Opinion
B297238
05-14-2020
THE PEOPLE, Plaintiff and Respondent, v. RUBEN DELGADO, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Chung L. Mar, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. MA072173 APPEAL from a judgment of the Superior Court of Los Angeles County, Richard E. Naranjo, Judge. Affirmed as modified with directions. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Ruben Delgado pled no contest to possession of methamphetamine for sale with two priors and was sentenced to seven years four months in county jail. On appeal, he argues that the enhancements must be stricken because his prior convictions no longer qualify as drug priors under the enhancement statute. The People properly concede the point, and we agree. Defendant also argues that the trial court failed to establish a factual basis for his plea. We find no abuse of discretion. We therefore modify the judgment to strike the two three-year enhancements and affirm as modified.
BACKGROUND
Defendant was charged by felony complaint with one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 1). The complaint also alleged three drug priors (§ 11370.2, subd. (c)) and four prison priors (Pen. Code, § 667.5, subd. (b)).
All undesignated statutory references are to the Health and Safety Code. --------
Pursuant to a negotiated plea, in October 2017, defendant pled no contest to count 1 and admitted two prior convictions for violating section 11378. He was sentenced to an aggregate term of seven years four months in county jail—the low term of 16 months for count 1 (§ 11378) plus three years for each of the enhancements (§ 11370.2, subd. (c)). The court also ordered defendant to pay a $300 restitution fine (Pen. Code, § 1202.4), a crime lab fine (§ 11372.5) of $50 plus penalty assessments, a drug program fine (Pen. Code, § 1463.13, subd. (d)) of $150 plus penalty assessments, a $30 conviction assessment (Gov. Code, § 70373), and a $40 court security fee (Pen. Code, § 1465.8).
Defendant filed a timely notice of appeal. He requested a certificate of probable cause, which the court granted.
DISCUSSION
1. The drug priors must be stricken.
Defendant contends the two three-year enhancements imposed under section 11370.2, subdivision (c), should be stricken because Senate Bill No. 180 (2017-2018 Reg. Sess.) (S.B. 180) removed his prior convictions as qualifying convictions for imposition of the enhancement. The People properly concede the point, and we agree.
Effective January 1, 2018, S.B. 180 "removes a number of prior convictions from the list of prior convictions that qualify a defendant for the imposition of an enhancement under section 11370.2, subdivision (c)." (People v. Millan (2018) 20 Cal.App.5th 450, 454 (Millan).) A conviction for violating section 11378 is "[a]mong those convictions that no longer serve to qualify a defendant for an enhancement under section 11370.2, subdivision (c)." (Millan, at p. 454.) Thus, "the amendment to ... section 11370.2, subdivision (c) lessens punishment for a person ... whose prior convictions no longer qualify for the three-year ... section 11370.2, subdivision (c) enhancement." (Id. at p. 455-456.)
The amendment to section 11370.2, subdivision (c), applies here because the judgment is not yet final. (Millan, supra, 20 Cal.App.5th at p. 455 [S.B. 180 amendment applies to case pending on appeal]; see In re Estrada (1965) 63 Cal.2d 740, 742 [a defendant whose judgment is not yet final may take advantage of a change in the law that reduces the punishment for a particular offense].)
Here, both of the three-year enhancements imposed under section 11370.2, subdivision (c), were based on defendant's prior convictions for violating section 11378. Because those prior convictions "no longer qualify for the three-year ... enhancement," the two enhancements under section 11370.2, subdivision (c), must be stricken. (Millan, supra, 20 Cal.App.5th at pp. 455-456; People v. Zabala (2018) 19 Cal.App.5th 335, 344-345 [in an appeal from a guilty plea, modifying the judgment to strike the no-longer-valid drug enhancements].)
2. There was a sufficient factual basis for defendant's plea.
Before accepting a plea of guilty or no contest to a felony charge, the trial court must "satisfy itself" that "there is a factual basis for the plea," and that the plea is freely and voluntarily made. (Pen. Code, § 1192.5.) Defendant contends the court here failed to establish a factual basis for his plea because the police report, which the parties stipulated provided that factual basis, is not part of the record, and without that document, the court was required to ask defendant whether he was satisfied with his attorney's advice. We disagree.
" '[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.]" (People v. Palmer (2013) 58 Cal.4th 110, 118-119 (Palmer).)
Penal Code section 1192.5 requires the trial court, when taking "a conditional plea of guilty or no contest," "to make an inquiry to satisfy itself that there is a factual basis for" the plea. (Palmer, supra, 58 Cal.4th at p. 118.) "The purpose of the factual basis requirement is to help ensure that the constitutional standards of voluntariness and intelligence are met. [Citation.] ... [A]lthough the statute requires the ' "inquiry to be made of defendant" [citation],' a 'stipulation by counsel to the plea's factual basis is consistent with the legislative purpose of the statute.' " (Ibid.)
When a factual basis is established by stipulation, the " 'better approach' ... is for counsel's stipulation" to refer to "a particular document that provides an adequate factual basis ... . [Citation.]" (Palmer, supra, 58 Cal.4th at p. 118.) Here, counsel stipulated that the police report provided a factual basis for defendant's plea. Defendant emphasizes, however, that that document is not in the record.
In Palmer, the Supreme Court held that a court may "satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to ... refer to a document in the record" as long as "the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsel's advice." (Palmer, supra, 58 Cal.4th at p. 118, italics added.) Defendant argues that in Palmer, unlike in this case, the court asked the defendant whether he was satisfied with his attorney's advice. The court's failure to do so here, he contends, was error.
But Palmer didn't hold that an explicit inquiry was required. Instead, Palmer suggested that the plea colloquy, as a whole, must "reveal[ ] that the defendant ... is satisfied with counsel's advice." (Palmer, supra, 58 Cal.4th at p. 118.)
Here, although the court did not explicitly ask defendant how he felt about his attorney's advice that he plead guilty, defendant was given ample opportunity to talk to the judge about his plea. Before the court took the plea, defendant asked the court to put over sentencing under People v. Cruz (1988) 44 Cal.3d 1247 and spoke intelligently with the court about Cruz waivers. After the court denied defendant's request, it emphasized that defendant did not have to take the plea deal and that it did not want defendant to feel pressured to move forward. Next, defendant asked the court whether he would be able to work while he was in custody. Then, defendant agreed that by initialing and signing the waiver of rights form, he understood the charges against him, possible punishment, consequences of pleading no contest, and his constitutional rights. After the court took the plea and sentenced defendant, it again asked whether defendant understood and accepted the terms of his deal. Defendant agreed that he did, then clarified that he would receive half-time custody credits.
Taken together, this record establishes that the plea was voluntary and intelligent—and it "reveals" that defendant "discussed the elements of the crime and any defenses with his ... counsel and [was] satisfied with counsel's advice." (Palmer, supra, 58 Cal.4th at p. 118.) We find no abuse of discretion.
DISPOSITION
The judgment is modified to strike the two three-year enhancements imposed under Health and Safety Code section 11370.2, subdivision (c). As modified, we affirm. Upon issuance of the remittitur, the superior court is directed to amend the abstract of judgment and the sentencing minute order to reflect the judgment as modified.
The clerk of this court is directed to send a copy of this opinion and the remittitur to the Los Angeles County Sheriff's Department. (Cal. Rules of Court, rule 8.272(d)(2).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
DHANIDINA, J.