Filed 9/19/18 P. v. Moreno CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Presiding Judge. Affirmed.

Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jack Moreno pled no contest to four felony counts based on his sexual activities with a minor under the age of 14. Relying on a verbal misstatement by the trial judge in referencing the correct statutory subdivision during the plea colloquy, Moreno now argues that he actually pled to a misdemeanor in count 3. But as we read the record, despite the judge's misstatement Moreno was reasonably aware at all times that he was pleading to a felony in count 3. Under these circumstances, his felony conviction does not violate due process and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Moreno began picking up the 13-year-old victim from school. At the time, the girl was dating Moreno's teenage son.[1] On at least one occasion, Moreno kissed the girl on the mouth, touched her genitals, and orally copulated her. The information charged Moreno with four felonies: (1) orally copulating on a person under age 14 (§ 288a, subd. (c)(1), count 1); (2) contacting a minor with the intent to commit a sexual offense (§ 288.3, subd. (a), count 2); (3) meeting with a minor for a lewd purpose (§ 288.4, subd. (b), count 3); and (4) committing a lewd act upon a child (§ 288, subd. (a), count 4).[2]

Section 288.4 the basis of count 3, sets forth two distinct offenses. Subdivision (a) describes the act of planning a meeting with a minor for the purpose of engaging in sexual activities. This crime is a misdemeanor punishable by a fine of up to $5,000 and/or jail time of no more than one year. (§ 288.4, subd. (a)). By contrast, subdivision (b) is a felony that proscribes going through with the plan and actually meeting with a minor to commit sexual acts. This crime is punishable by up to four years in prison. (§ 288.4, subd. (b)).[3]

Moreno's information described count 3 as "a felony, namely: meeting minor for lewd purposes a violation of Section 288.4(b) of the Penal Code of the State of California." The minutes from the arraignment, which Moreno attended, reflected that count 3 charged a violation of section 288.4(b). Moreno also attended six subsequent pre-trial hearings, and the minutes similarly reflected the section 288.4(b) charge.

Moreno entered no contest pleas to all four counts. He pled no contest to counts 1, 2, and 4 as planned; however, during the plea colloquy as to count 3, the judge verbally asked Moreno to plead to "a felony specifically meeting a minor for lewd purposes, violation of Section 288.4(a) of the Penal Code." (Italics added.) Following this verbal misstep, Moreno orally agreed to the plea. He also signed the plea form. Moreno's post-plea statement of mitigation indicated that he was charged under section 288.4(b). Based on Moreno's no contest pleas, the trial court convicted him for all four felony counts, including section 288.4(b), and sentenced Moreno to 12 years in prison.

DISCUSSION

Moreno contends that the trial court's substitution of the misdemeanor subsection during the plea colloquy fundamentally changed his understanding of the nature of the charges against him such that the court violated his right to due process. He further contends that all post-plea document references to his felony plea, including those within the final abstract of judgment, were clerical errors due to the last minute change made at the plea colloquy. Because every hearing and document leading up to the colloquy informed Moreno of his felony charge under section 288.4(b), and every post-plea hearing and document reflected his no contest plea to the felony charge, the one misstatement did not mislead Moreno so as to render the resulting sentence a violation of due process.

Due process requires that a defendant be informed of the specific charges against him so he may properly prepare his defense and not be "taken by surprise." (People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) The defendant must be notified of the specific statutory charge; merely alleging the facts needed to support a conviction under a particular code section is insufficient, for one set of facts could support multiple charges, and a defendant is entitled to know which exact charges he is faced with. (People v. Wilford (2017) 12 Cal.App.5th 827, 837–838 (Wilford).)

Moreno cites two California cases, Wilford, supra, 12 Cal.App.5th 827 and People v. Sawyers (2017) 15 Cal.App.5th 713 (Sawyers). Both reversed trial court decisions because the defendant was taken by surprise at sentencing with a sentence greater than anticipated, based on a statute the defendant had no knowledge of. (Wilford, at p. 836; Sawyers, at pp. 719–720.) In Wilford, we reversed because the defendant's sentence was based on a sentencing triad under a code section that the defendant had never been advised of. (Wilford, at p. 836.) Similarly in Sawyers, the appellate court reversed a conviction because the defendant was not informed of a strike offense that the trial court used to double his sentence. (Sawyers, at pp. 719–720.) Whereas both of those defendants were caught entirely by surprise at sentencing, Moreno had been repeatedly informed before the plea colloquy that he was being charged with four separate felonies. In addition to his information, his arraignment and multiple pre-plea hearings indicate he was aware that he was being charged with four felony counts, including section 288.4(b).

As a result, the court's plea oral misstatement is akin to a clerical error that a trial court may correct. (See People v. Menius (1994) 25 Cal.App.4th 1290, 1294–1295 (Menius).) The trial court in Menius misstated the statutory subsection for an enhancement, similar to what occurred in this case. (Id. at p. 1294.) The appellant urged the court of appeal to preserve the effect of a misstatement during sentencing, even though the misspoken subsection was wholly inapplicable to him. (Ibid.) Noting that nothing in the record suggested the court's intent to eliminate the sentence enhancement altogether, the court of appeal affirmed. (Id. at 1295.)[4] Moreno argues that the court's misstatement at his plea colloquy—at which time he could choose how he wanted to plead—created more serious due process concerns than the misstatement in Menius, which took place during sentencing after the charges had already been decided. This distinction is not material, as clerical errors may occur at either stage. A court has the "inherent power to correct clerical errors in its record at any time so as to make these records reflect the true facts . . . whether made by the clerk, counsel, or the court itself." (People v. Schultz (1948) 238 Cal.App.2d 804, 807, italics added.)

Moreno claims that the "b" in section 288.4(b) was illegible on the plea form that he signed and that the illegible letter, combined with the court's misstatement, led him to believe that he was being asked to instead plead to a misdemeanor. First, we do not believe that the writing on the plea form in any way resembled the recordation of "288.4(a)" so as to put Moreno on notice that he was being charged differently than he expected. During the colloquy, Moreno told the court he had signed and initialed the plea form, and when the court asked him if he had any questions about anything stated on the form, Moreno said he had no questions. His response suggests that he was not taken by surprise by the writing on the form.

Second, even if the description of the statutory subdivision on the plea form were illegible, the court asked Moreno if he "commit[ted] a felony specifically meeting a minor for lewd purposes, violation of Section 288.4(a) of the Penal Code of the State of California." (Italics added.) To comport with due process, a defendant must be given "fair notice" of the charges against him so he can reasonably present a defense and avoid unfair surprise. (People v. Robinson (2016) 63 Cal.4th 200, 207.) The court's description of the offense and verbal reference to a "felony" was consistent with Moreno's prior understanding that he was being charged in count 3 with a felony. The only contrary indication to suggest that the court was asking him to plead to a misdemeanor was the judge's slip-of-the-tongue reference to subsection (a) instead of subsection (b). That one letter discrepancy does not mean that Moreno was not reasonably informed of the felony charge.

Moreover, the post-plea conduct of Moreno and his attorney indicates that Moreno understood he pled no contest to a felony violation of section 288.4(b). After Moreno pled to all four counts, the court asked his attorney if he concurred in Moreno's entry of the plea, and the attorney did not raise any question. Further, Moreno's statement of mitigation referred to his pleas to all four felony counts—showing that he understood that he had indeed pled to the felony under section 288.4(b). The trial court shared the same understanding, evidenced by the People's statement in aggravation, minutes from post-plea hearings, and a bench warrant for Moreno's failure to appear.

The context of the proceedings shows that everyone—the prosecutor, the trial court, Moreno, and Moreno's attorney—reasonably understood that Moreno was prepared to and did plead no contest to violating section 288.4(b). Ultimately, the court's one inadvertent misstatement did not change Moreno's fundamental understanding of the charge against him.

DISPOSITION

The judgment is affirmed.

DATO, J.

WE CONCUR:

HALLER, Acting P. J.

GUERRERO, J.