Filed 6/20/16 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                          B265854

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA108331)
         v.

SILVIO HERNANDEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Salvatore Sirna, Judge. Affirmed.
         Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
         No appearance for Plaintiff and Respondent.




                                      ____________________________
         In May 2015, Silvio Hernandez was charged in an information with one count of
felony escape without force or violence from the Julius Klein Conservation Camp (fire
camp) (Pen. Code, § 4532, subd. (b)(1)) with special allegations he had suffered one prior
serious or violent felony conviction within the meaning of the three strikes law (Pen.
Code, §§ 667, subds. (b)-(j), 1170.12, subds.(a)-(d)) and had previously served four
separate prison terms for felonies (Pen. Code, § 667.5, sub. (b)).
         At his arraignment, Hernandez entered a negotiated plea of no contest to felony
escape without force or violence from a fire camp with the agreed sentence to be the
lower term of term of 16 months to be served consecutively to the sentence he was
serving when he escaped.1 At the time he entered his plea, Hernandez was advised of his
constitutional rights and the nature and consequences of the plea, which he stated he
understood. Defense counsel joined in the waivers of Hernandez’s constitutional rights.
The trial court expressly found Hernandez’s waivers, plea and admission were voluntary,
knowing and intelligent.
         The trial court sentenced Hernandez in accordance with the plea agreement and
awarded him presentence custody credit of 353 days. The court ordered Hernandez to
pay statutory fines, fees and assessments. The special allegations were dismissed
pursuant to the negotiated agreement.
         Hernandez filed a timely notice of appeal in which he checked the preprinted box
indicating his appeal was “based on the sentence or other matters occurring after the
plea.”
         We appointed counsel to represent Hernandez on appeal. After examination of the
record counsel filed an opening brief in which no issues were raised. On November 13,
2015, we advised Hernandez by mail he had 30 days within which to personally submit
any contentions or issues he wished us to consider. On November 24, 2015 the notice




1     At the time of his escape, Hernandez was serving a state prison term for
possession for sale of a controlled substance (Health & Saf. Code, § 11378).
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was returned by the North Kern State Prison. Handwritten on the envelope were the
letters “RB” and “Inactive,”2 suggesting Hernandez had been released.
       Hernandez’s notice of appeal included a request for a certificate of probable cause,
in which he challenged the 16-month sentence as “illegal,” arguing the court should have
imposed an eight-month consecutive sentence consisting of one-third the two-year middle
term for violating Penal Code section 4532, subdivision (b)(1). Because the record on
appeal did not contain a ruling on the request for a certificate of probable cause, we
remanded the matter to the trial court for the limited purpose of executing and filing
either a certificate of probable cause or an order denying a certificate of probable cause.
On February 19, 2016, the trial court denied Hernandez’s request for a certificate of
probable cause.
       A defendant may not, without a certificate of probable cause, contest on appeal an
unauthorized sentence prescribed by a plea agreement to which the defendant assented,
unless acceptance of the plea agreement exceeds the fundamental jurisdiction of the
court. (People v. Buttram (2003) 30 Cal.4th 773, 783.) As stated in People v. Hester
(2000) 22 Cal.4th 290, 295: “The rule that defendants may challenge an unauthorized
sentence on appeal even if they failed to object below is itself subject to an exception:
Where the defendants have pleaded guilty in return for a specified sentence, appellate
courts will not find error even though the trial court acted in excess of jurisdiction in
reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The
rationale behind this policy is that defendants who have received the benefit of their
bargain should not be allowed to trifle with the courts by attempting to better the bargain
through the appellate process.”
       In this case, the trial court had fundamental jurisdiction, Hernandez knowingly and
intelligently negotiated the 16-month sentence as part of his plea agreement in return for

2       When we appointed appellate counsel for Hernandez, we directed Hernandez “to
keep the court informed of his/her mailing address at all times. If you move, you MUST
notify the clerk of this court immediately; otherwise you may not receive important
notices concerning your appeal.” Hernandez has not provided any information regarding
his current address after his apparent release from the North Kern State Prison.
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dismissal of prior strike allegation, and the court sentenced him accordingly. No appeal
lies.
        Finally, with respect to other potential sentencing or post plea issues for which no
certificate of probable cause is required because they do not in substance challenge the
validity of the plea (Cal. Rules of Court, rule 8.304(b)(4)(B)), we have examined the
entire record and are satisfied Hernandez’s appellate 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, 118-119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)

                                      DISPOSITION
        The judgment is affirmed.




                                                  ZELON, J.




We concur:




        PERLUSS, P. J.




        SEGAL, J.




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