Filed 7/20/15 P. v. Hernandez CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE



THE PEOPLE,                                                              B260554

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. VA134152)
         v.

JONATHAN HERNANDEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Lori A. Fournier, Judge. Dismissed.
         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.

                                        _________________________
         Defendant and appellant, Jonathan Hernandez, appeals from the judgment entered
following his plea of no contest to second degree robbery (Pen. Code, § 211).1 The trial
court sentenced Hernandez to three years in state prison.
         We dismiss Hernandez’s appeal as inoperative because he failed to obtain a
certificate of probable cause.
                      FACTUAL AND PROCEDURAL BACKGROUND
         1. Facts.2
         On March 3, 2014, Hernandez’s codefendant, Oscar Hernandez, went into an
AM/PM Mini Mart and walked out with an 18-pack of beer without paying. The store
clerk, Sochchan Singh, ran after Oscar Hernandez and got into a fight with him on the
street. Defendant Jonathan Hernandez stepped out of a car, pointed a handgun at Singh,
and said, “What’s up?” Afraid that he was going to be shot, Singh ran back into the
store.
         Los Angeles County Deputy Sheriff Juan Medrano arrived at the scene and drove
Singh around the neighborhood until Singh spotted the perpetrators’ car parked in the
driveway of a house. Both Oscar Hernandez and Jonathan Hernandez were inside the
house, along with some other people and the stolen beer. Singh identified Oscar
Hernandez as the person who grabbed the beer and Jonathan Hernandez as the person
who pointed a gun at him. The police did not find any guns either inside the house or in
the possession of either defendant.
         Singh originally described the gun to Medrano as “a black semiautomatic.” But
when Singh spoke to Medrano on the day of the preliminary hearing, he described the
gun as “a round cylinder revolver.”




1
         All further statutory references are to the Penal Code unless otherwise specified.
2
         The facts have been taken from the record of the preliminary hearing.

                                               2
         2. Procedural history.
         On April 2, 2014, Hernandez was charged by information with second degree
robbery, second degree commercial burglary, and a personal firearm use enhancement
(§§ 211, 459, 12022.53, subd. (b)).
         On May 20, 2014, both defendants accepted a package plea offer whereby each
would plead no contest to second degree robbery; the other charges and enhancement
allegations would be dismissed. Under the terms of the proposed agreement, Oscar
Hernandez would receive a two-year prison sentence and Jonathan Hernandez would
receive a three-year prison sentence. After waiving his constitutional rights to a jury trial,
to confront witnesses, to remain silent, and to present a defense, Jonathan Hernandez pled
no contest to one count of second degree robbery.
         On October 2, 2014, defense counsel informed the trial court that Jonathan
Hernandez had given him some reasons for wanting to withdraw his no contest plea.
However, counsel said, “In my opinion, they do not amount to a legal cause to withdraw
the plea. They were factors that we were aware of at the time the plea was entered.” The
trial court replied, “And I did review the transcript, and there is nothing in the transcript
that’s a basis to withdraw the plea.” The court then sentenced Jonathan Hernandez to the
agreed-upon three-year mid-term term for robbery, and ordered him to pay a $300
restitution fine (§ 1202.4), a $40 court operations assessment (§ 1465.8), and a $30
criminal conviction assessment (Gov. Code, § 70373). The court suspended a $300
parole revocation fine (§ 1202.45). The court awarded Hernandez presentence custody
credit for 214 days actually served and 32 days of good time/work time, for a total of
246 days.
         On December 1, 2014, Jonathan Hernandez filed a notice of appeal, checking the
box labeled “This appeal is based on the sentence or other matters occurring after the plea
that do not affect the validity of the plea.” He never applied for a certificate of probable
cause.




                                               3
                                       DISCUSSION
         Hernandez has questioned why he received a three-year sentence when his
codefendant, Oscar Hernandez, received only a two-year sentence. Hernandez asserts he
should not have received a greater penalty than his codefendant because they pled to the
same charges and, in addition, it was not true that he had used a gun and, in fact, he
“didn’t even do anything.” However, the evidence produced at the preliminary hearing
demonstrated that he did have a gun which he used to threaten the store clerk. And since
his codefendant did not use a gun, this would explain the disparity between their prison
terms.
         In any event, because Hernandez’s claim essentially goes to the validity of his no
contest plea, it is not cognizable on appeal without a certificate of probable cause granted
by the trial court pursuant to section 1237.5. As Hernandez does not have a certificate of
probable cause, his appeal must be dismissed as inoperative. (See People v. Mendez
(1999) 19 Cal.4th 1084, 1094-1099.)
                                       DISPOSITION
         The appeal is dismissed.
         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EDMON, P. J.


We concur:




                      ALDRICH, J.                               JONES, J.*



*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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