition (§ 30305, subd. (a)(1)). Accompanying each count were allegations that appellant committed the offense for the benefit of a criminal street gang ( § 186.22, subd. (b)(1)(A)), and that he had suffered prior convictions ( §§ 667, subds. (a)(1), (d), 667.5, subd. (b)), including three strikes, for purpo ses of the Three Strikes law (§§ 667, subd. ( d) , 1170.12, subd. ( b ) ). In both actions, appellant pleaded not guilty and denied the special allegations. Prior to the consolidation of the actions, they were assigned to the same judge, and appellant was r epresented by the same court

- appointed defense
counsel.
A ppellant filed motions for pretrial discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531

. In Case No. PA077747, the trial court grant ed the motion with respect to two police offi cers, but determined that there
were no discoverable materials. In Case No. PA078593, the court grant ed the motion with respect to two different police officers, determined there were discoverable materials, and directed their disclosure to defense counse l. In January 2015, in Case No. PA078593, appellant filed a motion for dismissal of the gang allegations, which the trial court denied.
On March 3, 201 5, the trial court denied appellant ’ s motion under People v. Marsden (1970) 2 Cal.3d 118 for a new court

- appointed attorney. Later, t he court granted the prosecutor’s motion to consolidate the two actions, and amended the information in Case No. PA077747 to include the five counts alleged in the information in Case No. PA078593, which were renumbered a s counts four through eight. On March 12, 2015
, appellant entered into a plea agreement under which he was to be given a total term of 14 years and 4 months in state prison. In accordance with the agreement, appellant pleaded nolo contend e re to the cha rge s4

of possession of a controlled substance for sale ( count one) and possession of a firearm with a prior conviction for a violent offense ( count four) . In addition, he admitted the truth of the gang allegation accompanying count four, and the
existence of a 1994 robbery conviction constituting a strike under the Three Strikes law and a serious felony ( § 667, subd. (a)(1) )

. As provided in the plea agreement,
the trial court imposed the three

- year upper term on count four and a consecutive eight

- month ter m on count one (one

- third the middle term), doubled th ose term s pursuant to the Three Strikes law, and added a two

- year gang enhancement ( § 186.22, subd. (b)(1)(B)) and a five

- year prior serious felony conviction
enhancement ( § § 667, subd s . (a)(1) , (a)(4), 1192.7, subd. (c)(28) ) to the term imposed on count 4. T he remaining counts in the amended information were dismissed. This appeal followed.

FACTS 2
On September 26, 2013, Los Angeles Police Department o fficer s saw a car driven by appellant fail to s top at a stop sign. When the officers purs u ed appellant, he parked his car, fled on foot, and threw away a chrome object. After placing appellant into custody, the officers found a loaded handgun near appellant’s car.
O n August 5 , 201 4
, Los Angeles Po lice Department O fficer Tomas Salazar saw appellant s tand ing outside his residence , which was known as a location for
narcotics sales. Salaz ar knew appellant was a member of a gang called the “Pacas
Tre ce ” or “Pacoima 13.” For approximately one hour, as Salazar and his partner watched, appellant made brief contacts with people who approached him, engaged
in “hand

- to

- hand” exchanges, and walked away. Later, police officers conducted a

2 Because no tr ial occurred before appellant entered into the plea agreement, the facts are based on the evidence presented at the preliminary hearing in Case No. PA077747, and a police report relating to Case No. PA078593.5

search of appellant’s residence and discovered quantities of heroin,

me thamphetamine, and cocaine, along with a weigh scale and plastic baggies.

DISCUSSION After an examination of the record, appellant’s court

- appointed counsel filed an opening brief raising no issues and requested this court to review the record indepe ndently pursuant to Wende

. In addition, counsel advised appellant of his right to submit by supplement al brief any contentions or argument he wished the
court to consider. In response, appellant submitted a brief asserting several
contentions of error

. A ppellant’s plea of nolo contend e re restricts the scope of the a ppeal before

us

. Generally, “[w] hen a defendant has entered a plea of guilty or no contest, the bases for an appeal from the resulting conviction are limited

. . . . ” ( People v.
Johnson (200 9) 47 Cal.4th 668, 676.) A defendant must obtain a certificate of probable cause ( Pen. Code, §1237.5) to attack the plea agreement itself or the sentence imposed, insofar as “ the challenge goes to an aspect of the sentence to
which the defendant agreed as an integral part of [the] plea agreement. ” ( People v.
Johnson , supra, 47 Cal.4th at p. 678.) In the absence of a certificate of probable cause, a defendant may contend only (1) that a motion to suppress evidence was improperly denied, or (2) that after the plea, “‘ errors occurred in the subsequent adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed. ’” ( People v. Brown (2010) 181 Cal.App.4th 356, 360, quoting People v. Ward (1967) 66 Cal.2d 571, 574.)
Aside from asserting an intent to challenge the validity of the plea, appellant’s notice of appeal states that the appeal is based on “the denial of a motion to suppress evidence under

. . . section 1538.5 ” and “ the sentence o r other

matters occurr ing after the plea.” In requesting a certificate of probable cause to6

attack the validity of the plea, appellant alleged violations of his federal constitutional rights

. In addition, he contended that he received ineffective
assista nce from his counsel because she failed to challenge the search of his house, and that he was “pushed” to accept the plea agreement. Under the circumstances of this case, appellant’s appeal is limited to “postplea claims, including sentencing issues, t hat do not challenge the validity of the plea” ( People v. Cuevas (2008) 44 Cal.4th 374, 379) , as no motion under
section 1538 .5 to suppress evidence was filed prior to appellant’s plea ( People v.
Hunter (200 2 ) 1 00 Cal.App.4th 37, 41)
, and the trial court d enied his request for a certificate of probable cause ( Cuevas , supra , 44 cal.4th at p. 379). That limitation

on the appeal reflects the principle that “‘ “ [w] hen a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the di smissal of other counts or an agreed maximum punishment, both parties

. . . must abide by the terms of the agreement. ” ’” ( Id . at p. 383, quoting People v. Pani z zon (1996) 13 Cal.4th 68, 80.) A s appellant’s sentence was imposed in accordance with the plea agreement , ou r review of the record discloses no arguable error within the scope of the appeal

. Although appellant’s brief a lleges numerous errors prior to his plea, the only contention potentially subject to our review is that his sentence contravened Proposition 36, which amended the Three Strikes law. That contention fails
because the trial court correctly applied the amended Three Strikes law in determining appellant’s sentence. I n entering the pleas of nolo contendere, appellant admitted that in 1994, he was convicted of robbery ( § 211) , which
constitutes a violent felony ( § 667.5, subd. (c)(9)) , for purposes of the amended Three Strikes law ( §§ 667, subd. (d)(1), 1170.17, subd. (b)(1)). In view of that prior conviction, the amended Three Strikes law authorized the court to double the
terms for counts 1 and 4 ( §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). We7

therefore conclude that appellant’s counsel has fully complied with his responsibilities and that no arguable issues exist. ( Wende
, supra , 25 Cal.3d at

p. 441.)

DISPOSITION
T he judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.