P. v. Palmer
Filed 7/2/12 P.
v. Palmer CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID EDWARD
PALMER,
Defendant and Appellant.
H036979
(Santa Clara County
Super. Ct. No.
C1094540)
Defendant,
David Edward Palmer, was convicted by negotiated no contest plea of possession
of 3, 4-methylenedioxy methamphetamine (MDMA) (Health & Saf. Code,
§ 11378). Pursuant to the
imposition of sentence and placed defendant on probation for three years with
various terms and conditions, including that he serve nine months in county
jail and pay a $50 criminal lab analysis fee plus penalty assessments and a
$150 drug program fee plus penalty assessments.
On
appeal, defendant contends that the conviction must be reversed and the matter
remanded so that the trial court can make a proper inquiry into the factual
basis for the plea. He further contends
that the probation order must include a breakdown of all the penalty
assessments ordered. We will affirm.
Defendant
was charged by felony complaint filed December 9, 2010,
with possession of MDMA (Health & Saf. Code, § 11378; count 1) and
possession for sale of marijuana (Health & Saf. Code, § 11359; count
2). Although the complaint states that
“attached and incorporated by reference are official reports and documents of a
law enforcement agency,†the clerk of the superior court has filed a
certificate stating that no attachments to the complaint can be found in the
superior court file.
On
March 18, 2011, defendant entered into a negotiated plea agreement whereby he
pleaded no contest to count 1 on condition that count 2 be dismissed and that
he serve nine months in county jail. On
May 20, 2011, pursuant to the negotiated plea agreement, the court suspended
imposition of sentence and placed defendant on probation for three years with
various terms and conditions, including that he serve nine months in county
jail and pay a $50 criminal lab analysis fee plus penalty assessments and a
$150 drug program fee plus penalty assessments.
Defendant
filed a timely notice of appeal. On October 20, 2011, this court granted
defendant leave to file an amended notice of appeal and a request for
certificate of probable cause. Defendant
filed the amended notice of appeal and request for certificate of probable
cause on October 28, 2011, and the trial court granted the request for a
certificate of probable cause on November 2, 2011.
On
March 18, 2011, after defendant entered his no contest plea to count 1, the
prosecutor voir dired defendant regarding his plea. During the voir dire, the prosecutor asked
defendant, “Have you discussed the elements of the crime and the defenses with
your attorney?†Defendant responded,
“Yeah.†The prosecutor asked, “Are you
satisfied with her advice?†Defendant
responded, “Yes.†The prosecutor asked,
“Do you stipulate, [counsel], there’s a factual basis for [the] plea as the
People do?†Defendant’s counsel
responded, “Yes, I do stipulate.†The
prosecutor asked, “And do you also waive your preliminary examination . . .
?†Defendant responded, “Yes.†The prosecutor waived a preliminary
examination as well, and both parties waived a probation report.
At
the end of the voir dire, the court stated that it found “responses to the voir
dire to the District Attorney had been intelligently given and to the extent
that there were stipulated rights they were also knowingly [and] intelligently
entered into by the defendant.â€
On
appeal, defendant contends that the conviction must be reversed and the matter
remanded to allow the trial court to make a proper inquiry into the factual
basis for the plea. He argues that a
bare stipulation by the parties that there is a factual basis for a plea is
insufficient to satisfy the requirements of Penal Code section 1192.5
and People v. Holmes (2004) 32
Cal.4th 432, and, because a preliminary examination and a probation report were
both waived, there is nothing in the record to support a factual basis in this
case.
The
People contend that the plea was proper.
“Where the parties stipulate to a fact at trial, the fact finder must
regard that fact as proved.†“Where, as
here, the record shows the defendant discussed the charge and possible defenses
with counsel and was satisfied with her advice, then stipulated there was a
factual basis for the plea, the stipulation at the very least is a waiver of a
reference to a particular document in the record, and satisfies section
1192.5.â€
“In
order to appeal after a conviction by plea of guilty or nolo contendre, a
defendant must obtain a certificate of probable cause from the trial
court. (§ 1237.5.) ‘Issues cognizable on an appeal following a
guilty plea are limited to issues based on “reasonable constitutional,
jurisdictional, or other grounds going to the legality of the proceedingsâ€
resulting in the plea. (§ 1237.5;
[citation].) The issuance of a
certificate of probable cause pursuant to section 1237.5 does not operate to
expand the grounds upon which an appeal may be taken as that section relates
only to the “procedure in perfecting an appeal from a judgment based on a plea
of guilty.†[Citations.]’ [Citation.]â€
(People v. Voit (2011) 200
Cal.App.4th 1353, 1364 (Voit).)
“In
order to ensure that the entry of a plea is voluntary, California requires an
inquiry by the trial court in some cases.
‘When taking a conditional plea of guilty or nolo contendre (hereafter
no contest) 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[,
fn. omitted.) ‘While there is no
federal constitutional requirement for this factual basis inquiry, the
statutory mandate of section 1192.5 helps ensure that the “constitutional
standards of voluntariness and intelligence are met.†[Citation.]’
[Citation.] The inquiry also
protects against an innocent person entering a guilty plea and creates a record
against possible appellate or collateral attack. [Citation.]â€
(Voit, supra, 200 Cal.App.4th at p. 1365.)
“ ‘[A] trial court possesses wide
discretion in determining whether a sufficient factual basis exists for a
guilty plea. The trial court’s
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.’ ([People v.] Holmes,
p. 443.)†(People v. Marlin (2004) 124 Cal.App.4th 559, 572 (
“We
do not believe that a plea of guilty or no contest forecloses a defendant from
challenging [on appeal] the procedure that resulted in the plea. A trial court’s alleged complete failure to
conduct the required [factual basis] inquiry does not concern the defendant’s
guilt or innocence or the sufficiency of the evidence of guilt.†(Voit,
supra, 200 Cal.App.4th at p. 1369,
italics omitted.) “[I]n light of the
policies served by the inquiry requirement, a failure to make
or jurisdictional requirement, is one of the “other†grounds going to the
legality of the proceedings in the trial court.’ (Marlin,
supra, 124 Cal.App.4th 559,
571.)†(Voit, supra,
required by the statute is a procedural question.†(Ibid.)
“On
the other hand, when the trial court does make an inquiry on the record as to
the factual basis for a plea, an appellate claim that the inquiry was not
‘sufficient’ or ‘adequate’ is often, as it was in Marlin, essentially a challenge not to the trial court’s process
but to its ultimate conclusion that there was a factual basis for the
plea. In such a case, the defendant’s
position is concerned with the sufficiency of the evidence of his or her
guilt. A defendant who belatedly
disputes the existence of evidence of his or her guilt is making a substantive,
not a procedural, claim.†(
A
defense counsel’s stipulation that there is a factual basis for defendant’s
plea “must be regarded as an admission by defendant [when it is] made in
defendant’s presence with defendant’s apparent assent. It is ‘settled that a party is bound by a
stipulation or admission in open court of his counsel, and, except where a
constitutional proscription is involved, he cannot mislead the court by seeming
to take a position on the issues and then disputing or repudiating the position
on appeal.’ [Citation.]†(Voit,
supra, 200 Cal.App.4th at p. 1372,
fn. 14.)
In
this case, in response to the prosecutor’s inquiry, defendant stated on the
record in open court that he had reviewed the charges against him and his
possible defenses with his counsel, and that he was satisfied with his
counsel’s advice. His counsel and the
prosecutor then stipulated that there was a factual basis for defendant’s no
contest plea. The court found that
defendant’s answers to the prosecutor’s inquiry and the stipulations were
knowingly and intelligently entered into.
On this record, defense counsel’s stipulation that there was a factual
basis for the plea “must be regarded as an admission by defendant [as it was]
made in [open court in] defendant’s presence with defendant’s apparent
assent.†(Voit, supra, 200
Cal.App.4th at p. 1372, fn. 14.)
Therefore, defendant’s contention that the factual basis inquiry was not
sufficient is “essentially a challenge not to the trial court’s process but to
its ultimate conclusion that there was a factual basis for the plea.†(Voit,
supra, at p. 1370.) However, the trial court’s acceptance of the
guilty plea after an inquiry into the factual basis for the plea can only be
reversed for an abuse of discretion. (
Given defendant’s and the prosecutor’s stipulation to a factual basis,
we see no reason to reverse the judgment and remand the matter to allow another
inquiry into the factual basis for defendant’s plea.
The court ordered defendant to pay a $50 criminal lab analysis fee,
plus penalty assessments, and a $150 drug program fee, plus penalty
assessments, as a condition of his probation.
The amended order of probation filed August 18, 2011, states that the
penalty assessments for the $50 criminal lab analysis fee are $150, and the
penalty assessments for the $150 drug program fee are $450. In his opening brief on appeal, defendant
contends that the order of probation does not, but should, include the correct
amount of the penalty assessments as well as a breakdown of the statutory basis
for the penalty assessments. In his
reply brief, defendant acknowledges that the probation order does include the
correct amount of the penalty assessments but continues to contend that the
order should also include a “specific breakdown†of the statutory basis for
each of the ordered penalty assessments.
Defendant requests that this court remand the matter to the trial court
so that the order of probation can be amended to include “a detailed breakdown of the
statutory bases for the assessments.â€
The
People contend that, because the “penalty assessments are correctly identified
statute by statute in the chart in [defendant’s] [o]pening [b]rief,†and the
total amount of the penalty assessments included in the order of probation is
correct, no remand is warranted.
We
acknowledge that, in order to facilitate review of the penalty assessments
imposed in a case, as well as to assist in collection efforts, it is important
for the trial court to recite the statutory bases for all penalty assessments
imposed. (See People v. Taylor (2004) 118 Cal.App.4th 454, 456-460;
1192, 1200.) However, in this era of
budget cuts and limited judicial resources, given that defendant’s counsel has
correctly identified the “specific breakdown†of the statutory bases for the
penalty assessments and has agreed that the amounts included in the order of
probation are correct, we see no reason to remand the matter to the trial court
for an amendment to the order of probation.
The
judgment (order of probation) is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING
P.J.
__________________________
GROVER, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code unless
otherwise specified.
Monterey County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
