P. v. Herrera
Filed 10/11/12 P. v. Herrera 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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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,
v.
DENISE MARIE
HERRERA,
Defendant and Appellant.
E055395
(Super.Ct.No. FVI1100465)
OPINION
APPEAL
from the Superior Court of
Bernardino County. Lynn
Poncin, Judge. Affirmed.
Ava
R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
INTRODUCTION
On
March 3, 2011, a felony complaint
Herrera with (1) conspiracy to commit possession
of methamphetamine for sale under Penal Code section 182 and Health and
Safety Code section 11378 (count 1); (2) possession for sale of a controlled
substance under Health and Safety Code section 11378 (count 2); (3) kidnapping
for ransom under Penal Code section 209, subdivision (a) (count 7); (4)
sections 211 and 213, subdivision (a)(1)(A) (count 8); (5) extortion under
Penal Code section 520 (count 9); (6) false imprisonment by violence under
Penal Code section 236 (counts 10 & 14); (7) assault with a firearm under
Penal Code section 245, subdivision (a)(2) (count 11); (8) possession of a
firearm by a felon under Penal Code section 12021, subdivision (a)(1) (counts
12, 18 & 23); (9) kidnapping for ransom under Penal Code section 209,
subdivision (a) (count 13); and (10) street
terrorism under Penal Code
As
to all counts, except count 29, the complaint also alleged that the offenses
were committed for the benefit of a criminal
street gang under section 186.22, subdivision (b)(1). The complaint further alleged that the
offenses charged in counts 8 and 9 caused the sentencing to be under section
186.22, subdivision (b)(4)(B) and (b)(4)(C).
As
to counts 7, 8 and 13, the complaint alleged that a principal personally used a
firearm under section “12022.53(b).â€
As
to counts 7, 8, 9, 10 and 11, the complaint alleged that defendant personally
inflicted great bodily injury under section 12022.7, subdivision (a).
As
to counts 9, 10 and 11, the complaint alleged that defendant personally used a
firearm under section 12022.5, subdivision (a).
As
to counts 7, 8, 11, 13 and 29, the complaint alleged that on November
24, 2008, defendant
had suffered a serious felony prior, street terrorism under section 186.22,
subdivision (a), within the meaning of section 667, subdivision (a).
As
to all counts, the complaint alleged that defendant had suffered a strike prior
under sections 667, subdivisions (b)-(i), and 1170.12, subdivisions (a)-(d).
On
April 5, 2011,
defendant was arraigned. She pled not
guilty to all charges, and denied all special allegations and priors.
On
October 4, 2011,
defendant entered a no contest plea as to count 8 (residential home invasion
robbery) and agreed to a sentence for the midterm of four years, doubled to
eight years for the strike prior.
Defendant acknowledged that she was not eligible for a county prison
commitment because of the strike prior, under section 1170, subdivision (h)(3).
At
the change of plea hearing, the trial court advised defendant of the
waiving, that a no contest plea is the same as a plea of guilty for all
purposes and has the same consequences as a guilty plea, and that the plea
could not be used against her in a civil lawsuit. In summarizing the plea agreement, the court
reiterated that defendant would be pleading guilty to count 8, home invasion
robbery, which carries a sentencing range of three, four or six years; that
defendant was admitting a strike prior; and that she was admitting the section
1170, subdivision (h)(3) allegation that she was ineligible for county prison
based on her prior strike conviction and on the charge she was pleading to that
day. The court noted that defendant
would be sentenced to the four-year midterm, doubled to eight years, and that
all remaining counts and allegations would be dismissed. Defendant stated that she understood.
To
the court’s question whether “anyone made any other promises of a lesser
sentence, probation, reward, immunity or anything else in order to get [her] to
plead guilty or no contest,†defendant responded, “No your Honor.†Defendant indicated that no one had threatened
her to enter her plea; that she was not under the influence of alcohol, drugs,
narcotics, or medicine; that she had enough time to discuss her case with her
attorney about her “rights, potential defenses, penalties, punishments, and
future consequences†of her plea. The
court also advised her of consequences if she were not a citizen of the United States.
Counsel
indicated that he had gone over the declaration of plea form with defendant;
that he was satisfied that defendant understood everything on the form; and
that he joined in her waivers.
Thereafter,
the trial court found the following: (1) that defendant had read and understood
her plea form; (2) that defendant had understood the nature of the charge and
allegations to which she was pleading; (3) that she had understood all consequences
and punishments for the offense to which she was pleading and the allegations
to which she was admitting; and (4) that she had understood each of her
constitutional rights. The court further
found that defendant had knowingly, intelligently, freely, and voluntarily
waived each of her constitutional rights.
The court then allowed defendant to withdraw her not guilty plea to
count 8.
Defendant
entered a no contest plea to count 8 and counsel joined. Defendant admitted that she had suffered a
prior strike conviction and acknowledged that she was ineligible for county
prison. The prosecutor concurred and
accepted. Defense counsel and the
prosecutor stipulated that if the court were to read and consider the felony
complaint, the police reports, and any applicable rap sheets that the court
would find a factual basis for the plea.
They further stipulated that the court may consider the felony complaint
as the information for purpose of confirming the section 859, subdivision (a)
plea.
The
trial court then found that there was compliance with Boykin-Tahl.
name="_ftnref4" title="">[4] On
the prosecutor’s motion, the trial court dismissed all remaining counts and
allegations in the interests of justice under section 1385. The court then referred the case to the
probation department to prepare a probation report.
At
the November 2, 2011, sentencing hearing, the
trial court read and considered a memo from the probation officer requesting a
one-week continuance to complete the probation report. The court informed defendant she had a right
to be sentenced within 20 court days from the day she entered her plea, and
asked, “Do you waive and give up that right and agree that your sentence would
be timely if held on November 14, 2011?â€
Then, the following discussion ensued:
“THE
DEFENDANT: Um --
“THE
COURT: That way you can have a probation report and your attorney can -- “MR. WATSON [defense counsel]:
Otherwise, you’re going to be sentenced without a probation report. You don’t want that, okay?
“THE
DEFENDANT: Is it going to matter since I already signed a plea?
“MR.
WATSON: Well, it may with regard to
additional terms and things like that.
“MS.
FAHERTY [prosecutor]: She is going to state prison, but we did request the
report because it’s her first trip to state prison.
“MR.
WATSON: We can do a 1203(c). Do you want
to be sentenced today?
“THE
DEFENDANT: If it’s possible.
“MR.
WATSON: Do you have a calculator? Can we
get those --
“MS.
FAHERTY: I can probably figure them out.
“THE
BAILIFF: April 1st.
“THE
COURT: Do you want to proceed with sentencing, Mr. Watson?
“MR.
WATSON: She does.â€
The
trial court then sentenced defendant according to the terms of the plea
agreement. Although the court ordered
defendant remanded to the custody of the sheriff for immediate delivery to the
Department of Corrections and Rehabilitation, the court ordered defendant to be
held in county jail for 48 hours to allow the probation department to prepare a
report under section 1203c.
On
January 3, 2012, defendant filed a timely notice of appeal indicating she
wished to challenge the validity of her guilty plea. She requested and was granted a certificate
of probable cause.
STATEMENT OF FACTS
On
May 6, 2009, defendant “unlawfully and by means of force and fear [took]
personal property from the person, possession and immediate presence of Juan
Carlos Llerenas and said offense was perpetrated in an inhabited dwelling.â€
ANALYSIS
After defendant appealed, and
upon her request, this court appointed counsel to represent her. Counsel has filed a brief under the authority
of People v. Wende (1979) 25 Cal.3d
436 and Anders v. California (1967)
386 U.S. 738 setting forth a statement of the case, a summary of the facts, and
potential arguable issues, and requesting this court to undertake a review of
the entire record.
We
offered defendant an opportunity to file a personal supplemental brief, and she
has done so. Pursuant to the
mandate of People v. Kelly (2006) 40
Cal.4th 106, we have independently reviewed the record for potential error.
In her 11-page typewritten supplemental brief, defendant, in essence,
argues that (1) the trial court erred in failing to review a written probation
report before sentencing her; and (2) the plea bargain was unauthorized.
We first address defendant’s
argument concerning the probation report.
Defendant states: “[Defendant]
does not contest the fact that she was statutorily ineligible for probation. However, [defendant] does contend that she
had a right to preparation and review of a probation report prior to sentencing
and that the record does not show proof of an express waiver thereof.â€
In this case, defendant waived her
right to a probation report. (See
176, 182 [defendant may waive a probation report pursuant to section
1203].) As provided in detail above, the
trial court, in fact, told defendant that she did not want to be sentenced
without a probation report. Defendant,
however, asked if a probation report was necessary since she pled guilty. She then asked that she be sentenced “todayâ€
(without the probation report). Counsel,
thereafter, indicated that they wanted to proceed with sentencing—with no
objection from defendant.
Moreover, “a probation report is not
necessarily required if defendant is statutorily ineligible for probation, for
example, because of a prior strike.†(
Cal.App.4th at p. 180.) Here, defendant
pled guilty to home invasion robbery and admitted to a strike prior—making her
ineligible for probation. (See
§ 667, subd. (c)(4).) Thus, she was
statutorily ineligible for probation; a probation report in this case was not
mandated, as defendant agreed she was ineligible for probation. (See People
v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432 [since defendant was
ineligible for probation due to his strike a probation report was
discretionary] [Fourth Dist., Div. Two]; People
v. Llamas (1998) 67 Cal.App.4th 35, 39-40 [same].)
In sum, defendant never asked the
trial court to prepare the probation report prior to sentencing and
acknowledged when entering into the plea that she was ineligible for
probation. In fact, when the court
recommended that they continue the sentencing hearing for a probation report,
defendant equivocally indicated that she wanted to be sentenced
immediately. As such, we cannot find
that the trial court erred in sentencing defendant without a probation report
in this case.
We next address defendant’s
contention that “the plea bargain was unauthorized under Penal Code section
1192.7.†Section 1192.7, subdivision
(a)(2) states that “[p]lea bargaining in any case in which the indictment or
information charges any serious felony . . . is prohibited, unless
there is insufficient evidence to prove the people’s case, or testimony of a
material witness cannot be obtained, or a reduction or dismissal would not
result in a substantial change in sentence.â€
Defendant contends that no plea bargain was permitted because none of
the exceptions were considered prior to reaching the plea agreement. Nonetheless, defendant cites no authority for
the proposition that, if a defendant enters into a plea agreement which
allegedly violates section 1192.7, subdivision (a)(2), but which is
advantageous to herself, she is entitled to reversal of her conviction based
upon the violation. “In fact, a
defendant who enters into a plea bargain may be estopped from attacking [her]
conviction on grounds the bargain violated section 1192.7.†(People
v. Tung (1994) 30 Cal.App.4th 1607, 1612, fn. 9.) Here, defendant did not challenge the
validity of her plea bargain in the trial court and received a substantial
benefit from her bargain; she is estopped to raise the challenge on appeal. (People
v. Webb (1986) 186 Cal.App.3d 401, 410-412.)
We have now concluded our independent review of the record and found
no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
MCKINSTER
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Thirteen other individuals were also charged
with various offenses in the felony complaint.
None of them are parties to this appeal.
name="_ftn2" title=""> [2] All further statutory references are to the
Penal Code unless otherwise specified.
