Opinion
F075656
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. JACOB WILLIAM BROWN, Defendant and Appellant.
Laurie Wilmore, under appointment by the Court of Appeal, for Plaintiff and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CM0418)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Laurie Wilmore, under appointment by the Court of Appeal, for Plaintiff and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Smith, J. and Meehan, J.
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Appellant Jacob William Brown pled no contest to possession of a slungshot (Pen. Code, § 22210; count 1) and admitted a prior prison term enhancement (§ 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)). On appeal, Brown contends: (1) the court erred in finding a factual basis for his plea; and (2) the "slungshot statute" is vague as applied to him. We affirm.
All statutory references are to the Penal Code.
FACTS
The record does not contain an extensive recitation of the facts, which are omitted because, as noted below, Brown waived a preliminary hearing and the court granted Brown's request for immediate sentencing, which resulted in a probation report not being prepared in this matter.
On March 3, 2017, Brown was arrested while in possession of bolt cutters, two cell phones and a sock that contained 10 rocks.
On March 6, 2017, the Kings County District Attorney filed a complaint charging Brown with resisting arrest (§ 148; count 2), in addition to the possession of a slungshot offense and the other allegations Brown admitted.
On March 15, 2017, the parties appeared in court for a pretrial hearing before the preliminary hearing that was scheduled for the following day. During a discussion regarding a potential plea bargain, in reference to his possession of the sock, Brown stated,
"I don't need a weapon. People like me. I didn't intend on hurting anybody with any kind of slung shot. I didn't know that was a crime or I wouldn't have had that in my pocket. I purposefully didn't have a pocketknife or anything. I was out there—when I didn't have nothing to do in the community I was picking up trash. I'm a good guy. I look crazy, but I've really changed and I really beg the Court and the [district attorney] please—please give me an opportunity to get my life together."
Afterwards, Brown entered his plea as noted above in exchange for the dismissal of count 2 and a stipulated prison term of 44 months. During the change of plea proceedings, the court advised Brown of his constitutional rights, obtained waivers of those rights from him, and explained the consequences of his plea. In response to inquiries by the court, Brown stated that he had a chance to speak with his attorney about the facts of his case, the charges against him, and any defenses he might have. He also stated that he did not need more time to discuss anything with his attorney, that he understood everything the court had gone over, and that he did not have any questions for the court. In response to the court's inquiries, defense counsel stated that he joined in Brown's waiver of his rights and consented to Brown entering a plea. After the court accepted Brown's plea, he stated: "I can't believe I can go to prison for that."
Prior to obtaining a factual basis for Brown's plea, the court marked two photographs as exhibits. Exhibit 1 showed a bolt cutter, two cellphones and a sock containing rocks on the hood of a car. Exhibit 2 showed the sock and the 10 rocks it contained on a flat, metallic surface. After Brown acknowledged that on March 3, 2017, he possessed the sock containing the rocks shown in the photographs, the court found a factual basis for Brown's plea and that Brown knowingly and intelligently waived his rights, and freely and voluntarily entered his plea.
Brown then waived his time for sentencing and the court sentenced him to the stipulated prison term of 44 months, a doubled mitigated term of 32 months on his possession of a slungshot conviction and a one-year prior prison term enhancement. Following some discussion, during which the court explained that Brown would have to serve 80 percent of his prison term, the court asked him whether that changed his mind about entering a plea. Brown replied that it did not. On May 17, 2017, the court signed an order granting Brown a certificate of probable cause and the order and Brown's appeal were filed on that date.
DISCUSSION
The Factual Basis of Brown's Plea
Brown contends the court's inquiry into the factual basis of his plea was inadequate because his admission that he possessed the sock containing rocks established only his possession of these items but not that the sock and rocks were per se a slungshot or that he "intended to use otherwise benign objects as a weapon." Brown further contends that when a defendant protests his innocence, as he did here, the court must take special care in determining whether there is a factual basis for the defendant's plea and that the court did not do that here. Thus, according to Brown, he did not enter his admission knowingly and the court's acceptance of the plea violated his constitutional right to due process.
Respondent contends that because Brown is challenging the sufficiency of the evidence, his plea is not cognizable on appeal and that, in any event, the court's finding of a factual basis for Brown's plea was adequate.
Brown's Contention Is Cognizable
Section 1237.5 provides:
"No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:
"(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.
"(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
On May 17, 2017, the court signed an order granting Brown a certificate of probable cause and the order and Brown's appeal were filed on that date.
"Under section 1237.5, a defendant may appeal from a conviction on a plea of guilty or no contest only on grounds going to the legality of the proceedings; such a plea precludes appellate consideration of issues related to guilt or innocence, including the sufficiency of the evidence to support the conviction." (People v. Palmer (2013) 58 Cal.4th 110, 114.) "The purpose of the factual basis requirement is to help ensure that the constitutional standards of voluntariness and intelligence are met." (Id. at p. 118.)
Brown's challenge to the court's finding of a factual basis for his plea is cognizable on appeal to the extent it goes to the legality of the proceedings. Thus, his contention that the court erred in obtaining a factual basis resulted in him not entering his plea knowingly is cognizable.
The Court Did Not Err In Obtaining the Factual Basis for Brown's Plea
Section 1192.5, in pertinent part, provides that the "court shall ... 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."
"The factual basis required by section 1192.5 does not require more than establishing a prima facie factual basis for the charges. [Citation.] It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime [citation], nor does the trial court have to be convinced of defendant's guilt. ([Citation]; In re Alvernaz (1992) 2 Cal.4th 924, 940 fn. 9 [so long as the trial court ascertains a factual basis for the plea, it may enter a plea of guilty or no contest despite the defendant's claim of innocence.].) The colloquy that took place in People v. Ivester (1991) 235 Cal.App.3d 328, 338-339 [Ivester], which the court upheld as a sufficient factual basis for the plea, is illustrative of this point. The trial judge engaged the defendant and his codefendant wife in a factual inquiry, beginning with, 'what did you do that makes you think you are guilty of these offenses?' (Id. at p. 338.) While defendant Ivester's responses to the factual inquiry left some ambiguity as to the mental state for the charged offense, Ivester's statement that ' "I had a methamphetamine lab going in the residence" ' was held a sufficient factual basis under section 1192.5 for the plea. (Ivester, at p. 338.)" (People v. Holmes (2004) 32 Cal.4th 432, 441-442 (Holmes).)
"[Further] ... 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. [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." (Holmes, supra, 32 Cal. 4th at p. 443.)
Section 22210 provides:
"[A]ny person ... who ... possesses any leaded cane, or any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot, is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170."
California law defines a slungshot as " 'a small mass of metal or stone fixed on a flexible handle, strap or the like, used as a weapon.' " (People v. Fannin (2001) 91 Cal.App.4th 1399, 1401-1402 (Fannin).) In Fannin, the appellate court considered whether a bicycle lock on a chain was a "slungshot" within the scope of section 12020, subdivision (a), the predecessor statute to section 22210. The court recognized that a bicycle lock and chain were not a weapon in themselves, but could be "an instrument with ordinary innocent uses...." (Fannin, at p. 1404.) As a result, Fannin held that the "Intent to use a weapon is not an element of the crime of weapon possession. 'Proof of possession alone is sufficient.' [Citation.] However, if the object is not a weapon per se, but an instrument with ordinary uses, the prosecution must prove that the object was possessed as a weapon. The only way to meet that burden is by evidence 'indicat[ing] that the possessor would use the object for a dangerous, not harmless, purpose.' " (Fannin, at p. 1404, italics omitted.)
The object at issue here is a sock that contained several rocks. Individually, these items had ordinary uses. However, the combination of the rocks in the sock is akin to a slungshot because when the top of the sock is grasped, the rocks are "fixed" at the other end of the sock by gravity, particularly if the sock is swung around. Further, the length of the sock between the top that is grasped and the end of the sock where the rocks would be located, acts as a flexible handle or strap. Thus, the trial court could reasonably find that by carrying the rocks inside the sock, the sock and rocks were a weapon per se of the kind commonly known as a slungshot. Further, since Brown possessed a weapon per se that did not have any ordinary innocent uses, his state of mind was not an element of the charge to which he pled. Thus, in establishing the factual basis of the plea, there was no reason for the court to inquire whether Brown intended to use this weapon for a dangerous purpose.
In any event, as noted above, in Ivester, supra, 235 Cal.App. 3d at p. 338, a defendant's statement that he had a methamphetamine lab "going" in his residence was sufficient to establish a factual basis for the defendant's plea even though it left some ambiguity as to the mental state for the charged crime. Brown admitted he possessed the makeshift slungshot. Under Holmes, this was sufficient to establish a factual basis for Brown's plea to possession of a slungshot notwithstanding that there remained some ambiguity as to his mental state.
Moreover, in People v. Palmer, supra, 58 Cal.4th 110, the court found that a sufficient factual basis was established by defense counsel's stipulation that there was a factual basis for the charge and the defendant's statements that he had discussed the elements and defenses to the charge and was satisfied with counsel's advice. (Id. at p. 119.) Here, although counsel did not stipulate to a factual basis, Brown admitted he possessed the makeshift slungshot. Further, during the change of plea proceedings, Brown acknowledged that he discussed with defense counsel the facts of his case, the charges against him, and any defenses he had. Brown did not state that he discussed the elements of the charge. However, the Palmer court did not state that the defendant's discussion of the elements of the offense with his defense counsel was an essential factor in its conclusion. In any event, the trial court could reasonably infer that defense counsel discussed the elements of the charges with Brown from Brown's acknowledgment that they discussed the facts of the case, the charges, and any defenses Brown might have to them. Thus, we conclude that the court did not abuse its discretion when it found there was a factual basis for Brown's plea.
However, even if the court erred in finding a factual basis for Brown's plea, the error was harmless. In People v. Watts (1977) 67 Cal.App.3d 173, 178, the court noted that one of the main purposes for requirement of obtaining a factual basis for a defendant's plea is "to protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged. [Citation.] Inquiry into the factual basis for the plea ensures that the defendant actually committed a crime at least as serious as the one to which he is willing to plead." (Ibid.) The court could reasonably conclude from Brown's acknowledgement that he discussed the facts, charges, and defenses with defense counsel and was satisfied with his services that Brown committed an offense at least as serious as the one to which he pled. This is particularly true here because, even after the court clarified that he would have to serve 80 percent of his prison term and asked him if that changed his mind about entering a plea, Brown said that it did not.
Further, "[a] finding of error ... will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea." (Holmes, supra, 32 Cal.4th at p. 443.) Although Brown protested that he did not intend to hurt anyone with his makeshift slungshot, in the trial court he did not assert a legitimate reason for possessing it, and there does not appear to be any legitimate reason for him to have done so. Thus, since the record supports a factual basis for Brown's plea, alternatively we conclude that if error occurred, it was harmless.
Brown cites his statement that he did not intend to hurt anyone with "any kind of slungshot" and his statement that he did not "believe [he] could go to prison for that" to contend that he consistently asserted that he did not possess the makeshift slungshot as a weapon. Even if Brown did not intend to hurt anyone, he nevertheless would have violated section 22210 even if he intended to use the sock only in self-defense. (Fannin, supra, 91 Cal.App.4th at p. 1405 [possession of slungshot violated statute prohibiting possession of such a weapon even though juvenile intend to only use weapon for defense].) Further, Brown's second statement indicates only that he did not believe his offense warranted a prison commitment and does not amount to an assertion that he did not intend to use the makeshift slungshot as a weapon. Thus, the record does not support Brown's contention that he consistently asserted that he did not possess a weapon.
In his appeal, Brown referred to the slungshot as a "satchel of stones [he] was collecting[.]" However, this statement is dubious because he did not make this claim in the trial court, there does not appear to be anything extraordinary about the rocks that might entice anyone to collect them, and there was no apparent reason why he could not carry them in the pocket in which he carried the sock, instead of inside the sock.
The Court's Acceptance of Brown's Plea Did Not Violate His Constitutional Right to Due Process
Brown contends that because his statement that he did not know he was doing anything wrong was an assertion of innocence, a factual basis for the plea was required by the federal Constitution. Additionally, he contends that he had a constitutionally protected liberty interest in having the trial court follow California law and, therefore, the trial court's arbitrary failure to find a factual basis for his plea denied him his federal constitutional right to due process.
This contention is moot in light of our conclusion above that the court did not err in obtaining a factual basis for Brown's plea. Nevertheless, we note that Brown does not cite any authority that supports his assertion that a factual basis is required when a defendant who pleads guilty also professes his innocence. Further, even if the court erred because its inquiry into the factual basis for Brown's plea was deficient, Brown does not cite, nor does the record contain, any evidence that supports his claim that the court acted arbitrarily in doing so. Thus, there is no merit to Brown's contention that the court violated his federal right to due process when it accepted his plea.
Brown Forfeited His Claim That Section 22210 Is Unconstitutionally Vague as Applied to Him
"The definition of 'slungshot' ... is sufficiently specific to pass constitutional muster." (Fannin, supra, 91 Cal.App.4th at p. 1402.) Brown contends section 22210 is unconstitutionally vague as applied to him because he did not have any notice that the rocks in his sock would constitute a per se "slungshot." He further contends that if this court considers the issue forfeited by his failure to raise it below, we should nevertheless exercise our discretion to reach this issue because it presents an important constitutional question. (Ibid.) We disagree.
" ' "No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ' " (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. omitted.) "[However,] appellate courts have discretion to address constitutional issues raised on appeal [citation], particularly where the issue presented is 'a pure question of law' turning on undisputed facts [citation] or when ' "important issues of public policy are at issue .... " ' " (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323.)
"An as applied challenge [to the constitutional validity of a statute] may seek ... relief from a specific application of a facially valid statute ... to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute ... has been applied.... It contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute ... has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right. [Citations.] When a criminal defendant claims that a facially valid statute ... has been applied in a constitutionally impermissible manner to the defendant, the court evaluates the propriety of the application on a case-by-case basis to determine whether to relieve the defendant of the sanction." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)
A determination of whether section 22210 is unconstitutionally vague as applied to Brown would involve the resolution of disputed facts. Therefore, since Brown did not raise this issue in the trial court, he forfeited it. Further, we decline to exercise our discretion to consider this issue because: (1) the record is devoid of facts surrounding Brown's possession of the makeshift slungshot; and (2) since an as-applied challenge considers the facts and circumstances applicable to an individual party only, "the issues raised by its constitutional challenge are limited and do not raise broader public policy questions." (Santillan v. Roman Catholic Bishop of Fresno (2008) 163 Cal.App.4th 4, 12, fn. 10.)
DISPOSITION
Brown's application to expand appellate counsel's appointment to include the preparation and filing of a petition for writ of habeas corpus, which was filed in this matter on September 14, 2017, is denied. --------