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The People v. Ivan Herrera

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento


January 13, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
IVAN HERRERA, DEFENDANT AND APPELLANT.

Super. Ct. No. 09F03627

The opinion of the court was delivered by: Mauro,j.

P. v. Herrera CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant, Ivan Herrera, asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error and no concerns regarding presentence credits. We will affirm the judgment.

I

Defendant had been living at the one-bedroom home of the victim's family for about a year. The mother slept in one bed with her two children and defendant slept in the other bed with the mother's eight-year-old son, A.M. The mother caught defendant sodomizing A.M., grabbed a knife, and called the police. Defendant ran from the home. When interviewed, defendant confessed to substantial sexual conduct with A.M.

Defendant entered a negotiated plea of no contest to sodomy with a child who is 10 years of age or younger (Pen. Code, § 288.7, subd. (a); count one) and forcible lewd and lascivious conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1); count two, as amended) in exchange for dismissal of the remaining counts and a stipulated sentence of 25 years to life for count one and a consecutive eight-year term for count two. Defendant agreed to waive his right to appeal "anything about the plea in the case or any other issues related to the litigation of [his] criminal case."

The court sentenced defendant accordingly.

Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)

II

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief explaining that he had never been in trouble before, had never molested children before, and had previously lived with families. Defendant complains that counsel did not do a good job. Defendant states that he waived his rights upon advice of counsel. Defendant also complains that the detective who interviewed him was not fair and that he (defendant) did not understand his rights.

Penal Code section 1237.5 limits appeals following guilty pleas to "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," if the defendant files the requisite statement showing such grounds and the trial court issues a certificate of probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b).) The purpose of this requirement "is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas" and "to promote judicial economy." (People v. Panizzon (1996) 13 Cal.4th 68, 75 (Panizzon); In re Chavez (2003) 30 Cal.4th 643, 651.)

Here, defendant did not satisfy the requirements of filing a statement and obtaining a certificate of probable cause. Even if defendant had obtained a certificate of probable cause, the certificate does not make cognizable on appeal an issue that has been waived by entry of a guilty or no contest plea. (People v. Kaanehe (1977) 19 Cal.3d 1, 9.) Moreover, when defendant entered his plea, he waived his right to appeal "anything about the plea in the case or any other issues related to the litigation of [his] criminal case."

To the extent defendant's claims that he had never been in trouble before and never molested children before may be interpreted as challenging the evidence, the claims are barred even if he had obtained a certificate of probable cause -- a guilty or no contest plea "waives any right to raise questions regarding the evidence." (People v. Turner (1985) 171 Cal.App.3d 116, 125-126 (Turner).) Defendant also entered an express waiver of his right to appeal. "To be enforceable, a defendant's waiver of the right to appeal must be knowing, intelligent, and voluntary. [Citations.]" (Panizzon, supra, 13 Cal.4th at p. 80.) Defendant was represented by counsel. Defendant had no questions about the waiver. The negotiated plea provided for the dismissal of the remaining counts. The record reflects a valid waiver of the right to appeal matters that occurred prior to sentencing. Defendant's no contest plea and waiver of his right to appeal bars his right to challenge the evidence and his confession (e.g., that the detective was not fair or that defendant did not understand his rights). (Turner, supra, 171 Cal.App.3d at pp. 125-126, 127.)

With respect to defendant's claims that he waived his rights on the advice of counsel and that counsel did not do a good job, defendant is attacking the validity of his plea; these claims are barred as he did not obtain a certificate of probable cause. (Pen. Code, § 1237.5; Panizzon, supra, 13 Cal.4th at pp. 73, 78, 89.) Defendant also expressly waived his right to appeal all that which occurred up to sentencing.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.*fn1

DISPOSITION

The judgment is affirmed.

We concur:

RAYE, P.J.

ROBIE,J.


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