Opinion
A121765
2-27-2009
THE PEOPLE, Plaintiff and Respondent, v. ROBERT J. BARRON, III, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Robert Barron, III, appeals from a judgment and sentence imposed following his guilty plea to one count of grand theft from a person. He contends the court abused its discretion when it (1) denied his motion to withdraw his guilty plea; and (2) failed to establish that there was a factual basis for the plea. We find no abuse of discretion or prejudicial error.
BACKGROUND
The facts of the offense are taken from the probation report. Defendant approached two 14-year-old boys at a skateboard park and demanded that they give him 50 cents and one of the boys skateboards. Defendant yelled at the boys, said he was in a gang, and threatened to call his friends to "take care of them." He grabbed the skateboard and broke it in half by stomping on it with his foot.
When he was apprehended, defendant told police that he asked for the money and skateboard as compensation for items one of the boys stole from defendants car the previous week, and that the boy gave him the money and skateboard voluntarily.
Defendant was charged with felony second degree robbery, two counts of misdemeanor cruelty to a child, and one count of misdemeanor vandalism. In exchange for a promise of "No Initial State Prison," defendant entered a guilty plea to one count of grand theft and executed a plea waiver form. The probation report prepared after entry of defendants plea recommended three years probation with conditions that included 180 days in county jail.
Defendant moved to withdraw his plea. At the hearing on the motion, defendant testified he did not speak with his attorney, deputy public defender Alex, before he entered his plea because "actually we didnt have no time. She just wanted me to fill out a plea bargain and be done with it." Defendant testified that Alex did not go over the police report with him and that she said he would not receive jail time. He initially pleaded not guilty but eventually entered a guilty plea so he could "get out of there," because the court would not accept his not guilty plea. Defendant testified that he felt pressured by his lawyer to plead guilty, that he did not want to plead guilty, and that he did not understand what was going on in court.
When he was cross-examined, defendant acknowledged he was in court on several occasions before the plea hearing, but he claimed that none of the public defenders who represented him would talk to him about his case and that they refused to see him when he went to their office. He also testified that between the arraignment and the plea hearing his lawyers explained to him that robbery is a felony and discussed the facts of the case with him. He said he was told that robbery is a strike offense, that the offer was felony grand theft from the person, and that he would get probation with no jail time if he took the plea bargain. Defendant also understood that if he took the plea he would not go to prison. He "didnt want to go to prison at all," and did not feel he did anything wrong.
Defendant identified his initials and signature on the plea form. Although he graduated from high school and took welding in junior college, he said he was illiterate. He testified that attorney Alex just handed him the waiver form and told him to sign it without explaining it. He did not tell her he was illiterate because "I didnt have to disclose that information to her." According to defendant, at the plea hearing he said "not guilty" twice, did not confer with Alex, and "couldnt even talk to her." He said that the judge did not ask him if he understood the rights on the plea form, and that he would have answered "no" had he been asked.
The prosecutor called deputy public defender Alex to testify. She testified that she has been an attorney since 1982 and a criminal defense lawyer since 1989. She met with defendant about his case several times, both in court and at her office. They went over the police reports together and she explained the difference between robbery and grand theft from a person.
According to Alex, defendant felt he had done nothing wrong because he believed the victim had stolen from him. She had difficulty getting defendant to understand that self-help restitution was not acceptable. She told defendant she was concerned he might be convicted of a strike unless he took a plea, that he could get probation with up to one year in jail and no initial state prison if he entered a guilty plea, and that she would fight to get him only a misdemeanor conviction so that he could go into the military as he intended. She felt it was in defendants best interest to resolve the case and tried to convince him to take the plea to avoid ending up with a strike on his record. She never told defendant he would not have to serve jail time.
Alex testified she filled out the plea form with defendant and discussed with him all of the rights listed on the form. She did not remember whether she read him the form or he read it himself, but her usual practice is to read the form to her clients. She was never told that defendant could not read.
The waiver of rights form and transcript from the change of plea hearing were admitted into evidence. The transcript shows that defendant acknowledged his initials and signature on the plea form and answered "Yes, your Honor," when the court asked him if he understood his rights and information listed on the form. When he was asked for his plea, defendant initially replied "Not guilty," but after conferring with his attorney said "Guilty." The trial court accepted defendants plea and found it was freely and voluntarily entered with a knowing and understanding waiver of rights. Defense counsel stipulated there was a factual basis for the plea, as defendant had done in the plea form.
Defense counsel argued that defendant should be permitted to withdraw his plea because he "did not understand the consequences of his plea due to the transcript and his testimony today" and the "nebulous nature of the plea form that just says, `no initial State Prison." The court was not persuaded. It referred to attorney Alexs testimony that she explained the plea form to defendant, defendants acknowledgement at the plea hearing that he understood the plea, and his conversation with counsel before he said "guilty." The court expressed doubt that "any lawyer would tell their client theyre not going to get any jail time on that [case]" and commented that the plea form would have said "no jail time" had there been such an agreement. The court found defendants plea was knowing, intelligent and voluntary. Accordingly, it denied defendants motion to withdraw the plea.
On the date set for judgment and sentencing, new defense counsel expressed concern as to defendants competence. The court suspended the criminal proceedings and referred the matter for a competence report. (See Pen. Code, §§ 1368, 1369.) The psychologist who performed the competence assessment reported that defendant was competent, but evasive and disingenuous. The court found defendant competent and reinstated the proceedings. The court suspended imposition of sentence and placed defendant on probation with conditions that included 90 days in jail. This appeal timely followed.
All further statutory references are to the Penal Code.
DISCUSSION
I. Motion to Withdraw the Guilty Plea
Defendant asserts it was an abuse of discretion for the trial court to deny his motion to withdraw his guilty plea. We disagree.
A. Legal Principles
"A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] `Section 1018 provides that . . . "On application of the defendant at any time before judgment . . . the court may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.] [Citations.] `To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendants free judgment include inadvertence, fraud or duress. [Citations.] [Citation.] `The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty. [Citation.] [¶] `When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial courts decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.] [Citation.] `Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged. " (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.)
B. Analysis
Defendant says he did not understand the trial court proceedings, but in order for this court to accept his contention we would be required to credit defendants testimony over that of his former defense attorney. For example, defendant asserts that his attorney "stymied" him when he attempted to enter a not guilty plea; that his attorneys would not discuss the case with him or meet with him; that he was not informed he would receive jail time, and that his attorney, in fact, said he would not; that he thought the "no initial State Prison" statement in the plea form meant he would not get jail time; that he entered a not guilty plea but the court refused to take the plea, and that he did not understand he was pleading guilty rather than not guilty. But his former defense counsel testified that she met with defendant several times; that she explained his rights to him; that she never told defendant he could avoid jail time; and that she completed the plea form with defendant. The trial court disbelieved defendants testimony and credited that of his former counsel. As a reviewing court, we adopt the trial courts factual findings if they are supported by substantial evidence and we cannot substitute our own determinations of witness credibility for those of the trial court. (People v. Quesada (1991) 230 Cal.App.3d 525, 533; People v. Snow (2003) 30 Cal.4th 43, 66.) Here, substantial evidence, including the trial courts observations of defendant and assessments of witness credibility, supports the courts factual determination that defendants plea was knowing, intelligent, and voluntary.
Defendant asserts that his later referral for a section 1368 competence evaluation shows he has "continuing mental issues which strongly suggests that he did not understand the proceedings and the ramifications of his plea." But that evaluation concluded that defendant was competent to "understand the nature and purpose of the proceedings taken against him," "cooperate in a rational manner with counsel in presenting a defense," and "be able to prepare and conduct his defense in a rational manner without counsel." These conclusions undermine, rather than support, defendants assertion that he was incapable of entering a knowing and intelligent plea.
Defendants remaining points are no more persuasive. He stresses that his attorney conceded she did not do any investigation into his case, but he fails to suggest how her lack of investigation might have affected his decision to plea or the wisdom of his decision. As to his claim that he was pressured to plead guilty, "Nothing in the record indicates [defendant] was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) In sum, defendant failed to present the requisite clear and convincing evidence of good cause to withdraw his guilty plea.
In light of this conclusion we do not reach the Peoples contention that defendant waived his right of appeal when he executed the plea form.
II. Factual Basis for the Plea
Defendant next contends that the court committed prejudicial error when it relied on defense counsels stipulation that there was a factual basis for his guilty plea. He says by relying upon the stipulation, the court did not find a factual basis for the plea as required by section1192.5. If the court erred by relying on counsels stipulation, the error was not prejudicial and does not warrant reversal.
He also claims this purported error contributed to his failure to understand his plea. But the charges against defendant were set forth in the complaint and defendants statement to the probation officer shows he was fully aware of the facts on which the charges were based.
"[S]ection 1192.5 requires a trial court to garner information regarding the factual basis [for the plea] either from the defendant or defense counsel. 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, or question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. 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." (People v. Holmes (2004) 32 Cal.4th 432, 443-444.) Holmes observes that "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) [`Such a stipulation reveals no more of a factual basis supporting the plea than the plea itself.].)" (Id. at p. 441, fn. 8.) While the Supreme Court declined to decide whether such a stipulation is sufficient, it did conclude the "better approach" is for a stipulation by counsel to be accompanied by reference to a police report, probation report, preliminary hearing transcript or reference to grand jury testimony. (Ibid.; cf. People v. Willard (2007) 154 Cal.App.4th 1329, 1334-1335 [requiring reference to factual source when counsel stipulate to factual basis].)
Here, counsels stipulation to a factual basis for defendants plea was unaccompanied by any supporting documentation. Assuming for the sake of argument that it was error for the court to accept counsels conclusory stipulation, defendant cannot show resulting prejudice because his probation report establishes the requisite factual basis. (People v. Coulter (2008) 163 Cal.App.4th 1117, 1122 [courts failure to find factual basis at the initial entry of the negotiated plea harmless error where subsequent probation report supported the finding]; see People v. Holmes, supra, 32 Cal.4th at p. 443.) Defendant told the probation officer that he threatened the victim that he "could get hurt," took the victims money and grabbed his skateboard because defendant thought the victim had stolen his property two days earlier. "The underpinnings of the `factual basis aspect for a guilty plea are well known. The courts want to make sure that there is some basis, `in fact, for the guilty plea." (People v. Coulter, supra, at p. 1122.) As defendants statement to the probation officer plainly demonstrates some basis in fact for his plea, any error by the court in failing to establish it at the time of the initial entry of the plea was harmless.
DISPOSITION
The judgment is affirmed.
We concur:
McGuiness, P.J.
Jenkins, J.