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The People v. Roberto Torres Herrera

August 2, 2011


(Super. Ct. No. CH026937)

The opinion of the court was delivered by: Murray, J.

P. v. Herrera CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

Defendant Roberto Torres Herrera was serving a life sentence for murder. While in prison, he was charged with one count of possessing a sharp instrument (Pen. Code, § 4502, subd. (a))*fn1 and one count of being a prisoner and committing a battery on someone not a prisoner. (§ 4501.5.) As to both counts it was further alleged defendant had suffered four prior strike convictions.*fn2 (§ 667, subds. (b)-(i).)

On May 6, 2010, defense counsel indicated defendant wanted to enter into a "straight up" plea; however, defendant refused to sign the plea form because he claimed he had been threatened and intimidated into entering the plea. The court made clear that if defendant stated he had been coerced into entering the plea, the court could not and would not accept the plea. Defendant then informed the court his case involved a battery on correctional officers. Those officers had threatened that his cell would be "tossed up," his paperwork and legal things thrown out, and he would not receive medical attention. He was tired of the threats and just wanted the case to end. In view of defendant's statements, the court stated it could not take a plea under the circumstances. At the next hearing, defendant again indicated he wanted to enter a plea and repeated his claim of intimidation. The court again refused to accept the plea on that basis.

At the trial readiness conference in September 2010, defendant advised the court he wanted to enter an open plea, "no offers, no deals, no nothing." He stated he was not being pressured and had fabricated the claims of retaliation and harassment. Defendant agreed to sign the plea form and waive preparation of a probation report. Defense counsel and defendant met and went over the form together. Defendant specifically initialed the part of the form indicating he was not under the compulsion of any threats or force. During the advisements prior to taking the plea, the court specifically reiterated the question about entering the plea under duress and defendant reaffirmed he was not under duress. Defendant again waived time, insisting he wanted to be sentenced immediately. The plea and sentencing time waiver were done without defense counsel's consent, as he believed defendant should file a Romero*fn3 motion. The court explained to defendant that a successful Romero motion could reduce his sentence. Defendant reiterated his desire to be sentenced immediately. Defendant pled guilty to all counts and admitted the enhancement allegations. Defendant was sentenced to 25 years to life on counts I and II, concurrent to each other and consecutive to his currently imposed sentences. A $200 restitution fine was imposed under

section 1202.4(b). Defendant's request for a certificate of probable cause was denied.

Appointed counsel set forth the facts of the case and requested this court to review the record and determine whether there are any arguable issues on appeal. (People v. 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, again claiming he was pressured into entering the plea by the threats and harassment of the correctional officers. Defendant's claims are challenges to the validity of the plea. Such challenges cannot be raised without a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)

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


The judgment is ...

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