People v. Hererra CA5

Filed 9/21/22 P. v. Hererra CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083509
Plaintiff and Respondent,
(Kern Super. Ct. No. LF013609A)
v.
FREDDY HERERRA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
Martin Baker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.
Defendant Freddy Hererra contends on appeal that his case should be remanded to
afford him an opportunity to withdraw his plea because the record did not establish an
adequate factual basis. We affirm.
PROCEDURAL SUMMARY
On July 15, 2021, the Kern County District Attorney filed a complaint charging
defendant with first degree robbery (Pen. Code,1 § 212.5, subd. (a); count 1); assault with
a firearm (§ 245, subd. (a)(2); count 2); and possession of a firearm by a felon (§ 29800,
subd. (a)(1); count 3). It was further alleged as to count 1 that defendant personally used
a firearm (§ 12022.5, subd. (a)). For all three counts, it was alleged defendant had one
prior strike conviction within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)).
On July 23, 2021, defendant initialed and signed a “Felony Advisement of Rights,
Waiver and Plea Form,” pled no contest to robbery (count 1), and admitted the prior
strike conviction, for a negotiated disposition of six years (low term of three years,
doubled pursuant to the Three Strikes law). On the prosecutor’s motion, all other counts
and allegations were dismissed.
On October 19, 2021, defendant filed a motion to withdraw his plea. On October
26, 2021, the prosecution filed an opposition.
On November 4, 2021, the trial court denied defendant’s motion to withdraw his
plea and sentenced him to the agreed-upon negotiated disposition. Defendant was
sentenced to six years (the low term, doubled) on count 1.
On November 5, 2021, defendant filed a notice of appeal and request for a
certificate of probable cause. The request for a certificate of probable cause was granted
that same day.
1 All statutory references are to the Penal Code.
2
FACTUAL SUMMARY
On July 13, 2021, defendant and another man entered the victim’s bedroom.
Defendant closed and locked the door behind them. With defendant pointing a gun at the
victim, the other man grabbed the victim’s watch and pulled it off his wrist. Defendant
then demanded money from the victim, and when the victim opened his wallet, defendant
took two $20 bills and five $1 bills. Before leaving the room, the other man threw the
victim’s watch on the floor.
DISCUSSION
Defendant contends the trial court abused its discretion when it accepted his plea
because the factual basis was insufficient. He argues his plea was invalid because (1) the
trial court failed to consider the contents of the police reports stipulated to by the parties
as the factual basis, until after the trial court accepted his plea; (2) he was not afforded
sufficient notice of the conduct alleged to prove each element of the offense before he
entered his plea; and (3) he did not understand the strength of the case against him
because he had not considered the contents of the police report, which was stipulated to
by the parties as the factual basis, until after the plea was accepted. The People respond
that (1) none of those purported failures rendered his plea invalid, and (2) any error was
harmless because the police reports provided a factual basis for the plea. We agree with
the People on both accounts.
A. Background
During the plea colloquy, the trial court told defendant that it wanted to talk to him
about the change of plea form before it accepted his plea.
The form, initialed and signed by defendant and signed by defense counsel, listed
the charges to which defendant was pleading, waived certain constitutional rights, stated
the consequences of the plea, and affirmed that defense counsel had discussed the facts of
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the case with defendant and explained the consequences of the plea, elements of the
offense, and possible defenses.
Defendant indicated to the trial court that he had gone over the form with defense
counsel, initialed and signed the form, understood each of the rights he was giving up,
and had no questions about it.
The trial court then asked the parties, “Is there a stipulation there’s a factual basis
for the plea … to Count 1 and the prior strike allegation … based on the offenses
reports …?”2 Both the prosecution and defense counsel responded, “So stipulated.”
The trial court did not review the contents of the police reports before it accepted
defendant’s plea.3
After obtaining a certificate of probable cause (see § 1237.5, subd. (b)), defendant
appealed on the ground that his counsel’s stipulation failed to satisfy the requirements of
section 1192.5.
B. Law
“When a trial court takes a conditional plea of guilty or … no contest[] to an
accusatory pleading charging a felony, under … section 1192.5 it must ‘cause an inquiry
to be made of the defendant to satisfy itself that the plea is freely and voluntarily made,
and that there is a factual basis for the plea.’ ‘ “The purpose of the requirement,” ’ …
2 The parties agree that “offenses reports” refers to the police reports.
3 Later, defendant moved to withdraw the plea. During the hearing on defendant’s
motion, the trial court stated that it had not yet read the reports. Upon reviewing the
reports, the trial court stated, “One of the witnesses said they closed their eyes. [¶]
However, the victim said he had a gun pointed at him. Another witness, however, … said
he saw him with a gun as well. So it does have some, you know—to the extent that he
never got to read the police reports, there’s no requirement that he absolutely read
every—the entirety of the police reports. [¶] I have no reason to believe he didn’t
understand enough about the case when he entered the plea, and I did—and he did
certainly have sufficient time to discuss it with [defense counsel]. [¶] So based on what
I’ve read and considered, I’m going to deny the motion at this time.”
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‘ “is to protect against the situation where the defendant, although he realizes what he has
done, is not sufficiently skilled in law to recognize that his acts do not constitute the
offense with which he is charged.” ’ ” (People v. Palmer (2013) 58 Cal.4th 110, 112–113
(Palmer).)
“ ‘[A] trial court possesses wide discretion in determining whether a sufficient
factual basis exists for a … plea. The trial court’s acceptance of the … plea, after
pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be
reversed only for abuse of discretion.’ ” (Palmer, supra, 58 Cal.4th at pp. 118–119.)
If there is error, it will be deemed harmless if the record supports a finding of a
factual basis for the conditional plea. (People v. Holmes (2004) 32 Cal.4th 432, 443
(Holmes).)
C. Analysis
The trial court did not abuse its discretion in finding a factual basis for defendant’s
no contest plea. The trial court was not required to review the contents of the specific
documents to which the parties stipulated as the factual basis for defendant’s plea before
accepting his plea, and although defendant also had not reviewed the police reports
before he entered his plea, the factual basis and plea colloquy show that defendant was
afforded sufficient notice of the conduct alleged, possible defenses, and the strength of
the case against him. Furthermore, as the record supports a finding of a factual basis for
defendant’s conditional plea, any error is harmless.
1. Factual Basis
Defendant contends the factual basis for his plea was insufficient because, while
defense counsel and the prosecution both stipulated to the police reports as the factual
basis for defendant’s plea, the trial court did not “consider” the contents before accepting
his plea. We see no error.
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The trial court must “make an inquiry to satisfy itself that there is a factual basis
for a conditional plea of guilty or no contest.” (Palmer, supra, 58 Cal.4th at p. 118.)
“[T]he trial court can satisfy this requirement by inquiring of defense counsel regarding
the factual basis of the plea, in which case … ‘it should request that defense counsel
stipulate to a particular document that provides an adequate factual basis, such as a …
police report ….’ ” (Palmer, at pp. 112–113.)
A trial court may also “satisfy its statutory duty by accepting a stipulation from
counsel that a factual basis for the plea exists without also requiring counsel to … refer to
a document in the record …,” as long as “the plea colloquy reveals that the defendant has
discussed the elements of the crime and any defenses with his or her counsel and is
satisfied with counsel’s advice.” (Palmer, supra, 58 Cal.4th at p. 118.) Palmer did not
hold that an explicit inquiry was required. Instead, Palmer suggested that the plea
colloquy, as a whole, must “reveal[ ] that the defendant … is satisfied with counsel’s
advice.” (Ibid.)
Here, both requirements were met: the parties stipulated to a factual basis based
on the police reports and an inquiry was made of defendant during the plea colloquy. As
Palmer does not require that a specific document be identified to provide the factual
basis, it does not matter whether the trial court considered the contents of the police
reports when it accepted defendant’s plea, so long as defendant had time to discuss the
elements and defenses with defense counsel. The trial court here solicited stipulations
from both counsel referring to the police reports to obtain a factual basis for the plea. In
addition, defendant affirmed during the plea colloquy that he had “discussed [the plea
agreement] with [defense counsel],” “went over [the plea form] with [defense counsel],”
“[understood] each of the rights that [he was] giving up and the consequences of the plea
that [they] discussed and [were] further explained to [him] on the form,” and indicated
that he understood, initialed, and signed the plea agreement, in which he initialed the
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boxes that read, “I understand the charge(s) against me, and the possible pleas and
defenses to the charge(s),” and “I have had enough time to speak with my attorney
regarding the strengths of the case against me [and] any possible defenses that I may
have ….”
Accordingly, as the parties stipulated to the police reports as the factual basis for
defendant’s plea, and the plea colloquy reveals that defendant discussed the elements of
the offense and any defenses with defense counsel and was satisfied with counsel’s
advice, the factual basis for defendant’s plea was sufficient.
2. Notice of the Conduct Alleged
Defendant next appears to contend that “he was not afforded sufficient notice of
the conduct alleged to prove each element of the offense” and “therefore, he was unable
to recognize whether his acts constituted the offense to which he pled.” We disagree.
“The trial court must ‘cause an inquiry to be made of the defendant to satisfy itself
that the plea is freely and voluntarily made, and that there is a factual basis for the plea’
… ‘ “to protect against the situation where the defendant, although he realizes what he
has done, is not sufficiently skilled in law to recognize that his acts do not constitute the
offense with which he is charged.” ’ ” (Palmer, supra, 58 Cal.4th at pp. 112–113.)
“The factual basis required by section 1192.5 does not require more than
establishing a prima facie factual basis for the charges.” (Holmes, supra, 32 Cal.4th at
p. 441, fns. omitted.) The trial court is not required to “obtain an element-by-element
factual basis” (People v. Marlin (2004) 124 Cal.App.4th 559, 572), to “interrogate the
defendant about possible defenses to the charged crime,” or to be “convinced of [the]
defendant’s guilt.” (Holmes, at p. 441, fns. omitted).
Here, during the plea colloquy, defendant indicated to the trial court that he had
discussed with defense counsel each of the rights that he was giving up and the
consequences of the plea, and was satisfied with defense counsel’s advice, and that he
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understood the plea form that he initialed and signed, which affirmed that defense
counsel had discussed the facts of the case with defendant and explained the
consequences of the plea, elements of the offense, and possible defenses. As only a
prima facie basis for the charge is required by section 1192.5, and there was a factual
basis for defendant’s plea and the plea colloquy reveals defendant was satisfied with
defense counsel’s advice, we find defendant was afforded sufficient notice of the conduct
alleged at the time he entered his plea.
3. Possible Defenses and Strength of the Case
Defendant next contends that he was prejudiced by not being provided with notice
of possible defenses prior to entering his no contest plea; “thus the plea was not knowing
and voluntary.” He further argues that because he had not personally reviewed the
contents of the reports before the trial court accepted his plea, he did not “ ‘necessarily
understand the strength of the case that was against him’ ” at the time he entered his plea.
We disagree.
First, as stated above, the trial court is not required to “interrogate the defendant
about possible defenses to the charged crime,” or to be “convinced of [the] defendant’s
guilt.” (Holmes, supra, 32 Cal.4th at p. 441, fns. omitted).
Second, there is no requirement that defendant personally review the contents of
the documents that are stipulated to as the factual basis for defendant’s plea before
defendant’s plea is entered. Defense counsel was authorized to stipulate to the factual
basis on behalf of defendant, as defense counsel has “broad authority to stipulate to
factual and procedural matters on his client’s behalf. Even at trial, counsel may stipulate
to the existence or nonexistence of essential facts. [Citation.] Counsel may also stipulate
to the admissibility of evidence or to narrow the range of litigable issues. [Citations.]
Stipulations obviate the need for proof and are independently sufficient to resolve the
matter at issue in the stipulation.” (Palmer, supra, 58 Cal.4th at p. 118.) “[A] rule
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limiting trial courts’ discretion to accept conditional pleas predicated on stipulations by
counsel would raise potential concerns for the defense function.” (Id. at p. 119.)
Defendant relies on People v. Ramirez (2006) 141 Cal.App.4th 1501 (Ramirez),
where the defendant moved to withdraw his plea because he was unaware of the contents
of a police report when he entered his no contest plea. (Id. at p. 1505.) Defendant argues
that the Ramirez court found that even though the contents of the report did “not
uncontrovertibly exonerate” the defendant, the fact that the report provided the defendant
with notice of “possible” defenses and the fact that the defendant had asserted in his
declaration that “earlier discovery of the report would have affected his decision to enter
a plea” provided sufficient evidence that his plea was not knowing and voluntary and that
he was prejudiced by the trial court’s denial of his motion to withdraw the plea. (Id. at
pp. 1506, 1508.)
Ramirez, however, is distinguishable. First, Ramirez addressed a motion to
withdraw a plea under section 1018.4 (Ramirez, supra, 141 Cal.App.4th at pp. 1505–
1506.) Here, however, as discussed above, the issue is whether the trial court abused its
discretion when it accepted defendant’s plea under section 1192.5. Furthermore,
defendant fails to note that in Ramirez, the supplemental police reports containing
exculpatory evidence were not disclosed by the prosecution until after defendant entered
his plea of no contest. (Id. at pp. 1504–1506.) Consequently, the defense counsel in
Ramirez was not able to review the contents of the supplemental reports until after he
4 Section 1018 provides, “[o]n application of the defendant at any time before
judgment … the court may … for good cause shown, permit the plea of guilty to be
withdrawn and a plea of not guilty substituted.… This section shall be liberally
construed to effect these objects and to promote justice.” (§ 1018; Ramirez, supra, 141
Cal.App.4th at p. 1506.) “ ‘Mistake, ignorance or any other factor overcoming the
exercise of free judgment is good cause for withdrawal of a guilty plea,’ ” but must be
shown by “ ‘clear and convincing evidence.’ ” (Ramirez, at p. 1506; People v. Cruz
(1974) 12 Cal.3d 562, 566.)
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advised the defendant to enter his plea. (Id. at pp. 1506–1507.) The defense counsel in
Ramirez stated that the supplemental report “would have affected [his] evaluation of the
case, and would have altered [his] advice to [the defendant] regarding whether he should
accept the plea bargain agreement. … [He] would have advised [the defendant] to go
forward with the preliminary hearing before deciding whether or not to accept the plea
bargain offer.” (Id. at p. 1507.) The Ramirez court found that the defendant’s showing of
good cause was sufficient that his ignorance of the supplemental police reports materially
affected his decision to accept the plea agreement, due to the extrinsic cause of the state’s
suppression of the reports until after his plea was entered. (Id. at p. 1506.)
Here, however, defendant does not contend that the prosecution suppressed
evidence, creating an extrinsic cause that overcame his free exercise of judgment before
entering his plea. Defendant notably does not contend that the police reports here were
unavailable to defense counsel or that defense counsel had not reviewed the contents
before advising him to enter the plea; nor does he contend that defense counsel would
have altered his advice to defendant or that defense counsel’s advice was ineffective.
Here, defense counsel and the prosecutor, both officers of the court, stipulated to a factual
basis for defendant’s plea. Defendant affirmed during the plea colloquy that he had
discussed the elements of the crime with his counsel, and that he was satisfied with
counsel’s advice. Defendant also affirmed that he understood, initialed, and signed the
plea agreement, in which he initialed the boxes that read, “I understand the charge(s)
against me, and the possible pleas and defenses to the charge(s),” and “I have had enough
time to speak with my attorney regarding the strengths of the case against me [and] any
possible defenses that I may have ….” As stated above, the factual basis and plea
colloquy were sufficient to establish that defendant was satisfied with defense counsel’s
advice before entering his plea.
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Accordingly, defendant has not shown that he was prejudiced by not being
provided with notice of possible defenses because he had not reviewed the contents of the
police reports prior to entering his no contest plea.
4. Harmless Error
Regardless, any error was harmless because the contents of the record support a
finding of a factual basis for defendant’s conditional plea. (People v. Coulter (2008) 163
Cal.App.4th 1117, 1122; Holmes, supra, 32 Cal.4th at p. 443.) The police reports state
that both the victim and another witness saw defendant point a gun at the victim while
defendant took the victim’s money, but also state that another witness had his eyes
closed, another did not see the gun as defendant exited the home, and the witness who
saw him with the gun was intoxicated. Despite the issues with some of the witnesses, the
police reports still provide a sufficiently precise factual account of the charged offense of
robbery, and the police reports and plea colloquy are adequate to establish that defendant
was cognizant that his acts constituted the offense with which he was charged.
Accordingly, any error is harmless.
DISPOSITION
The judgment is affirmed.
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