The People v. Hernandez CA4/2 (2013) · DecisionDepot
The People v. Hernandez CA4/2
California Court of Appeal Aug 26, 2013 No. E058214Unpublished
Filed 8/26/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E058214
v. (Super.Ct.No. RIF1202896)
AUGUSTINE HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.
Affirmed.
Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
I. INTRODUCTION
Pursuant to a plea agreement, defendant Augustine Hernandez was sentenced to
six years in prison after pleading guilty to unlawfully possessing methamphetamine with
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a loaded, operable firearm (count 1) and possessing a firearm as a felon (count 2) and
admitting he committed count 2 for the benefit of a criminal street gang and two prison
constituting felony violation of section § 186.22 is serious felony].)
This claim is not cognizable on appeal. No certificate of probable cause was
issued, and absent a certificate of probable cause a defendant may not challenge the
validity of his plea. (People v. Cole (2001) 88 Cal.App.4th 850, 861-862) And, although
a defendant is entitled to be advised of the primary or direct consequences of entering
into a plea agreement, he is not required to be advised of its collateral consequences.
(People v. Crosby (1992) 3 Cal.App.4th 1352, 1355.) “[T]he possibility of increased
punishment in the event of a subsequent conviction is a collateral consequence.” (Ibid.)
In his Wende brief, appellate counsel observes there is a “potential issue” whether
defendant’s “negotiated plea in exchange for a sentence of six years” is constitutionally
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valid because it was not knowing and intelligent. (People v. Maultsby (2012) 53 Cal.4th
296, 302 [issues concerning constitutional validity of guilty plea are cognizable on
appeal, even absent certificate of probable cause].)
We discern no constitutional invalidity in the plea. Defendant acknowledged he
was waiving his constitutional rights to a jury trial, to representation by counsel, to
confront witnesses and compel witnesses to testify, and against self-incrimination.
(Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.) He also
acknowledged he had an opportunity to discuss the plea agreement with his attorney, and
he was advised he faced a sentence “in the teens,” rather than the negotiated six-year term
on all of the charges and enhancements.
A second potential issue noted by appellate counsel concerns whether the two-year
term imposed on the gang enhancement is an unauthorized sentence because it was
imposed consecutive to the two-year term on count 1, but the base term on count 2, to
which the enhancement attached, was imposed concurrent to count 1. (See People v.
Mustafaa (1994) 22 Cal.App.4th 1305, 1310 [enhancements attaching to underlying
offense must be imposed consecutive to base term on underlying offense].)
This claim is not cognizable on appeal. The six-year term was negotiated in the
plea agreement, and defendant could have been sentenced to as much as 12 years in
prison based solely on his plea and admissions. In this context, a challenge to the court’s
authority to impose a consecutive term on the gang enhancement amounts to a challenge
to the legality or validity plea which is not cognizable on appeal absent a certificate of
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probable cause. (People v. Cole, supra, 88 Cal.App.4th at pp. 861-864 [when sentence
challenged on appeal is part of plea bargain, it challenges the validity of plea, not the
authority to impose the sentence, and is not cognizable on appeal absent certificate of
probable cause]; People v. Panizzon (1996) 13 Cal.4th 68, 78.)
Lastly, we discern no abuse of discretion in the court’s denial of the suppression
motion. (People v. Beuer (2000) 77 Cal.App.4th 1433, 1436-1437 [no certificate of
probable cause required to challenge validity of search or seizure on appeal]; § 1538.5,
subd. (m).) The evidence presented on the suppression motion showed defendant was on
parole when he was searched, and the officer who searched him knew he was on parole.
(People v. Reyes (1998) 19 Cal.4th 743, 751-754 [warrantless search of parolee pursuant
to properly imposed parole search condition does not require reasonable grounds to
suspect parolee has violated law or possesses evidence of crime]; People v. Sanders
(2003) 31 Cal.4th 318, 333 [rule that warrantless parole search may be reasonable despite
absence of particularized suspicion does not apply if officer is unaware suspect is on
parole and subject to search condition].)
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IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction and sentence, finding no arguable issues after an independent review of the record and concluding that the defendant's challenges to the validity of his plea were not cognizable without a certificate of probable cause.
Issues
Whether the defendant's plea was constitutionally valid.
Whether the defendant's challenge to the sentence imposed as part of a plea bargain is cognizable without a certificate of probable cause.
Whether the trial court abused its discretion in denying the motion to suppress evidence.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We have reviewed the entire record and conclude there are no arguable issues.”
“No certificate of probable cause was issued, and absent a certificate of probable cause a defendant may not challenge the validity of his plea.”