P. v. Allen

Filed 8/20/07 P. v. Allen 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

LaShawnda Trenell OBrien Allen pled guilty to a single count of receiving stolen property. (Pen. Code,  496, subd. (a).)^[1] The plea agreement also provided that the People would dismiss the remaining 27 counts in the complaint, and Allen would serve an aggravated term of three years. After obtaining a certificate of probable cause ( 1237.5), Allen argues the judgment must be reversed because the trial court violated section 1192.5 by failing to obtain an adequate factual basis for her plea. We conclude the trial court erred, but find the error harmless and therefore affirm the judgment.

PROCEDURAL SUMMARY

Allen and three codefendants were charged in a 28-count complaint with various crimes primarily related to the theft of personal property, theft of personal identifying information, and the receipt of stolen property. Allen agreed to plead guilty to count III of the information, receipt of stolen property ( 496, subd. (a)), with an agreed aggravated sentence of three years. In exchange, the prosecutor agreed to dismiss all remaining counts against all defendants.

DISCUSSION

Allen argues her judgment of conviction must be reversed because the trial court failed to obtain an adequate factual basis for her plea.

There are two types of guilty or no contest pleas in California: (1) a conditional plea, where the plea is conditioned upon receipt of a particular disposition; and (2) an unconditional or open plea. [Citation.] When taking a conditional plea of guilty to an accusatory pleading charging a felony, a trial court is required by Penal Code section 1192.5 to 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. (People v. Holmes (2004) 32 Cal.4th 432, 135 (Holmes), fn. omitted.)

Allens plea was conditional; she agreed to plead guilty to a single count of receiving stolen property in exchange for dismissal of the other 27 counts and a maximum term of three years in prison. The trial court, therefore, was required by section 1192.5 to make certain there was a factual basis for the plea.

Holmes set forth the procedures a trial court may use to comply with the requirements of section 1192.5. We conclude that in order for a court to accept a conditional plea, it must garner information regarding the factual basis of the plea from either defendant or defense counsel to comply with section 1192.5. If the trial court inquires of the defendant regarding the factual basis, the court may develop the factual basis for the plea on the record through its own examination by having the defendant describe the conduct that gave rise to the charge [citation], or question the defendant regarding the factual basis described in the complaint or written plea agreement. [Citations.] If the trial court inquires of defense counsel regarding the factual basis, it should request the defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.] Under either approach, a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate. [Citation.] (Holmes, supra, 32 Cal.4th at p. 436.)

Holmes also set forth the standard we must utilize when reviewing a claim that the requirements of section 1192.5 were not met. [A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial courts 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. [Citation.] A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea. [Citations.] (Holmes, supra, 32 Cal.4th at p. 443.)

Our inquiry, therefore, consists of a two-step process. First, we must determine if the trial court abused its discretion in obtaining an adequate factual basis for the conditional plea. Second, if the trial court abused its discretion, we must determine if the error was harmless because the record contains an adequate factual basis for the plea.

In an attempt to obtain a factual basis for the plea, the trial court made the following inquiry of the attorneys: [Defense counsel], do you join your client in her waiver of rights and stipulate to a factual basis for the plea? Defense counsel and the prosecutor both entered into the requested stipulation.

As stated above, the Supreme Court recommended that a trial court refer to a specific document when seeking a stipulation from counsel for a factual basis for the plea. In reaching this conclusion, the Supreme Court specifically did not decide if merely obtaining a stipulation from the attorneys, as was done in this case, was adequate compliance with the requirements of section 1192.5. (Holmes, supra, 32 Cal.4th at p. 441, fn. 8.)^[2]

In People v. McGuire, supra, 1 Cal.4th at page 283, Division Four of the First District Court of Appeal held, in a split decision, that a mere stipulation by the attorneys without reference to a particular document complied with the requirements of section 1192.5. McGuire has not met with universal acceptance. We have not found a single case that agreed with McGuires holding. Most cases have followed this courts lead in People v. Wilkerson, supra, 6 Cal.App.4th at page 1577, which held that a stipulation to a factual basis for the plea was sufficient when the stipulation referred to the police reports, and the police reports contained the necessary factual basis.

We will join the line of cases that conclude that a stipulation to a factual basis for the plea that does not refer to a specific document is an abuse of discretion. (See, e.g., People v. Mickens, supra, 38 Cal.App.4th at pp. 1564-1565.) As noted in the McGuire dissent, Such a stipulation reveals no more of a factual basis supporting the plea than the plea itself. (People v. McGuire, supra, 1 Cal.App.4th at p. 286 (dis. opn. of Poch, J.).)

Having concluded the trial court abused its discretion in failing to obtain an adequate factual basis for the plea, we turn to the second step of our analysis -- does the record establish that the error was harmless? Our analysis is made difficult by the paucity of information in the record, although this state of affairs is consistent with a negotiated disposition. A probation report was not prepared because the plea included an agreed‑upon term of three years in prison. There is no preliminary hearing transcript because the plea was entered before the preliminary hearing. There is no police report in the record because, considering there were 28 counts charged, it must have been voluminous.

We are left, therefore, with the charging document as the only basis for finding a factual basis for the plea. Although far from overwhelming, we conclude there were sufficient facts in the complaint to provide a factual basis for the plea.

Count 3 of the complaint charges Allen, and three others, with unlawfully receiving credit cards that had been stolen from a victim identified by name. The complaint also alleges the crime occurred between January 1, 2006, and August 16, 2006. Finally, the complaint alleges that Allen knew the credit cards were stolen when they came into her possession. These acts, according to the complaint, constituted a violation of section 496, subdivision (a). Thus, the complaint provided (1) the approximate date of the crime; (2) the name of the victim; (3) the specific type of stolen property that was received by Allen; and (4) that Allen acted with knowledge of the stolen nature of the property. These are the elements necessary to support a conviction. (CALCRIM No. 1750.)

Our conclusion is consistent with Holmes. The Supreme Court held an adequate factual basis for the plea existed where the trial court asked the defendant if he had received a copy of the complaint and whether he did what was described in the complaint. The Supreme Court noted that the complaint contained the charged offense, the names of defendant and the victim, the date and location of the charged offense, and a brief description of the factual basis for the charged offense. (Holmes, supra, 32 Cal.4th at p. 443.)

Although the trial court erred in not obtaining a sufficient factual basis for the plea, we conclude the error harmless.

DISPOSITION

The judgment is affirmed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

LEVY, Acting P.J.

_____________________

HILL, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] All further statutory references are to the Penal Code unless otherwise stated.

^[2] Footnote 8 states: A closer question is raised when counsel stipulates to a factual basis for the plea under section 1192.5, absent reference to a particular document that provides an adequate factual basis. (People v. McGuire (1991) 1 Cal.App.4th 281, 286 (dis. opn. of Poch, J.) [Such a stipulation reveals no more of a factual basis supporting the plea than the plea itself.].) While we have no occasion to decide whether McGuire is correct, we agree with the court in [People v.] Wilkerson [(1992)] 6 Cal.App.4th [1571,] 1577, that the better approach under section 1192.5 is for a stipulation by counsel to a factual basis to be accompanied by reference to a police report (Wilkerson, at p. 1577 [So stipulated, your Honor, based on the police reports included in the complaint.]), reference to the probation report or preliminary hearing transcript (People v. Gonzalez (1993) 13 Cal.App.4th 707, 714-715), or reference to grand jury testimony (People v. Mickens (1995) 38 Cal.App.4th 1557, 1563-1565 (Mickens)).