Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 07-1655, 07-2133
HULL, Acting P. J.
Defendant Carlos Charles Cisneros, Jr., entered a negotiated plea of no contest to carjacking (Pen. Code, § 215, subd. (a)), burglary (id., § 459), and two counts of robbery (id., § 211), along with two firearm use enhancements (id., § 12022.53, subd. (b)) and one gang enhancement (id., § 186.22, subd. (b)(1)). (Further undesignated section references are to the Penal Code.) In exchange, the prosecution dismissed seven counts and defendant was promised a sentence of 25 years. The trial court thereafter denied defendant’s motion to withdraw his plea and sentenced him as agreed.
Defendant appeals, contending there is no factual basis for his pleas on any of the enhancements or on the burglary count. He further contends the trial court abused its discretion in denying his motion to withdraw his plea. We conclude that, although the term on one enhancement should have been stayed, defendant forfeited this claim by agreeing to a 25-year sentence. We reject defendant’s other claims of error and affirm the judgment.
Facts and Proceedings
At the change-of-plea hearing, the parties stipulated to a factual basis in the police reports of the crimes. Defendant contends those reports do not contain a factual basis for the enhancements. As discussed below, we conclude that, even if the police reports were deficient, any error in accepting defendant’s plea was harmless in light of the information contained in the probation report. Therefore, the following facts are taken from both the police reports and the probation report.
On March 2, 2007, Sarah H. was at home with her boyfriend, David D., and David’s friend, Herman Robinson. Around 1:30 p.m., while David D. and Robinson were gone running errands, Sarah opened her cash box to pay bills. She observed $1,730 in cash inside. When David D. and Robinson returned home, Sarah asked David to put the cash box away. He took it upstairs and placed it in a dresser drawer. The three spent the remainder of the afternoon running more errands. Later, while at the Department of Motor Vehicles (DMV), Robinson took a call on his cell phone from a man named Carlos and asked Carlos to pick him up. Defendant arrived and he and Robinson departed, leaving Sarah and David at the DMV office. When Sarah and David returned home, they discovered the money from their cash box was gone. Pry marks were found on a sliding glass door, and three fingerprints lifted from the door matched defendant.
On March 20, 2007, Howard R. stopped his GMC Yukon near the gas pumps at a 76 gas station and entered the station. When he returned to his car, a white Monte Carlo pulled up next to him and a man jumped out of the passenger side, pointed a gun at his face, and told him to get out of the vehicle and leave the keys inside. Howard backed away. The man got into the Yukon and drove off, following the Monte Carlo.
At approximately 1:00 a.m. on March 21, 2007, three men robbed the United Truck Stop in Dunnigan. At least two of the men were armed. They took approximately $300 from the cash register and fled in a dark-colored Yukon that had recently been stolen.
At approximately 1:30 a.m., two men entered a Circle K store in Davis and ordered a clerk to give them money from the cash register. They were both armed. The men took $7,500 in cash, lottery tickets, and cigars. They fled in a dark-colored SUV driven by a third man.
One of the men in the Circle K robbery was identified from surveillance tapes as Herman Robinson. An informant identified the other suspect who entered the Circle K as Larry Ross. Ross was later arrested and identified defendant as the driver of the SUV at the Circle K. Ross also identified Robinson and defendant as the perpetrators of the March 20 carjacking of Howard R.
In case No. 07002133, defendant was charged with burglary in connection with the March 2 incident. In case No. 07001655, defendant, Robinson and Ross were charged with carjacking of Howard R. (count 1), robbery at the Circle K store (count 5), and robbery at the United Truck Stop (count 8), with related enhancements. They were also charged with seven other offenses, including attempted murder (§ 664/187), shooting at an occupied vehicle (§ 246), and false imprisonment (§§ 636, 637, subd. (a)), stemming from other incidents that occurred on or about March 20 and March 21.
Defendant entered a negotiated plea as indicated above in exchange for dismissal of the remaining charges and a 25-year sentence. Defendant’s subsequent motion to withdraw the plea was denied, and he was sentenced in accordance with the plea agreement to an aggregate term of 25 years in state prison.
Discussion
I
Enhancement 5c
Defendant challenges his plea to the gang enhancement associated with count five (enhancement 5c). Count 5 alleged robbery at the Circle K store. Enhancement 5c alleged a violation of section 186.22, subdivision (b)(1). Defendant contends there is no factual basis to support his plea to enhancement 5c, because the evidence relied upon by the trial court failed to establish any of the requirements for a gang enhancement. We agree. However, as we shall explain, the error was harmless under the circumstances.
Before accepting a plea of guilty or no contest pursuant to a plea agreement, a trial court must make an inquiry to determine if a factual basis for the plea exists. (§ 1192.5.) “‘The purpose of the requirement 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.’ [Citation.] A defendant is not required to personally admit the truth of the factual basis of the plea, which may be established by defense counsel’s stipulation to a particular document, such as a police report or a preliminary hearing transcript. [Citation.]” (People v. French (2008) 43 Cal.4th 36, 50-51.)
“[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. [Citations.]” (People v. Holmes (2004) 32 Cal.4th 432, 443.)
Section 186.22, subdivision (b)(1), provides for enhanced punishment for a felony “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) A “criminal street gang” is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), [of section 186.22,] having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal activity.” (§ 186.22, subd. (f).) The enumerated offenses include assault with a deadly weapon (§ 186.22, subd. (e)(1)), robbery (§ 186.22, subd. (e)(2)), shooting at an inhabited dwelling or occupied motor vehicle (§ 186.22, subd. (e)(5)), and carjacking (§ 186.22, subd. (e)(21)). Within the meaning of section 186.22, “‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of” the enumerated offenses, provided “the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).)
At the change-of-plea hearing, the parties stipulated to a factual basis in the police reports. In particular, the prosecutor identified the police report for Yolo County case No. 07-772 as the factual basis for count 5. However, the People point to nothing in that report, or any of the police reports for that matter, to establish either that there was a “criminal street gang” for which the Circle K robbery was committed or that any such gang engaged in a “pattern of criminal activity.” Rather, the People cite the probation report, in which “Officer Keirith Briesnick concluded that [defendant] committed the Circle K robbery ‘for the benefit of, at the direction of, or in association with the I-80 Boyz criminal street gang,’ and ‘with the specific intent to promote, further, or assist, the I-80 Boyz criminal street gang enterprise . . . .’”
Assuming for the moment that the conclusory opinion of Officer Briesnick would be adequate to satisfy the factual basis requirement of section 1192.5, the People’s reliance on the probation report is nevertheless misplaced. As noted earlier, at the change-of-plea hearing, the parties stipulated to the police reports as the factual basis for the pleas. The probation report did not even exist at the time.
In People v. Holmes, supra, 32 Cal.4th at page 436, the California Supreme Court suggested a probation report may be used to establish the factual basis for a plea. In support of this suggestion, the court cited People v. Wilkerson (1992) 6 Cal.App.4th 1571. However, Wilkerson involved use of a police report, not a probation report. This is a significant distinction, inasmuch as police reports would normally be available to the court at the time a plea is taken, whereas a probation report prepared for the case sub judice would not typically be available until after the plea is taken.
When the Supreme Court in People v. Holmes, supra, 32 Cal.4th 432, referred to a probation report as a potential source for the factual basis, it probably did not have in mind a probation report not then in existence. On the other hand, the court may have intended to suggest the trial court may defer determination of a factual basis until after the probation report is prepared. This was what occurred in People v. Coulter (2008) 163 Cal.App.4th 1117 (Coulter). There, after accepting the defendant’s negotiated plea, the trial court said, “‘[t]he factual basis will be reserved for the time of sentencing.’” (Id. at p. 1120.) The defendant did not object. However, before sentencing, the defendant obtained new counsel and moved to withdraw the plea based on the court’s failure to find a factual basis before accepting the plea. The trial court denied the motion. (Ibid.)
The Court of Appeal affirmed, concluding the requirement for finding a factual basis may be satisfied at the time of sentencing. The court explained: “[A]ppellant personally and former counsel knew that no probation [report] was then in existence. Everyone contemplated that one would be prepared for the sentencing hearing. Appellant did not object and thus impliedly agreed to this procedure. He is estopped from attacking it. Even if there was error, it is subject to a harmless error analysis.” (Coulter, supra, 163 Cal.App.4th at p. 1122.)
In the present matter, the trial court did not defer the determination of a factual basis until sentencing. Rather, the court purported to find a factual basis in the police reports. However, those reports make no attempt to establish the requirements of section 186.22. Therefore, the trial court failed to satisfy its obligations under section 1192.5 with respect to enhancement 5c.
However, the question remains whether the error was harmless by virtue of the information contained in the probation report. As noted above, the People argue the opinion of Officer Briesnick amply satisfied the requirements of section 1192.5.
We question whether an expert opinion that does no more than state the legal conclusion that an offense was committed for the benefit of a criminal street gang could satisfy the requirements of section 1192.5. However, in this instance, the probation report contained much more.
In his report included as part of the probation report, Officer Briesnick stated he first learned of the I-80 Boyz in September 2005. At the time, several members of the gang crashed a party and assaulted one person, causing great bodily injury. Briesnick was told the I-80 Boyz were made up of Nortenos, Bloods and Crips from Davis and Woodland and were known for attending parties and getting into fights. Briesnick later learned that several members of the I-80 Boyz used a common hand sign. Briesnick also heard from a witness that her ex-boyfriend and several of his friends assaulted her current boyfriend and claimed to be members of the I-80 Boyz. Briesnick interviewed one of the founders of the I-80 Boyz, who said it was supposed to be a rap group and gang, but others began joining and it got out of control. Briesnick determined that 12 cases handled by the Davis Police Department involved the I-80 Boyz and involved fights and violent behavior, including four felony assaults and one robbery.
Regarding defendant, Briesnick concluded he met seven out of 11 criteria for gang validation. According to Briesnick, defendant had been contacted 13 times by law enforcement since November 2000 and in 2000 told law enforcement he considered himself to be a Norteno. In 2001 and 2002, defendant was contacted and arrested in the company of other Nortenos. In 2003, defendant was associating with Nortenos as well as Stefon Ceasar, who was later validated as an I-80 Boyz member. Since November 2005, defendant has been contacted or arrested in the company of I-80 Boyz members six times. Briesnick also saw photographs of defendant on the internet website myspace.com with members of the I-80 Boyz making I-80 Boyz gang signs. Finally, a confidential informant identified defendant as a member of the I-80 Boyz.
Defendant argues “[a]ttending parties and starting fights is not a crime listed under [section] 186.22, subdivision (e)” and, therefore, cannot be a primary activity of the gang. However, assault by means of force likely to produce great bodily injury (§ 245) does fall within section 186.22, subdivision (e). (§ 186.22, subd. (e)(1).) Officer Briesnick indicated members of the I-80 Boyz were arrested for such offenses.
Defendant further argues the record does not show the requisite predicate offenses committed on separate occasions or by two or more persons. On the contrary, the report by Officer Briesnick suggests members of the I-80 Boyz committed assaults and a robbery on different occasions.
Defendant argues Officer Briesnick’s report stated that offenses were committed “over the last two years,” without indicating whether this was before or after the offenses at issue in this matter. Defendant also argues Briesnick’s report listed Ross as a member of the Crips gang rather than the I-80 Boyz, such that it cannot be determined which gang--the I-80 Boys or the Crips--the offenses were supposed to benefit. Finally, defendant argues he consistently denied being a gang member.
A finding under section 186.22 does not require proof of current or active gang membership. (In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207.) One can commit an act for the benefit of a criminal street gang without himself being a member of that gang. As for the other defects identified by defendant, “[t]he factual basis required by section 1192.5 does not require more than establishing of 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.” (People v. Holmes, supra, 32 Cal.4th at p. 442, fn. omitted.) It is not required that the court conduct an element-by-element analysis of the offense. (People v. Marlin (2004) 124 Cal.App.4th 559, 572.)
In the present matter, the information set forth by Officer Briesnick in his report was sufficient to satisfy the factual basis requirement of section 1192.5, even if it may not have been enough to support a true finding on the enhancement at trial. Therefore, we conclude the trial court’s failure to establish a factual basis for the plea on enhancement 5c was harmless.
II
Enhancement 5a
Defendant challenges his no contest plea to the gun use enhancement associated with count five (enhancement 5a). He argues there was no factual basis to support this plea, because the evidence relied upon by the trial court failed to establish he was armed at the time of the robbery. Rather, the evidence showed Robinson and Ross were armed. Defendant points out that, at the sentencing hearing, the probation officer and the prosecutor both acknowledged there was no personal use by defendant in connection with the Circle K robbery.
The People respond that, when the parties stipulate to a factual basis in a particular document, the requirements of section 1192.5 are met, even if the document is not in the record. The People further argue the police reports were before the court at the time of the no contest pleas and the parties agreed those reports contained a factual basis. According to the People, section 1192.5 requires nothing more.
We are unsure why the People raise this argument here, inasmuch as the police reports are in fact part of the record on appeal. In any event, the People’s argument ignores the primary requirement of section 1192.5. While the parties may stipulate to a factual basis in a particular document, it is still necessary that such document contain a factual basis. Otherwise the whole purpose of the factual basis requirement--to keep a defendant from unwittingly pleading to a crime he did not commit--would be defeated. (People v. Willard (2007) 154 Cal.App.4th 1329, 1335.)
The People next argue a probable cause declaration in Davis Police Department case No. 07-1431 describes the Circle K robbery. There, it is stated defendant’s confederates, Ross and Robinson, entered the Circle K at approximately 1:34 a.m. on March 21, 2007, approached the store clerk, pointed “black automatic type handgun[s]” at the clerk, and demanded money. After approximately 15 minutes, the two departed with money and merchandise from the store and got into a waiting vehicle that was being driven by defendant. Ross was later arrested and implicated the other two in the robbery.
Section 12022.53, subdivision (b), provides for enhanced punishment where, in the commission of the offense, the defendant “personally uses a firearm.” (§ 12022.53, subd. (b).)
The report for Davis Police Department case number 07-1431 does not establish personal use by defendant. The People contend personal use is not necessary where, as here, it is alleged and proven the offense was committed for the benefit of a criminal street gang. Section 12022.53, subdivision (e)(1), reads: “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” Hence, “[i]n a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm . . . .” (People v. Salas (2001) 89 Cal.App.4th 1275, 1281.)
A principal in an offense includes both those who directly commit the offense and aiders and abettors. (§ 31; People v. Garcia (2002) 28 Cal.4th 1166, 1171, fn. 3.) Here, it is undisputed defendant, Robinson and Ross were all principals in the Circle K robbery.
As noted in the preceding section, enhancement 5c alleged the Circle K robbery was committed for the benefit of a criminal street gang, and defendant pleaded no contest to this charge. Although we have concluded the trial court failed to obtain a factual basis for this plea, we nevertheless find a sufficient factual basis in the record by virtue of the probation report. Therefore, for purposes of section 12022.53, subdivision (e)(1), it has been alleged and proven the Circle K robbery was committed for the benefit of a criminal street gang within the meaning of section 186.22.
Defendant contends that, even if section 12022.53, subdivision (e)(1), would otherwise be applicable to this matter, it does not apply where an enhancement under section 186.22 has also been imposed. Here, defendant received enhancements under both section 12022.53, subdivision (b), and section 186.22, subdivision (b)(1). Section 12022.53, subdivision (e)(2), reads: “An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.” Thus, section 12022.53, subdivision (e)(2), prohibits both enhancements where, as here, there was no personal use by the defendant.
We requested supplemental briefing on the question of the appropriate remedy where both enhancements have been imposed despite no personal use by the defendant. Both parties respond that the trial court is normally required to impose but then stay the sentence on the gang enhancement. However, the People further argue defendant is estopped to claim error in this regard, because he accepted a plea agreement with a 25-year sentence that included both enhancements. We agree.
In People v. Jones (1989) 210 Cal.App.3d 124, the court found the defendant forfeited any claim based on the prohibition against double use of a prior conviction enhancement under section 1170.1, subdivision (a), when he agreed to two enhancements for his prior conviction as part of a negotiated plea from which he derived substantial benefit. In People v. Otterstein (1987) 189 Cal.App.3d 1548, the court likewise concluded the defendant forfeited a claim based on the statutory prohibition against enhancement for infliction of great bodily injury where great bodily injury is an element of the crime of which the defendant was convicted, because the defendant had agreed to such an enhancement as part of his negotiated plea. In People v. Ellis (1987) 195 Cal.App.3d 334, the court held the defendant was estopped to challenge his admission that a prior bank robbery conviction constituted a serious felony within the meaning of the three strikes law, even though it in fact did not so qualify, because the defendant admitted as much as part of his plea agreement.
“The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (People v. Hester (2000) 22 Cal.4th 290, 295.)
Defendant nevertheless contends the proper remedy is to stay the gang enhancement and reduce his sentence accordingly. He cites as support In re Blessing (1982) 129 Cal.App.3d 1026 and People v. Velasquez (1999) 69 Cal.App.4th 503 (Velasquez). In Blessing, the defendant received multiple firearm use enhancements. Thereafter, the Supreme Court concluded multiple firearm use enhancements may be imposed only if the offenses are violent felonies. The defendant filed a petition for writ of habeas corpus, claiming his subordinate offenses were not violent felonies. The Court of Appeal agreed, and concluded the additional enhancements must be stricken. The court further concluded the defendant was not estopped to claim error in light of the change in the law. (Blessing, supra, 129 Cal.App.3d at p. 1030.)
In Velasquez, the defendant entered a negotiated plea to annoying or molesting a child and a prior conviction and was granted probation, with the understanding that if he violated probation, he would be sentenced to no more than three years. However, the triad of punishments for the offense was two, four, or six years. The defendant’s probation was revoked and he was sentenced to the middle term of four years, with one year stayed to keep within the three-year lid. (Velasquez, supra, 69 Cal.App.4th at p. 505.) The Court of Appeal concluded the sentence was unauthorized, and reduced the sentence to two years. (Id. at pp. 506-507.)
The foregoing cases are distinguishable from the present matter. In both cases, the defendant did not agree as part of the plea bargain to a specific sentence but rather to a maximum sentence. Thus, the reduced sentence imposed by the appellate court was within the terms of the plea agreement. (See Velasquez, supra, 69 Cal.App.4th at p. 505; People v. Blessing (1979) 94 Cal.App.3d 835, 839, fn. 3.) In other words, the defendant had not agreed to the sentencing irregularity. As explained by the Velasquez court: “Here, appellant did not agree or ‘stipulate’ to any sentencing irregularity to obtain the benefit of a negotiated disposition. The negotiated disposition left open the possibility of a lawful two-year state prison sentence if he violated the terms and conditions of probation. This is simply not a case where the defendant should be estopped because he is ‘trifling’ with the courts.” (Velasquez, supra, 69 Cal.App.4th at p. 506.)
Here, by contrast, defendant expressly agreed to a sentence of 25 years. To permit defendant now to claim the 25-year sentence is unauthorized, where he has received the benefit of his bargain, would be to allow defendant to “trifle” with the courts. Defendant is therefore estopped to claim the sentence must be reduced.
III
The Burglary Offense
Defendant contends there is an insufficient factual basis for his no contest plea to burglary in case No. 07-2133. At the change-of-plea hearing, the prosecution identified the Woodland Police Department report for case No. 07-1381 as the factual basis for the burglary. Defendant asserts such report recites merely that defendant “was arrested on probable cause for burglary.”
As with enhancement 5c, the People rely on the probation report to establish a factual basis for defendant’s no contest plea to the burglary charge. That report describes the offense as follows:
“On March 2, 2007, an apartment on West Cross Street was burglarized between 3:15 p.m. and 4:00 p.m.
“The victim, Sara [H.], said she was home with her boyfriend, David [D.], when [D.]’s longtime friend, Herman Robinson, arrived. The two men left that afternoon to run errands while [H.] remained home. Around 1:30 p.m., she opened her cash box in preparation to pay bills. She counted the money and realized there was $1,730 inside. As she was doing so, [D.] and Robinson returned. [H.] replaced the money and asked [D.] to put the box away. He took it upstairs and placed it in their dresser drawer.
“The three spent the remainder of the afternoon together, running errands. Robinson took a call on his cell phone from a subject named Carlos. Robinson asked Carlos to pick him up at the DMV. Robinson got into Carlos’s car, and the two drove off while [H.] and [D.] remained at the DMV.
“When they returned home, the money and the box were gone. [H.] suspected Robinson and Carlos of taking it. [D.] reluctantly agreed that his friend, Robinson, was likely responsible. There were large pry marks on the sliding glass door and on the locking mechanism. Three fingerprints were lifted from the door. The prints were later matched to Carlos Cisneros, and [H.] identified him from a photographic lineup.”
As explained earlier, the probation report was not in existence at the time of the no contest pleas and, therefore, cannot be used to establish a factual basis. However, because the description of the offense in that report amply satisfies the factual basis requirement of section 1192.5, any error in accepting the plea was harmless.
IV
Enhancement 1a
Defendant challenges his no contest plea to the gun use enhancement associated with count 1. Count 1 alleged a carjacking on March 20, 2007, the evening before the Circle K robbery. Enhancement 1a alleged personal use of a firearm in connection with this offense. The prosecution identified the police reports as the factual basis for this enhancement. Defendant argues there is nothing in the police reports to support a claim he personally used a firearm in connection with this offense.
The People respond, among other things, that a factual basis may be found in the probation report. There, the offense is described as follows:
“On March 20, 2007, around 7:40 p.m., West Sacramento officers were dispatched to the 76 Station at Harbor Boulevard and Evergreen regarding a carjacking. The vehicle’s owner, Howard [R.], said he stopped at the gas pumps with a friend and entered the gas station. As he returned to his vehicle to pump gas, a white Monte Carlo pulled up next to him. A Hispanic man jumped out of the passenger side and pointed a gun in his face. The man said, ‘Get the fuck out of the truck and leave the keys inside.’ [R.] backed away from his vehicle. He could see a man driving the Monte Carlo, but did not get a good look at him. The first subject jumped in [R.]’s Yukon and fled, following the Monte Carlo. [¶] . . . [¶]
“Larry Darnell Ross later told police that Herman Robinson and Carlos Cisneros were responsible for the carjacking.”
As with the other charges discussed above, the probation report cannot be used to support the trial court’s factual basis finding under section 1192.5 but may be used in determining that the trial court’s error was harmless.
Defendant argues even the probation report fails to establish that he, as opposed to Robinson, used a firearm in connection with the offense. The People respond that this does not matter, because defendant was also charged with a gang enhancement under section 186.22, and the probation report contains a sufficient factual basis to support this charge. Hence, the People argue, defendant is subject to the firearm use enhancement if any of the perpetrators used a firearm.
We agree with the People. As discussed above, there is a sufficient factual basis in the probation report for the gang enhancement. This same evidence is applicable to all the charged offenses. Because the probation report contains a factual basis for the gang enhancement and indicates at least one of the perpetrators used a firearm in connection with the offense, there is a sufficient factual basis for enhancement 1a.
V
Withdrawal of Plea
Defendant contends the trial court abused its discretion in denying his motion to withdraw his no contest pleas. He argues there was good cause for the withdrawal in that (1) the trial court’s implied findings were not supported by the evidence, (2) there was no factual basis for the gang enhancement, and (3) the plea form he signed contained errors and was difficult to read. We find no abuse of discretion.
In support of his motion to withdraw the pleas, defendant submitted an affidavit in which he asserted he did not understand at the time of the pleas that he was being charged with a gang enhancement. He further asserted he was not a gang member and was not armed with a firearm at the time of the offenses. Defendant claimed he was scared at the time of the hearing, could not read his attorney’s handwriting on the plea form, and did not have adequate time to discuss the matter with his attorney. Finally, defendant asserted that, at the time of the hearing, he was suffering from a medical condition that paralyzed the left side of his face and kept him from understanding what was going on.
At the hearing on the motion to withdraw the pleas, defendant testified he spent five or 10 minutes with counsel before the hearing discussing the plea bargain and did not understand all of it. He asserted counsel never informed him of a gang enhancement and he did not recall the gang enhancement being discussed at the change-of-plea hearing. Defendant testified he had just learned of the medical condition causing him to lose movement on the left side of his face and he was stressed out and scared at the hearing. He further testified counsel told him if he did not take the deal he would lose at trial and be sentenced to life in prison.
However, on cross-examination, defendant acknowledged his attorney did discuss the gang enhancement, although he asserted counsel did not explain the difference between being a gang member and committing a crime for the benefit of a gang. Defendant further acknowledged counsel discussed with him the gun enhancement but asserted he was not armed at the time of the offenses and signed the plea form admitting the gun enhancement only because he was scared. Defendant further acknowledged counsel did not tell him he would lose at trial but instead that there was a chance he would lose. Finally, defendant testified he did not want to sign the plea form but did so to avoid a potential life sentence.
Defense counsel also testified at the hearing. Counsel asserted he explained to defendant the difference between being a gang member and committing an offense for the benefit of a gang. Counsel said defendant appeared to understand him. Counsel further testified defendant was focused on receiving a determinate term rather than a life term and he asked counsel to try to negotiate a lesser prison term. Counsel did as instructed, but without success. Counsel asserted the plea form, as originally prepared by him, did not include the gang enhancement. However, the prosecution insisted on the enhancement in order to reach a 25-year sentence, and the plea form was changed. Counsel testified he explained all this to defendant and, although defendant appeared sad and upset, he agreed to the deal. According to counsel, at the change-of-plea hearing the next day, defendant appeared focused and less upset.
“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.” (§ 1018.) Whereas here the defendant was represented by counsel at the time of the guilty plea, the court has discretion whether to permit withdrawal of the plea upon a showing of good cause. (People v. Cruz (1974) 12 Cal.3d 562, 566.) “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence.” (Ibid.) “The grant or denial of such a withdrawal motion is ‘within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.’” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.)
Defendant contends good cause existed for withdrawal of his pleas in that the trial court’s implied findings supporting its denial of the motion are not supported by substantial evidence. In particular, defendant asserts he sought to withdraw the motion because he did not use a firearm in connection with the offenses, and the evidence bears this out. However, as explained above, the fact defendant did not use a firearm is irrelevant to the charges and enhancements on which he was sentenced. Because of the gang enhancement, it was sufficient that any one of the perpetrators used a firearm.
Defendant next argues there was an insufficient factual basis for the gang enhancement and, in any event, he was not aware the gang enhancement was part of the plea bargain. However, as highlighted above, there was an adequate factual basis for the gang enhancement, as reflected in the probation report, regardless of defendant’s consistent denials of being a gang member. Further, the record of the change-of-plea hearing and the testimony of defense counsel at the hearing on the motion to withdraw belies defendant’s claim that he was unaware the gang enhancement was part of the deal.
Finally, defendant asserts the illegibility and errors in the plea form he signed establish good cause to withdraw the pleas. We agree the declaration signed by defendant in connection with the pleas is not a model of clarity. However, it does list each of the four offenses to which defendant entered a no contest plea. It also indicates defendant would be admitting three enhancements, two under section 12022.53 and one under section 186.22. Although the form appears to state one of the section 12022.53 enhancements will be associated with count 8 rather than count 5, the end result is the same for defendant. More importantly, the plea form correctly indicates the agreed determinate sentence of 25 years, which was the primary issue between the parties.
Defendant claims he was confused and scared at the time of the change-of-plea hearing. This is understandable. Defendant was faced with the difficult choice between a known, determinate sentence of 25 years if he accepted the prosecution’s offer and a potential life term if he rejected it and was convicted at trial. However, there is nothing in this record to suggest defendant was not fully aware of the options he faced and did not make a voluntary and knowing choice. “A plea may not be withdrawn simply because the defendant has changed his mind.” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) Based on the record before us, we cannot say the trial court abused its discretion in denying defendant’s motion to withdraw his plea.
Disposition
The judgment is affirmed.
We concur: ROBIE, J. BUTZ, J.