People v. Herrera CA2/1

Filed 11/25/20 P. v. Herrera CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B306718

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA028871) v.

MICHAEL ANTHONY HERRERA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Emily S. Garcia Uhrig, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ____________________________

In June 1998, a jury convicted Michael Anthony Herrera of first degree residential burglary. In a subsequent court trial, the court found that Herrera suffered three prior convictions which qualified as strikes under the “Three Strikes” law. (Pen. Code, § 1170.12.)1 Two of the prior convictions also qualified as five-year enhancements under section 667, subdivision (a)(1). In addition, one prior conviction qualified for a one-year enhancement under section 667.5, subdivision (b). The trial court sentenced Herrera to prison for 35 years to life. Herrera appealed from the judgment of conviction. This court affirmed the judgment except that it remanded the case to the trial court to impose or strike the one-year enhancement. The trial court subsequently struck the one-year enhancement. On February 7, 2020, Herrera filed a petition for resentencing pursuant to section 1618, subdivision (a). Herrera did not challenge his robbery conviction. He argued that when he pleaded guilty to the prior offenses he was not “aware that an offense would be used against him to strike him out with a 35 years to life sentence under any kind of future legislation.” Herrera included a declaration stating that his prior strike convictions were based on no contest plea agreements. The trial court summarily denied Herrera’s petition because “[p]etitioner has identified no provisions in the plea agreements underlying his prior ‘strike’ convictions that purport to waive future benefits and thus, that implicate Penal Code section 1016.8.” Herrera appealed, and his appointed counsel filed a brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496,