Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS061897A
ELIA, J.In this appeal, defendant Jason Berring seeks review of an order denying his motion to withdraw his no-contest plea to false imprisonment, misdemeanor battery, and misdemeanor brandishing a firearm. Defendant contends that the order constituted error because his plea was not voluntary or based on adequate information. We find no abuse of discretion in the court's denial of the motion because there was no prejudicial error in the acceptance of defendant's negotiated plea. We will therefore affirm the judgment.
Background
On August 11, 2006, defendant was accused by information of making a criminal threat with the personal use of a firearm (Pen. Code, §§ 422, 12022.5, subd. (a)), dissuading a witness by force or threat (Pen. Code, § 135.1, subd. (c)(1)), false imprisonment by means of violence (Pen. Code, § 236), damaging a telephone line (Pen. Code, § 591), and battery on a former cohabitant or person with whom he had a previous dating relationship (Pen. Code, § 243, subd. (e)). A sixth count was added thereafter, charging defendant with exhibiting a firearm (Pen. Code, § 417). The charges arose from a prolonged confrontation with Joy Suber, with whom he had two children and who had ended their personal relationship six months earlier.
All further unspecified statutory references are to the Penal Code.
On January 29, 2007, the day trial was to begin, defendant signed a waiver of trial rights in anticipation of a negotiated plea. He then pleaded no contest to the false imprisonment, battery, and brandishing charges (counts three, five, and six, respectively). The understanding, as recited by the court, was that defendant would receive felony probation for the false imprisonment, "which means up to one year in the county jail," and that after one year he could seek reduction of that conviction to a misdemeanor.
The trial court asked defendant whether he understood each of the trial rights he was giving up by his plea, whether he understood the possible penalties he could receive, and whether he was satisfied that there was a sufficient factual basis for his plea. Defendant answered in the affirmative to each of those questions, and he answered "No, sir" when the court asked if he had any questions. Defendant also stated that he understood that he would be prohibited from possessing a weapon for 10 years, and that he would be required to undergo 52 weeks of domestic violence counseling. Again he had no questions. The court accepted the plea.
In April 2007, represented by new counsel, defendant moved to set aside his plea on the grounds that (1) the trial court had failed to obtain an adequate factual basis for his plea; (2) he had not pleaded separately to each count as required by Penal Code sections 1018, 1017, and 988; (3) he had not been adequately advised of the consequences of his plea; and (4) his previous retained attorney "may not" have prepared adequately for trial. Subsequently defendant added that the bailiff had improperly urged him to accept a plea bargain, the court had extracted a plea from an "obviously emotionally overwrought defendant" based on a legal conclusion rather than a proper factual acknowledgement, the court had failed to advise him of a minimum 90-day jail term for the brandishing, and he had received inadequate representation from the prior attorney.
A different judge heard the motion to withdraw the plea. Acknowledging that defendant "apparently" had been emotional at the plea hearing, the court observed that many defendants are unhappy with the situation they face when a plea bargain emerges "at the last minute" on the day of trial. The court noted that defendant was a sergeant with the Soledad Police Department, and it stated that "this is a veteran police officer. If he doesn't understand what he's doing when he enters a plea of guilty [sic] in a criminal case, then no defendant does." Accordingly, the court denied defendant's motion to withdraw his plea. The court did not directly address the complaint regarding the three-month jail sentence. Upon entry of judgment, defendant appealed and obtained a certificate of probable cause.
Discussion
As defendant is aware, the denial of a motion to withdraw a guilty or no-contest plea rests in the sound discretion of the trial court and may not be overturned on appeal unless the defendant shows a clear abuse of that discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Defendant also recognizes that it was his burden in superior court to show "good cause" to withdraw his plea—that is, "mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment." (§ 1018; People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) "Other factors overcoming defendant's free judgment include inadvertence, fraud or duress." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Good cause must be shown by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.)
In his motion defendant argued, among other things, that the trial court had failed to advise him adequately of the direct consequences of his plea. He specifically focused on the three-month jail term for count six, the minimum sentence prescribed for violations of section 417, subdivision (a)(2), the brandishing charge. Defendant argued that no one had explained to him that a plea to such a violation requires a minimum three-month jail sentence, except in "unusual cases where the interests of justice would best be served" by probation without a jail term. On appeal, he renews that contention. The People respond that defendant has "no cause to complain" of the 90-day sentence because he agreed that he could receive up to one year in jail.
A trial court must advise a defendant of the direct consequences of a plea of guilty or no contest to a felony or misdemeanor before it accepts the plea. (In re Moser (1993) 6 Cal.4th 342, 352; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) Failure to give a necessary advisement is a ground for withdrawal of the plea if the defendant establishes that he was prejudiced by the misadvisement—that is, he would not have entered the challenged plea had the trial court given a proper advisement. (In re Moser, supra, 6 Cal.4th at p. 352.) Direct legal consequences include ineligibility for probation (People v. Caban (1983) 148 Cal.App.3d 706, 711), mandatory parole consequences (In re Moser, supra, 6 Cal.4th at p. 352), and a mandatory minimum sentence. (Cf. People v. Dakin (1988) 200 Cal.App.3d 1026, 1033-1034 [failure to advise of mandatory one-year jail term before slow plea].)
In this case, the probation officer appeared to assume that the violation of section 417 carried a mandatory minimum 90-day jail sentence. She quoted subdivision (a)(2)(A), which pertains to brandishing offenses occurring in a public place. Likewise, in opposing defendant's motion to withdraw, the prosecutor argued that "the 90[-]day minimum amount of jail time . . . is a mandated minimum penalty and not a subject of negotiation by statute according to Penal Code Section 417(a)(2)(A)." Defendant did not urge imposition of a fine instead of a jail term; instead, he invoked section 1203.095, subdivision (b), to urge the court to bypass the three-month term. The prosecutor argued that defendant's assumption that the minimum was negotiable under section 1203.095, subdivision (b), indicated a lack of prejudice.
The prosecutor and probation officer's recommendations were based on an inaccurate premise, as violations of section 417, subdivision (a)(2)(A), do not carry a mandatory minimum term; the provision states that the court has the option of imposing three months or a fine up to $1,000, or both. Subdivision (a)(2)(B), however, does mandate three months in jail. It is this provision to which defendant shifts his focus on appeal, while continuing to cite section 1203.095, subdivision (b).
It is not clear from the record whether the court believed it was accepting a plea to subdivision (a)(2)(A) or subdivision (a)(2)(B) of section 417. Neither the plea agreement nor the parties' statements at the plea hearing indicate which provision applied on the facts presented. It is apparent, however, that the Legislature intended section 1203.095 to apply to convictions under either subdivision of section 417; the statute introduces the mandatory jail provision with "Except as provided in subdivision (b) but notwithstanding any other provision of law . . . ." (§ 1203.095, subd. (a).) On the other hand, as defendant pointed out to the trial court, the court may decline to impose the three-month sentence "in unusual cases where the interests of justice would best be served by granting probation or suspending the imposition or execution of sentence . . . with conditions other than those set forth in subdivision (a) . . . ." (§ 1203.095, subd. (b).) Thus, if section 1203.095, subdivision (b), applies, the three-month jail term is presumptive.
It is unclear how this restriction operates when a sentencing judge has elected to impose a fine instead of a jail term. It is equally unclear whether resort to subdivision (b) of section 1203.095 is permissible for convictions of section 417, subdivision (a)(2)(B), which imposes an unconditional mandatory minimum jail term of at least three months.
Whether the three-month term for the misdemeanor in count six is considered mandatory or only presumptive, it does not appear to have been the subject of plea negotiations at any point before defendant's change of plea. At the hearing the court explained that the "[p]ossible penalty for the matters as a felony" was up to three years in prison, plus at least three years on parole. The court noted, however, that the agreement was for defendant to receive "felony probation" on the false imprisonment charge, with the possibility of up to one year in the county jail as a condition of probation. After a year, the court said, it might reduce that felony to a misdemeanor (and defendant could even try to obtain a dismissal) if there were no "problems . . . during the course of probation."
The record thus indicates that all participants at the hearing anticipated probation as a consequence of defendant's plea. No one at the hearing mentioned the punishment for the brandishing charge on the record. According to defendant's declaration, he did not know about the penalty for the section 417 violation until his interview with the probation officer, who reported that defendant was "momentarily speechless" and "extremely concerned" at hearing this news.
On appeal, the parties debate the effect of the court's failure to advise defendant of the three-month jail term. Defendant argues that it was mandatory absent unusual circumstances, while the People focus on the fact that the court "could have imposed a lesser term." Assuming that such an option was available to the court at sentencing (i.e., section 1203.095 did not apply), we must nevertheless recognize that section 417 creates at least a presumption that the defendant will be sentenced to a minimum term of three months in jail. If a presumptive term suffices as a direct consequence for which advisement is required, then a defendant who is not informed of such a probable sentence, and who is led to believe that probation without incarceration is likely, could be allowed to withdraw his plea if he later learns that he must serve time in jail.
Two cases from the Fifth District are helpful. In People v. Spears (1984) 153 Cal.App.3d 79, 84, the defendants, the parties' counsel, and the court discussed the prospective plea in a climate "of real anticipation . . . that probation was likely." In fact, however, probation was "statutorily disfavored and therefore less than probable." (Id. at p. 87.) In explaining the "range" of the possible punishment, "references were made to probation without the slightest hint that there were statutory hurdles not faced by the other defendants, or to criminal defendants in general. Thus, because probation was statutorily disfavored, the advice was misleading to the extent that the defendants had been permitted by the court to believe that probation was likely." (Ibid.) It was not sufficient that the court advised a defendant of the possible maximum term. (Ibid.)
People v. Vento (1989) 208 Cal.App.3d 876 presented circumstances distinguishable from those of Spears. In Vento the trial court indicated that it "would not rule out the possibility" of probation and local sentencing; but it also was unwilling to "rule out the possibility of a state prison commitment." (Id. at p. 878.) The defendant stated that he understood, but he later appealed, contending that the trial court's expression of willingness to consider probation was misleading, "since in fact probation could only be granted in an unusual case where the interests of justice would best be served . . . ." (Ibid.) The defendant argued that he was entitled to a reversal of the judgment and an opportunity to withdraw his plea. (Ibid.) The appellate court was unconvinced. Although Vento had not been informed at the time he entered his plea that probation was statutorily disfavored, "the record does not show a climate of 'real anticipation' that probation was likely. Instead, the trial court simply indicated that it was ruling out none of its sentencing options. Moreover, unlike the defendants in Spears, at no time did Vento move to withdraw his plea." (Id. at p. 879.) Because "There [was] no indication at the time of sentencing that Vento was surprised by the statutory limitation on probation or that he felt the plea bargain was being breached either in letter or in spirit," the reviewing court rejected his argument that his plea was improperly induced and affirmed the judgment. (Id. at pp. 879-880.)
The case before us is more comparable to Spears. As we have noted, defendant was given the impression that he would receive probation for the felony count. The three-month punishment for brandishing, whether mandated or presumptive, was in actuality a likely consequence of which defendant was not informed at all before he entered his no contest plea. It is true that defendant was aware that the court could impose up to one year in jail under the plea agreement as a condition of that probation; he acknowledged that possibility both in the written waiver of rights and orally at the hearing. However, he apparently anticipated no time in confinement, and he was not informed that the sentencing judge's discretion to grant probation without jail time would be restricted by statute. The duty to advise a defendant of the penal consequences of a guilty or no-contest plea encompasses any mandatory minimum term of incarceration. (People v. Dakin, supra, 200 Cal.App.3d at p. 1033.)
Thus, on these specific facts, it appears that defendant was inadequately advised of the direct penal consequences of pleading no contest. The People's assertion that the error was harmless because he "would not have received a more favorable result" is misplaced, as this is not the test of prejudice. Defendant must show that but for the misadvisement, he would not have agreed to plead no contest. (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210.) This is "a factual question, appropriate for decision by the trial court in the first instance. [Citations.]" (People v. Superior Court (Zamudio), supra, 23 Cal.4th at p. 210.)
On the record before us we cannot determine whether the court addressed the specific issue of prejudice because it did not expressly decide that a misadvisement had occurred, nor did it explicitly state that it disbelieved defendant's assertion that he would not have pleaded no contest in the absence of the misadvisement. However, on a silent record we must presume that the judge who heard the motion not only understood the previous judge's legal error in advising defendant but also rejected the asserted facts on which defendant claimed prejudice. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 [on silent record, court presumed to have understood and followed law regarding drug program fee]; cf. People v. Davis (1996) 50 Cal.App.4th 168, 172-173 [burden to show court misunderstood sentencing discretion not shown on silent record].) Accordingly, we presume that the court did not believe defendant would have chosen to proceed to trial had he been properly advised. The record supports that inference. Defendant was facing multiple felony charges which would have subjected him to prison had he been convicted, and the court did not believe that defendant's emotional state overcame his ability to understand the charges and the meaning of the negotiated disposition. In light of the standard by which we review the order denying defendant's motion, we cannot find a basis for reversal on this ground.
Defendant next contends that a "coercive element" was added to his plea when the bailiff advised him to accept the plea disposition the prosecutor was offering. According to defendant's declaration, the comment occurred during the noon recess while defendant was waiting for jury trial to begin. After his attorney emerged from a meeting with the judge and the prosecutor, she advised him to accept a plea bargain. When defendant protested that he was innocent, a bailiff who was sitting nearby said, "If you want my opinion, I would take the offer."
In his supplemental points and authorities, defendant argued that his plea was not entered freely and voluntarily because he was already in a highly emotional state when the bailiff, a ministerial officer, gave him this "unsolicited advice," which had a "great impact" on him. On appeal, defendant adds that he had had limited time to discuss the offer with his attorney when the bailiff injected his comment. We note, however, that defendant's declaration did not include any statement regarding the "impact" of the bailiff's suggestion on his consideration of the plea offer. The trial court considered this ground and noted that it "can't really gauge" the degree to which the bailiff influenced defendant; it nonetheless discounted the impact of the statement, instead regarding any influence as a product of "the fraternity of police officers" rather than an impression that the bailiff represented the view of the court. The court thus did not believe that the bailiff's comment would have carried sufficient weight to have amounted to improper influence. We cannot ignore the court's factual findings, as they served as the foundation of its rejection of defendant's claim of impropriety. As for the claim on appeal that defendant had had limited time to consider the plea offer when the bailiff voiced his opinion, we note that the judge thereafter gave defendant additional time to discuss the offer with counsel.
Defendant further argues that the court failed to ensure an adequate factual basis for the plea. At the plea hearing the court asked defendant whether he indeed wanted to plead no contest to the three charges proposed in the plea agreement. Defendant answered in the affirmative. The court elicited defendant's waiver of his trial rights and explained the penal consequences contemplated by the bargain. The court then asked, "With those rights in mind, those possible penalties, do you still wish to plead no contest?" Defendant answered, "Yes, sir." The court continued, "And you're satisfied after discussing this with your attorney that there is sufficient factual basis for you to plead no contest, correct?" Defendant answered that he did, and when asked if he had any questions for the judge, he replied that he did not.
Defendant contends on appeal that this inquiry was insufficient, as "the court did not inquire into the facts of the case. No questions were asked of the defense attorney or the prosecutor. No reference or stipulation to a police report or any other document was made."
Defendant acknowledges that "a trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea." (People v. Holmes (2004) 32 Cal.4th 432, 443.) Furthermore, error under this standard is deemed harmless if "the contents of the record support a finding of a factual basis for the conditional plea." (Ibid.) Here the trial court's inquiry was marginal; but it exceeded the inquiry deemed insufficient in People v. Tigner (1982) 133 Cal.App.3d 430, on which defendant relies. There the trial court made no inquiry at all to assure itself that the defendant understood the charges before it concluded that a factual basis existed. Further, there were no documents before the court on which the court could have relied to find such a factual basis. In this case, even assuming error in conducting the colloquy at the hearing, we agree with the People that any error was harmless, as the information, together with the probation report, established the factual basis necessary to sustain the plea. (See People v. Holmes, supra, 32 Cal.4th at p. 444.) Moreover, on the Waiver of Rights form defendant initialed the statements indicating that (1) he had discussed the charges, the facts, the possible defenses, and the possible consequences with his attorney; and (2) he was pleading no contest "with the full understanding of all matters set forth in the Information and in this Waiver." His attorney also attested to having explained and discussed with defendant the facts and possible defenses to the charges. The trial court did not abuse its discretion by denying defendant's motion to withdraw the plea on this ground.
Finally, defendant argues that under the totality of the circumstances his plea was not voluntary and intelligent. He compares his situation to that of People v. Zaidi (2007) 147 Cal.App.4th 1470, where the defendant had not been informed that sex offender registration was a lifetime requirement. Zaidi is not helpful, however. In this case, although the court erred in failing to advise defendant of the three-month jail term for the brandishing count, that omission did not amount to the failure to ensure that the plea was knowing and voluntary. The court hearing the motion was not convinced that but for the error, defendant would not have accepted the negotiated plea offer. Further, while defendant's law enforcement background evidently contributed to the court's finding that defendant had known what he was doing when he changed his plea, the circumstances of the plea hearing itself afforded a sufficient factual basis for that conclusion. Defendant signed the waiver form indicating that he understood all the charges and the rights he was giving up by pleading no contest. The trial court gave defendant extra time to confer with his attorney about whether to change his plea or proceed to trial. During the ensuing hearing the court repeatedly asked defendant if he had any questions, and each time defendant said he did not. Defendant did not express any confusion about the meaning of his answers to the court's queries. And as the trial court later found, defendant's emotional state did not compromise his ability to agree to the negotiated disposition. The record thus offers sufficient facts to support the trial court's conclusion that, regardless of his profession, defendant knew what he was doing when he changed his plea. No abuse of discretion is shown on this record.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.