Filed 4/11/16 P. v. Hernandez CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H042778
                                                                    (San Benito County
         Plaintiff and Respondent,                                   Super. Ct. No. CR1501099)

         v.

GREGORY ANTHONY HERNANDEZ,

         Defendant and Appellant.


         Defendant Gregory Anthony Hernandez pleaded no contest to a count of felony
escape without force or violence (Pen. Code, § 4532, subd. (b)(1))1 and admitted he had
suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12). Pursuant to a plea
agreement, the trial court sentenced defendant to an upper term of three years, doubled
due to his prior strike convictions, for a total term in prison of six years. On appeal, his
counsel has filed an opening brief in which no issues are raised and asks this court for an
independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.
Counsel has declared that defendant was notified that an independent review under
Wende was being requested. We advised defendant of his right to submit written
argument on his own behalf within 30 days. Defendant has submitted a letter brief
raising several issues, including that he believes his plea was entered involuntarily.
         Pursuant to Wende, we have reviewed the entire record and have concluded that
there are no arguable issues. We will provide “a brief description of the facts and
         1
             Unspecified statutory references are to the Penal Code.
procedural history of the case, the crimes of which the defendant was convicted, and the
punishment imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 110.) Pursuant to Kelly,
we will consider defendant’s letter brief and will explain why we reject his contentions.
(Id. at p. 113.)
                                      BACKGROUND
       Facts2
       On June 24, 2015, defendant was released on a four-hour medical pass from San
Benito County Jail. Defendant was verbally advised by Officer Mike Kirschmann that he
was to return to the jail by noon that same day and signed a prisoner release agreement to
the same effect. Defendant failed to return to jail by the specified time and was arrested
three days later.
       Procedural History
       On June 30, 2015, the San Benito County District Attorney’s Office filed a
complaint charging defendant with one count of felony escape (§ 4532, subd. (b)(1)). It
was further alleged that defendant had two prior strike convictions (§§ 667, subds. (b)-(i),
1170.12) and had served three prior prison terms (§ 667.5, subd. (b)).
       On August 7, 2015, defendant pleaded no contest to the count of felony escape and
admitted his two prior strike convictions. His plea was entered under the agreement that
he would receive a maximum of six years in prison, composed of an upper term of three
years on the felony escape charged, doubled due to his prior strike convictions.
       On August 27, 2015, the trial court sentenced defendant to the agreed-upon term
of six years in prison. The court also dismissed the allegations that defendant had served
three prior prison terms. Defendant was awarded 124 days of custody credit, composed

       2
         Defendant pleaded no contest to the count of felony escape and stipulated that
the factual basis of his plea was contained in the San Benito County Sheriff’s Office
report. Therefore, we take the facts from the sheriff’s office report.


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of 62 days of actual custody and 62 days of conduct credit. The court also imposed a
restitution fund fine of $300 under section 1202.4 and imposed and suspended a matching
parole revocation fine under section 1202.45.
       On September 14, 2015, defendant filed an appeal and requested a certificate of
probable cause. Defendant claimed that he was coerced into pleading no contest to the
charges, he was wrongfully charged with felony escape, and he did not knowingly and
voluntarily waive his right to a jury trial. Defendant’s request for a certificate of probable
cause was granted.
                                        DISCUSSION
       Defendant’s supplemental letter brief raises three issues: (1) the factual basis for
his plea is incorrect, because another officer at the county jail advised him that he needed
to return to the jail after four hours, (2) he was coerced into pleading no contest based on
comments made by the prosecutor and the court during certain pretrial hearings, and
(3) his conviction for felony escape cannot stand, because a fellow inmate at county jail
“did the same exact thing [that] I did” and received a lesser punishment.
       Defendant’s first argument lacks merit. Defendant himself stipulated to the report
prepared by the San Benito County Sheriff’s Office as the factual basis for his plea. “A
guilty plea . . . concedes that the prosecution possesses legally admissible evidence
sufficient to prove defendant’s guilt beyond a reasonable doubt. Accordingly, a plea of
guilty waives any right to raise questions regarding the evidence, including its sufficiency
or admissibility . . . .” (People v. Turner (1985) 171 Cal.App.3d 116, 125.)
       Defendant also fails to provide any documentary evidence or support for his
contention that the sheriff’s office report contains factual discrepancies. Furthermore,
even assuming that defendant’s statements are true (that a different officer advised him
that he had to return to jail after four hours), he is not exonerated of any guilt. Under
defendant’s version of events, he was still advised he had to return to county jail.

                                              3
       Additionally, defendant’s claims regarding the validity of his plea agreement must
be rejected.3 We note that during the hearing on July 23, 2015, the trial court erroneously
stated that defendant would be subjected to a sentence of 25 years to life if he was
convicted of his crimes. During that same hearing, the trial court attempted to correct its
earlier statement by clarifying that defendant would be subject to a sentence of 90 years
(which is also incorrect).
       Here, defendant had two strike priors. Under section 667, subdivision (e)(2)(C), if
a defendant has two or more prior strikes and the current offense is not a serious or
violent felony as defined in section 667, subdivision (d), the defendant will be sentenced
under section 667, subdivision (e)(1) unless certain exceptions (none of which seem to
apply to defendant) are applicable. Section 667, subdivision (e)(1) provides that a
determinate or minimum indeterminate term shall be “twice the term otherwise provided
as punishment for the current felony conviction.” Defendant’s present offense involves a
violation of section 4532, subdivision (b)(1), without force or violence. This offense is
punishable by imprisonment in state prison for 16 months, two years, or three years, or
imprisonment in county jail not to exceed one year. Twice the determinate term of three
years provides for a statutory maximum term of imprisonment of six years.
       Despite the trial court’s erroneous statements during the July 23, 2015 hearing,
we find that defendant has forfeited his claim that his plea was not voluntary. Under


       3
         In his letter brief, defendant asserted that the trial court coerced him into
pleading guilty based on statements it made during hearings that took place on June 30,
2015, and July 23, 2015. On our own motion, we ordered the record augmented with the
transcript of the hearings that took place on July 23, 2015. The clerk of the superior court
has certified that there is no transcript of the hearing that took place on June 30, 2015,
because no court reporter was present. Therefore, to the extent defendant’s claims are
based on facts alleged outside the record on appeal, they are more appropriately raised by
way of a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266-267.)


                                             4
section 1018, a defendant is authorized to move to withdraw his plea at any time before
judgment. During the change of plea hearing, the court reiterated to the defendant several
times that the maximum sentence for his offense was six years.4 Therefore, the record
demonstrates that defendant was aware of the circumstances that would have caused his
plea to be involuntary, because during the earlier hearing on July 23, 2015, the court had
informed him that he would face a vastly different maximum term of 90 years. Yet,
despite being advised at the change of plea hearing that the maximum sentence for his
offense was six years and not 90 years, defendant did not move to withdraw his plea.
“[A]s a general rule, ‘an appellate court will not consider claims of error that could have
been—but were not—raised in the trial court.’ ” (People v. Turner (2002) 96
Cal.App.4th 1409, 1412.)
       Lastly, defendant argues that his sentence is improper, because a fellow inmate
committed a similar crime (presumably, absconded from jail) but received a lesser
punishment. This argument lacks a legal basis. That another inmate received a lesser
punishment for committing the same crime is not cognizable as an argument that
defendant was denied equal protection of the law. “ ‘ “The first prerequisite to a
meritorious claim under the equal protection clause is a showing that the state has
adopted a classification that affects two or more similarly situated groups in an unequal
manner.” ’ ” (People v. Dial (2004) 123 Cal.App.4th 1116, 1120.)




       4
         The court first informed defendant, “The Court would then impose the maximum
term of three years, which would be doubled to six years, and it would be mandated—
you would be required to serve the sentence of—any sentence in this case in state
prison.” Defendant acknowledged that he understood that statement. Later, the court
reiterated to defendant, “The maximum sentence for the offense is three years doubled, or
six years. Do you understand that?” Defendant answered, “Yes.”


                                             5
      In addition to the arguments set forth by defendant in his letter brief, we have also
conducted an independent review of the record pursuant to Wende and Kelly. We
conclude there are no arguable issues on appeal.
                                      DISPOSITION
      The judgment is affirmed.




                                            6
                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Márquez, J.
