P. v. Kirk

Filed 9/10/07 P. v. Kirk CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Eugene L. Huseman, Judge. (Retired judge of the Santa Barbara Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Reversed with directions.

Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant pleaded guilty to possession of a controlled substance, methamphetamine (Health & Saf. Code, 11377, subd. (a)) and admitted that he had sustained two prior prison terms (Pen. Code, 667.5, subd. (b)) and purportedly a prior strike conviction (Pen. Code, 667, subd. (c)(e)(1), 1170.12, subd. (c)(1)). In return, the remaining allegation was dismissed, and defendant was promised a sentencing lid of four years. Following a sentencing hearing, defendant was sentenced to a total term of four years in state prison: the midterm of two years doubled to four due to the prior strike allegation.

Defendant appealed, and his appointed appellate counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting that this court undertake a review of the entire record. We subsequently found potentially meritorious issues, vacated submission of the matter, and ordered supplemental briefing addressing issues pertaining to defendants waiver of rights and admission of his prior strike allegation. For the reasons explained below, we find that the trial court erred in taking defendants plea as to his prior strike conviction.

I

FACTUAL BACKGROUND^[1]

On October 29, 2005, during a combined safety inspection and DUI (driving under the influence) checkpoint, Riverside County sheriffs deputies found a plastic baggie containing 0.29 grams of methamphetamine as well as a straw containing methamphetamine residue inside defendants drivers side car door pocket. Defendant admitted the baggie and straw belonged to him. He was subsequently arrested.

II

DISCUSSION

Defendant contends the trial court failed to obtain his admission of his prior strike conviction and waiver of his constitutional rights, and therefore this court should simply dismiss the strike allegation and otherwise leave intact the trial courts sentence. In the alternative, defendant argues this court should remand the matter with directions to resentence him within the parameters of his guilty plea and valid admission, i.e., a guilty plea to the substantive offense and admission of the two prior prison terms with a four-year state prison lid.

The People contend that this appeal must be dismissed for defendants failure to perfect his appeal and for his failure to obtain a certificate of probable cause to challenge the validity of his admission of the prior strike. In the alternative, the People claim any error in regard to defendants admission of his prior 2002 robbery conviction can only be remedied by vitiation of the plea and restoration of the statusquoante.

A. Procedural Background

On July 25, 2006, defendant entered into the plea agreement set out in detail, ante.

In the felony plea form, defendant initialed all the paragraphs in the [a]dvisement of [r]ights section as well as applicable paragraphs in the [c]onsequences of [p]lea section. The plea form, in relevant part, noted that defendant would plead guilty to Health and Safety Code section 11377, subdivision (a); that his custody term shall not be more than 4 years (top); and that count 2 would be dismissed. The plea form didnot specify that defendant would also be admitting his two prior prison term allegations or his prior 2002 robbery conviction allegation. In addition, as part of the plea, defendant indicated that he did not waive any right to appeal that [he] may have.

At the time of the taking of the plea on the substantive offense, defendant acknowledged to the court that he was entering into a plea and giving up certain constitutional rights. The court obtained a waiver of defendants constitutional rights to a jury trial, to a speedy trial, to confront and cross-examine witnesses, and to call witnesses and the privilege against self-incrimination. Defendant thereafter pleaded guilty to Health and Safety Code section 11377, subdivision (a) (count 1).

The following colloquy then occurred between defendant and the court:

THE COURT: Directing your attention now to the allegation of the first prior offense which alleges that in August 2002 . . . you were convicted of the crime of robbery, a violation of section 211 of the California Penal Code, for which you served a period of time in custody. Do you admit or deny that that occurred, sir?

THE DEFENDANT: That did occur.

THE COURT: Do you admit on the second prior allegation that you were convicted of the crime of manufacture of a controlled substance, a felony, a violation of section 11379.6 subdivision ([a]), which you served a term of prison for that offense? Do you admit or deny that?

THE DEFENDANT: I admit.

THE COURT: Thank you. Do you understand that pursuant to the plea agreement in this case . . . you have an exposure of approximately ten years. The plea agreement here is four years or 48 months . . .  [] . . . [] . . . with a lid of 48 months.

The matter was referred to the probation department and continued for a sentencing hearing.

At the time of the taking of the plea, the reporters transcript is clear that defendant did not admit to the prior 2002 robbery conviction as a strike; defendant merely admitted that he had served a period of time in custody for that crime. The reporters transcript is also devoid of any indication that defendant waived his constitutional rights as to the priors before admitting the prior prison term allegations; likewise, there is no indication that the court found that defendant freely, knowingly, and intelligently waived his constitutional rights or that defendants plea and admissions were free and voluntary. The courts minute order of the plea hearing, however, indicates that defendant waived his constitutional rights prior to pleading guilty and admitting to the prior prison term allegations; that the court found defendant freely, knowingly, and intelligently waived his constitutional rights; and that the court found that defendants plea and admissions were free and voluntary. However, neither the reporters transcript nor the courts minute order indicate that the court found there was a factual basis for the plea.

The probation report notes, Although the case print does not indicate the above strike allegation was admitted or found true, the District Attorney, Defense Counsel and the defendant all indicated the strike admission is part of the plea agreement.

The sentencing hearing was held on September 19, 2006. At that time, the court indicated that it had read and considered the motion to dismiss the prior strike allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Following argument from counsel and a statement from defendants brother, the court denied the motion to strike defendants prior strike conviction. The court then sentenced defendant to four years in state prison, explaining, And the Court is therefore going to impose the middle term for a violation of Health and Safety Code Section 11377(a). The middle term is two years. [] Since I . . . denied the Romero motion to strike the strike, the two years will be doubled, so thats four years. [] In addition to the Health and Safety Code Section 11377(a) offense, there were two 667.5(b) prison priors that [defendant] admitted. [] Im going to strike both of those prison priors in the interests of justice under Penal Code section 1385. And I think that there is sufficient reason to do so, and that it is truly just to do so. The court thereafter explained its reasons on the record in dismissing the two prior prison term allegations.

Defense counsel filed a notice of appeal on behalf of defendant. In the notice of appeal form, defense counsel checked the box that states the appeal follows a jury or court trial. (Pen. Code, 1237(a).) Neither defendant nor defense counsel obtained or attempted to obtain a certificate of probable cause.

B. Appealability

When a defendant has pleaded guilty or no contest (nolo contendere) to a criminal charge, the defendant may not appeal the judgment of conviction on issues going to the legality of the proceedings unless, within 60 days of rendition of the judgment, he or she files with the trial court a written statement executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds for appeal and, within 20 days after that filing, the trial court executes and files a certificate of probable cause for appeal. (Pen. Code, 1237.5; Cal. Rules of Court, rule 31(d) [now rule 8.304(b)].) (In re Chavez (2003) 30 Cal.4th 643, 646-647 (Chavez).)

[W]hen a defendant pleads guilty or no contest and is convicted without a trial, only limited issues are cognizable on appeal. A guilty plea admits every element of the charged offense and constitutes a conviction [citations], and consequently issues that concern the determination of guilt or innocence are not cognizable. [Citations.] Instead, appellate review is limited to issues that concern the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea. (Chavez, supra, 30 Cal.4th at p. 649.) Such issues are insanity at the time of the plea, ineffective waiver of constitutional rights, ineffective assistance of counsel, a plea obtained by misrepresentation, or other abuse of discretion in denying a motion to withdraw a guilty plea. In later decisions, the Courts of Appeal have found additional issues to be appealable, including the denial of pretrial diversion, the denial of a motion to dismiss based upon collateral estoppel, the failure to seek restitution prior to the filing of criminal charges of welfare fraud, and violation of the interstate agreement on detainers. (Id. at p. 649, fn. 2.)

Further, to obtain appellate review of these limited issues, the defendant must obtain a certificate of probable cause from the trial court authorizing the appeal. (Pen. Code, 1237.5^[2]; Chavez, supra, 30 Cal.4th at pp. 650-651.) If the defendant obtains a certificate of probable cause, he or she may raise issues concerning the jurisdiction of the court or the legality of the plea proceedings. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178.)

The failure to obtain a certificate of probable cause bars appellate review of matters resolved in the plea agreement. (People v. Buttram (2003) 30 Cal.4th 773, 780-782.) In cases where there were grounds for issuance of a certificate, but none was obtained, a defendant may obtain review by filing a writ of habeas corpus alleging counsel provided ineffective representation by failing to obtain the certificate. (See People v. Bautista (2005) 129 Cal.App.4th 1431, 1435-1436.)

An exception to the certificate requirement applies to errors that occurred after the taking of the plea and that do not challenge the validity of matters resolved in the plea agreement. (People v. Buttram, supra, 30 Cal.4th at pp. 780-782, 790.) If defendants contention that the court had no authority to use the prior 2002 robbery conviction as a strike is viewed as a challenge to a postplea sentencing decision rather than an error in the entry of the plea, the error occurred after the taking of the plea. Nevertheless, the contention still relates to the validity of the plea. Indeed, defendants contention that the court failed to take his admission of the prior 2002 robbery conviction, and therefore it cannot be used as a strike, directly challenges the validity of the plea. The only matter left open after the plea agreement regarding the strike prior was the sentencing courts decision whether to dismiss the strike prior. To make this decision, the trial court was not revisiting the issue of whether the robbery conviction qualified as a strike but was considering whether dismissal of the strike was warranted because defendant was not the type of defendant targeted by the three strikes law. (See People v. Wallace (2004) 33 Cal.4th 738, 747-748.) Because the reporters transcript^[3]shows the courts failure to advise defendant of his constitutional rights prior to taking defendants admission of the prior convictions, the courts failure to make a finding that the plea and admissions were entered into freely and voluntarily, the courts failure to obtain defendants admission of the strike prior, and the courts failure to advise defendant of the penal consequences of admitting the prior prison terms and the strike characterization of the prior robbery conviction attack the validity of the plea, a certificate of probable cause was required to reach defendants claims. (See People v. Panizzon (1996) 13 Cal.4th 68, 78; People v. Arwood (1985) 165 Cal.App.3d 167, 172.) Defendants failure to obtain the certificate bars our review of this issue on appeal.

Nonetheless, for reasons explained, post, we will address the issues at hand.

B. Merits of Defendants Claims

Although the California Supreme Court has instructed the Courts of Appeal to refrain from reaching the merits in cases where a defendant failed to obtain a probable cause certificate even if such an approach might forestall a habeas corpus petition (People v. Panizzon, supra, 13 Cal.4th at p. 89, fn. 15), it has also recently encouraged the Courts of Appeal to include in Wende opinions information that might be useful in, or even forestall, subsequent habeas corpus proceedings (People v. Kelly (2006) 40 Cal.4th 106, 110). In addition, we note that defendants trial counsel was ineffective, and we find no plausible explanation for his lack of competency in failing to properly fill out the notice of appeal form and to obtain a certificate of probable cause in this case. (See Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Pope (1979) 23 Cal.3d 412, 424-425.) Given the California Supreme Courts recent directive in the context of Wende opinions and the apparent ineffective assistance of trial counsel here, we will address this issue on its merits notwithstanding defendants failure to obtain a certificate of probable cause.

Here, the record demonstrates the trial court made several errors at the time of the taking of the plea. [B]efore accepting a criminal defendants admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. [Citation.] Proper advisement and waivers of these rights in the record establish a defendants voluntary and intelligent admission of the prior conviction. [Citations.] (People v. Mosby (2004) 33 Cal.4th 353, 356.) [I]f the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of the entire proceeding to assess whether the defendants admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. [Citation.] (Id. at p. 361.)

We cannot find that defendant was properly advised of his rights and waived these rights based on the totality of the circumstances. We agree with and adopt the following statement of our colleagues in People v. Carroll (1996) 47 Cal.App.4th 892, 897-898: The trial courts failure to follow the clear and long-established rules laid down by the Supreme Court cannot be cured by any effort on our part to scour the record for scraps of information the defendant might have gleaned on his own in assisting him in making an informed decision. [] . . . [] The consequences of admissions of priors in cases such as this are too grave and the giving of a proper warning far too easy to justify this court in searching through the record for something to save the admission.

In the present case, the trial court, among other errors, did not advise defendant of his rights in conjunction with a trial on his prior convictions, and there is no legitimate basis for imputing such knowledge to defendant. Without a clear record indicating that defendant understood his rights and was willing to waive them, we cannot find that defendants admissions were knowing, voluntary, and intelligent. Thus, there was no valid waiver of defendants constitutional rights.

Even if we were to find that the trial court adequately advised defendant of his constitutional rights and properly obtained a waiver of those constitutional rights based on the court having just advised defendant of his rights as to the substantive offense, the record is devoid of any evidence that defendant admitted the prior 2002 robbery conviction as a strike. Even though defendant admitted the prior robbery conviction, he did so in the context of admitting that he had suffered a prior prison term for that conviction ( 667.5). In addition, defendants plea form fails to include any information regarding the prior enhancement allegations, i.e., whether defendant would be admitting the prior prison term allegations or prior strike conviction allegation. We cannot find under the circumstances of this case that, because defendant admitted the prior prison term allegations, his admission also extended to admitting the prior robbery conviction as a strike.

The Peoples reliance on People v. Welge (1980) 101 Cal.App.3d 616 is misplaced. Welge is not instructive, as it does not set forth or describe the terms of the admission.

The People also rely on People v. Jackson (1985) 37 Cal.3d 826. However, that case is distinguishable from the present case. There, the defendant entered into a plea bargain pursuant to which he admitted an enhancement allegation that he had been previously convicted of a residential burglary. (Id. at p. 830.) On appeal, he argued that the prior conviction was for second degree burglary and therefore did not necessarily involve burglary of a residence. (Id. at p. 833.) The Supreme Court held his admission of the enhancement was conclusive: There is no rule . . . which bars the defendant from admitting that a prior burglary involved entry into a residence, even if the prosecution is unable to prove the allegation. We permit a defendant in connection with a plea bargain to plead guilty to an offense with which he was not charged, and which the prosecution cannot prove, so long as it is reasonably related to defendants conduct. [Citation.] A defendant should have the same latitude with respect to enhancements . . . . (Id. at p. 836.)

Here, the record is clear that defendant admitted the prior robbery conviction in the context of serving a prior prison term for that conviction. There is no evidence that he admitted the prior strike conviction, albeit it involved the same 2002 robbery conviction. We conclude that there is no evidence in the case that defendant admitted the prior strike conviction.

We also note, though not addressed by either party, that the court erred in failing to ensure there was a factual basis for the plea. Even though a guilty plea admits the elements of the offenses and enhancements, the trial court has a statutory duty to ensure that there is a factual basis to support a negotiated plea before accepting the plea. ( 1192.5.) Although on appeal a defendant may not challenge the sufficiency of the evidence to support admitted offenses and enhancements (People v. Wallace, supra, 33 Cal.4th at p. 750), there is recent authority indicating a defendant may bring an appellate challenge to the legality of the plea proceedings based on a trial courts failure to ensure there is a factual basis.^[4]

Section 1192.5, by its terms, concerns the procedure for taking a plea of guilty or nolo contendere that specifies the punishment to be imposed or the exercise by the court . . . of other powers legally available to it. In other words, [s]ection 1192.5 formalizes the procedures to be followed by the trial courts in dealing with negotiated pleas, commonly known as plea bargaining. [Citation.] (People v. Hoffard, supra, 10 Cal.4th at p. 1181.)

When a trial court is accepting a conditional plea, the Supreme Court has provided clear guidelines that must be met in ensuring that an adequate factual basis for the plea exists. We conclude that in order for a court to accept a conditional plea, it must garner information regarding the factual basis for 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 that 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.] (People v. Holmes (2004) 32 Cal.4th 432, 436.)

It is clear that the trial court here failed to comply with the Holmes requirements. In fact, the trial court did not even state that a factual basis existed for the plea. In addition, it failed to make any inquiry of either defendant or his counsel to support a finding that a factual basis for the plea existed. This failure constitutes an abuse of discretion. (People v. Holmes, supra, 32 Cal.4th at p. 443.)

However, the failure was harmless. Failure to comply with the requirements of section 1192.5 is harmless where the contents of the record support a finding of a factual basis for the conditional plea. [Citations.] (People v. Holmes, supra, 32 Cal.4th at p. 443.) The record in this case includes the preliminary hearing transcript from which a factual basis for the plea can be obtained.

Because of the litany of errors committed by the trial court at the time of the taking of the plea, especially the failure to have defendant admit to the prior strike conviction, and the errors committed by counsel in preparing defendants plea form, we have no choice but to remand the matter. The question remains what the proper disposition in these circumstances should be. Defendant argues we should simply dismiss the strike allegation and otherwise leave intact the trial courts sentence or remand the matter with directions to resentence him within the parameters of his guilty plea and valid admissions. The People respond we should restore the status quo ante. We are inclined to agree with the People.

Under the circumstances of this case, we conclude the proper procedure is to restore the parties to the status quo ante, as is done when a defendants plea or admission must be reversed on appeal due to inadequate advisement of rights.^[5] (In re Sutherland (1972) 6 Cal.3d 666, 672; People v. Serrato (1973) 9 Cal.3d 753, 765; People v. Hickey (1980) 109 Cal.App.3d 426, 435; see also People v. Kirkpatrick (1972) 7 Cal.3d 480, 483-485, 487 [Tahl error]; People v. Campbell (1999) 76 Cal.App.4th 305, 310-311 [Yurko error].) As explained by our Supreme Court in Sutherland: At the time defendant pleaded guilty to one count, the prosecutor moved to dismiss the four remaining counts and his motion was granted. Since by granting relief we are in effect permitting defendant to withdraw his guilty plea, the ends of justice require that the status quo ante be restored by reviving the four dismissed counts. We therefore order all five counts restored to the superior court calendar [citations], to be either tried or disposed of in some other appropriate manner. (Sutherland, at pp. 671-672.) The same sort of disposition was made when the defendant successfully attacked his guilty plea by direct appeal in Kirkpatrick, at page 487.

The above-cited cases illustrate that a defendant who successfully attacks a judgment that is in excess of the courts jurisdiction is not necessarily entitled to claim the protection of that invalid judgment as an absolute limitation upon what the court may do thereafter. In the case at bench, the orders made at the time of the taking of the plea and the sentencing court in ruling on the Romero motion and sentencing defendant under the three strikes law were in excess of the courts jurisdiction and must be set aside.

III

DISPOSITION

The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. Defendants guilty plea and admissions are vacated.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

MILLER

J.

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^[1] The factual background is taken from the probation officers report.

^[2] All future statutory references are to the Penal Code unless otherwise stated.

^[3] Rendition of judgment is an oral pronouncement. Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.) In other words, the oral pronouncement is controlling. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416.)

^[4] We will assume for purposes of our analysis that a challenge based on a lack of factual basis for a negotiated plea is an attack on the legality of the proceedings cognizable on appeal.

^[5] Upon remand, as the People point out, the parties may bring up any clerical error in the abstract of judgment.