Filed 10/11/17 P. v. Chaparro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. David Andrew Gottlieb, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

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Adrian Luis Chaparro appeals from a judgment of conviction entered upon a negotiated plea of no contest. He obtained a certificate of probable cause based on a supposed grievance regarding the calculation of presentence custody credits. On appeal, however, Chaparro raises issues pertaining to the circumstances under which his plea was entered and accepted. We find the claims to be meritless and thus affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 24, 2015, the Fresno County District Attorney filed an information charging Chaparro with domestic violence (Pen. Code,[1] § 273.5, subd. (a), (f)(1); count 1); kidnapping (§ 207, subd. (a); count 2); making criminal threats (§ 422; count 3); and false imprisonment by violence (§ 236; count 4).) Chaparro was further alleged to have served four prior prison terms within the meaning of section 667.5, subdivision (b). On July 30, 2015, the information was amended to add a charge of felony witness intimidation (§ 136.1, subd. (a)(2); count 5), which was based on a recorded jail call between Chaparro and the alleged victim in counts 1-4. On the same day as the amendment, Chaparro pleaded no contest to count 5 and admitted to having served one prior prison term.

Chaparro’s plea was given in exchange for the dismissal of counts 1-4 and three of the four prior prison term allegations. The terms of the plea agreement also included a stipulated sentence of 16 months in prison for the witness intimidation offense plus a consecutive one-year term for the section 667.5, subdivision (b) enhancement. In the plea form that was filed with the trial court, either Chaparro or one of the attorneys wrote “People v. West” in the space designated for an explanation of the factual basis for the plea.[2]

At the plea hearing, Chaparro responded affirmatively to questions designed to establish the knowing, intelligent, and voluntary nature of his plea. The trial court then inquired of the factual basis for the plea, which is the subject of dispute in this appeal. The relevant discussion between the parties and the judge was as follows:

Trial Court: Do counsel stipulate that the police reports or preliminary hearing transcript may serve as a factual basis for the plea?

Defense Counsel: By the Defense.

Prosecutor: By the People.

Trial Court: Sir, that means that if I were to review those documents, I would find sufficient facts to prove the case beyond a reasonable doubt. Do you understand and agree to that?

Chaparro: If you were to read those transcripts?

Trial Court: Yes, or the police reports. I would find there was enough facts to prove the case beyond a reasonable doubt. Do you understand that?

Chaparro: Would you?

Trial Court: Well, I can do that before sentencing, if you wish me to do that.

Chaparro: Well, if it’s my right?

Trial Court: It’s not necessarily your right. What I’m telling you is this: I need to find that there are sufficient facts to prove the case. Your attorney and the District Attorney have said that they agreed that those reports have enough facts in them to set forth a factual basis. I need you to agree to either their stipulation or I can review the reports prior to sentencing and make sure that there is a factual basis as well. If you wish me to do that before the sentencing, I will definitely do that.

Chaparro: Yeah.

Trial Court: Okay. I will do that.

Chaparro entered his plea subsequent to the above-quoted exchange. The trial court accepted the plea and “reserve[d] the finding of a factual basis for the date of sentencing.” Next, pursuant to the parties’ agreement, the prosecutor moved to dismiss the remaining charges. The motion was granted.

The sentencing hearing took place on August 28, 2015. The proceeding commenced with the trial court stating that it had previously advised the parties of its intention to “read and review the transcript of the jail call that was made in this case in order to support the factual basis on the matter.” The court then acknowledged its review of the transcript and impliedly found an adequate factual basis for the plea. The defense was asked if there was any legal cause to withhold the pronouncement of judgment, and Chaparro’s attorney replied, “No, your Honor.” Chaparro was thereafter sentenced and advised of his appeal rights.

DISCUSSION

“Section 1192.5 requires the trial court to make an inquiry to satisfy itself that there is a factual basis for a conditional plea of guilty or no contest. The purpose of the factual basis requirement is to help ensure that the constitutional standards of voluntariness and intelligence are met.” (People v. Palmer (2013) 58 Cal.4th 110, 118 (Palmer).) The statute technically requires “inquiry to be made of the defendant,” but the trial court may satisfy its duties by obtaining a stipulation from defense counsel. (§ 1192.5; Palmer, supra, 58 Cal.4th at p. 117.) When the latter method is employed, it is preferable that counsel’s stipulation “include reference to a particular document that provides an adequate factual basis, but [no] such reference is required.” (Palmer, at p. 118.) Whatever the trial court’s approach, it “ ‘possesses wide discretion in determining whether a sufficient factual basis exists … [Its] acceptance of the guilty 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.’ ” (Id. at pp. 118-119.)

“Under section 1237.5, a defendant may appeal from a conviction on a plea of guilty or no contest only on grounds going to the legality of the proceedings; such a plea precludes appellate consideration of issues related to guilt or innocence, including the sufficiency of the evidence to support the conviction.” (Palmer, supra, 58 Cal.4th at p. 114.) In other words, the claims before us are cognizable only insofar as they allege procedural error with regard to whether or not the trial court made an adequate inquiry into the factual basis for the plea on count 5. (Id. at pp. 114-116.) With these principles in mind, we turn to the primary argument for reversal.

Chaparro contends that the terms of his plea agreement required the trial court’s factual basis determination to be exclusively based on the contents of “the police reports or preliminary hearing transcript.” However, neither of those documents support the count 5 charge of witness intimidation because that offense occurred on the day of the preliminary hearing and was presumably not brought to the prosecutor’s attention until a later time, hence the subsequent amendment to the information. Put differently, the contents of the police reports and preliminary hearing transcript only pertained to counts 1-4. Chaparro argues that the trial court erred by relying on additional sources of information (i.e., the transcript of the recorded jail call upon which count 5 was based), thereby violating the terms of his plea agreement and depriving him of the benefit of his bargain. We might commend the ingenuity of this argument if it did not so closely approach the line of frivolousness.

“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles.” (People v. Shelton (2006) 37 Cal.4th 759, 767.) The terms of a plea agreement are binding upon all those who consent to them, including the trial court. (People v. Feyrer (2010) 48 Cal.4th 426, 436-437.) As with other contracts, the interpretation of a plea agreement is generally subject to de novo review on appeal. (People v. Paredes (2008) 160 Cal.App.4th 496, 507.)

The de novo standard applies in this case, and in our view the terms of Chaparro’s plea deal did not make the agreement contingent upon the trial court limiting its factual basis review to police reports and the preliminary hearing transcript. The trial court proposed a stipulation concerning those documents after the parties had stated the terms of their agreement for the record. It was a pro forma request made for the court’s own benefit, i.e., to more easily satisfy its statutory duties under section 1192.5. Furthermore, the stipulation was permissive, not restrictive: “[T]he police reports or preliminary hearing transcript may serve as a factual basis for the plea.” If the plea agreement contained the type of restrictive term now alleged on appeal, Chaparro should have objected upon being informed that the trial court was relying on the jail call transcript to make its factual basis determination. Tellingly, he did not.

The above interpretation of the plea agreement disposes of Chaparro’s related argument that the trial court’s actions rendered his plea involuntary. He alleges the “conditioning of the validity of his no contest plea on the trial court establishing a factual basis for the plea made that plea involuntary regardless of the trial court giving the advisements and waivers typical of the standard guilty plea.” Again, the agreement contained no such condition. We are also puzzled by the notion that a trial court’s compliance with the requirements of section 1192.5, which are intended “to help ensure that the constitutional standards of voluntariness and intelligence are met,” could somehow alter the voluntary nature of a defendant’s plea. (Palmer, supra, 58 Cal.4th at p. 118, italics added.)

Were Chaparro able to show a procedural irregularity in the trial court’s actions, we would affirm the judgment for lack of prejudice. “If the trial court fails to make an [adequate] inquiry as to the factual basis for the plea, the appellate court is free to review the record and determine whether the error is harmless, i.e., whether the record contains sufficient information to ensure the defendant committed the acts to which the plea was entered.” (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576; accord, People v. Holmes (2004) 32 Cal.4th 432, 443.) The evidentiary threshold is low; the record must demonstrate “that there is some basis, ‘in fact,’ for the [defendant’s] plea.” (People v. Coulter (2008) 163 Cal.App.4th 1117, 1122.)

Count 5 alleged a violation of section 136.1, subdivision (a)(2), which occurs when someone “[k]nowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.” Chaparro was accused of committing the crime on February 18, 2015 (the date of his preliminary hearing) against the alleged victim in counts 1-4. Although the transcript of the recorded jail call is not part of the record, the probation report contains salient excerpts from that document. Chapparo reportedly told the victim, “You just gotta stay away” and “You’ll just have to not show up.” He also instructed her to “hide at his ‘homey’s’ house.” At the time of his plea, Chaparro’s defense attorney submitted that count 5 did not involve “any violence or force or any threat of same,” and that his client was admitting to having violated the statute by “interfering in any manner with the [administration] of justice.” The record therefore discloses some basis in fact for a plea of no contest.

In a separate claim, Chapparo alleges that the trial court erred by allowing the People to amend the information to add the count 5 charge. We decline to consider the merits of this contention. It is a criminal defendant’s burden to object or otherwise call to the trial court’s attention that an amendment would prejudice his or her rights. (People v. Lewis (1983) 147 Cal.App.3d 1135, 1140.) Failure to object to the filing of an amended information results in a forfeiture of the issue on appeal. (People v. Leonard (2014) 228 Cal.App.4th 465, 481-483; People v. Spencer (1972) 22 Cal.App.3d 786, 799-800.) Even where no express order is entered allowing an amended information, a failure to object is treated as the functional equivalent of consent to its filing. (People v. Beck (1945) 71 Cal.App.2d 637, 641.)

Chaparro acknowledges his failure to object but argues “the waiver doctrine does not apply because the trial court lacked jurisdiction over the charge for dissuading a witness.” He then cites to People v. Ramirez (2008) 159 Cal.App.4th 1412 (Ramirez) for the principle that a trial court may possess fundamental jurisdiction over the parties and the subject matter, but still lack jurisdiction to act in a particular manner or grant certain kinds of relief. We agree that Ramirez is instructive: “Whereas a lack of fundamental jurisdiction may be raised at any time, a challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely asserted.” (Id. at p. 1422.)

Finally, Chaparro seeks relief on grounds that his plea agreement “was illegal” because it violated the provisions of section 1192.7, which provides that plea bargaining is prohibited as to charges of serious felonies, including witness intimidation, “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.” (§ 1192.7, subd. (a)(2), (c)(37).) Two obstacles stand in his way. First, the issue is forfeited because it was not raised below. (People v. Webb (1986) 186 Cal.App.3d 401, 410 (Webb).) Second, as a result of his failure to raise the issue below, coupled with the fact that he received a substantial benefit from his bargain, Chaparro is estopped from asserting this claim on appeal. (Id. at p. 411.) We reject the argument in his reply that Webb was wrongly decided and should not be followed.

DISPOSITION

The judgment is affirmed.

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GOMES, J.

WE CONCUR:

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LEVY, Acting P.J.

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SMITH, J.