Opinion
B188491
5-2-2007
THE PEOPLE, Plaintiff and Respondent, v. STANLEY NILES HEAD, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Stanley Head appeals his conviction of second degree commercial burglary and petty theft with priors. His sole contention is that the court erred in refusing to accept his guilty plea. We find no error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On September 11, 2005, Albert Alves, a loss prevention agent at Winco Food Company in Pomona, watched on a video monitor as appellant placed liquor bottles into a shopping cart which contained a few other items. Appellant moved to another aisle and, after looking around, loosened his belt and concealed the contents of the cart inside his waistband and pulled his shirt down over them. Appellant left the store without paying for the items. Mr. Alves detained appellant, and photographed him with seven Winco items in his possession: three bottles of liquor, two packages of bacon, and two bottles of body wash. The incident also was recorded on the surveillance video in the Winco security office.
Pomona Police Officer Jerry Paredes responded to a call from Winco. He spoke with Mr. Alves, and then advised appellant of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Appellant waived his rights and told Officer Paredes he had entered the store without any money, had taken the items he needed, concealed them in his pants, and then "simply walked out." Appellant admitted he entered the store for the purpose of stealing.
Appellant was charged with one count of second degree commercial burglary in violation of Penal Code section 459 (all further statutory references are to this code), and one count of petty theft with priors in violation of section 666. It was alleged he had suffered a prior serious or violent felony conviction within the meaning of section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i), and had served two prior prison terms pursuant to section 667.5, subdivision (b).
A plea agreement was reached, but problems arose during the taking of the guilty plea. Appellant then went to trial, and was convicted as charged. He was sentenced to a total term of eight years. This is a timely appeal from the judgment of conviction.
DISCUSSION
At appellants arraignment on October 18, 2005, the prosecutor informed the court that he had offered appellant "[f]our years at 80 percent." The court noted that appellant had a potential sentence of eight years, and defense counsel indicated his client was rejecting the offer. The court then proceeded to hear appellants Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.)
After the court denied the Marsden motion, defense counsel asked that the matter be put on second call so he could talk to his client about accepting the four-year offer. When the case was called again, counsel indicated appellant would plead guilty to count 1, second degree commercial burglary. Appellant signed, and the court reviewed, a felony advisement of rights, waiver and plea form. The court asked appellant if he had read and understood the document. Appellant said yes, and acknowledged that he had gone over the form with his attorney. Asked if he had any questions, appellant said, "Yeah. I would just like to know do I got any—is that a strike or— " Defense counsel stated he had advised appellant it was not a strike, and the court stated, "The new charge is not a strike." With that, the court turned the matter over to the prosecutor, Mr. Clem, to take the plea.
The prosecutor advised appellant of his trial rights, and appellant waived those rights on the record. He stated he understood that the agreement was for four years, and that he would have to serve at least 80 percent of that term because he was admitting the strike prior. The prosecutor proceeded to take appellants plea:
"Mr. Clem: Mr. Head, as to count 1, how do you plead that on or about September 11th of 2005, you committed a felony violation of Penal Code section 459, known as second degree commercial burglary. How do you plead, sir?
"The Defendant: Guilty.
"Mr. Clem: Sir, do you admit a strike prior pursuant to Penal Code section 1170.12(A) through (D), that in 1999, in this courthouse, you were convicted of the crime of making a criminal threat. Do you admit that prior strike conviction?
"The Defendant: No. Because I didnt—what do you mean, I
"The Court: Enter plea of not guilty.
"The Defendant: I dont understand.
"The Court: All deals are off.
"The Defendant: I dont understand what that means."
The court then asked defense counsel about trial dates, and handed the plea form back, stating, "We are never going to need that."
Appellant claims the court erred in refusing to accept his guilty plea to count one. "[I]t is error to reject a competent defendants offer of an unconditional plea of guilty in a noncapital case where there is a factual basis for the plea." (People v. Reza (1984) 152 Cal.App.3d 647, 654.)
Taken alone, the quoted plea colloquy would seem to support appellants claim of error. His hesitation in admitting the prior strike conviction may have been nothing more than confusion about the effect of his admission. Rather than immediately rejecting the plea, the court could have inquired further as to whether appellant was confused and whether he still wished to enter the plea. But we have more than the plea colloquy to consider. The transcript of the Marsden hearing immediately preceding the rejection of the plea supports the courts rejection of the guilty plea.
The Marsden hearing occurred immediately after appellant initially rejected the four-year-plea offer on October 18, 2005. Appellant told the court his attorney had told him about a 16-month offer, and was going to check to see if appellant had a strike. If he did, then he would take the low term offer. Appellant had been waiting for that information, and had not received an answer. The court explained to appellant that he did have a strike. "In fact, you went to prison on it. Criminal threats is a strike. And you pled no contest to it and you were sentenced to state prison."
Appellant then talked about an earlier offer, and said if he had known he had a strike, he would have taken the deal he was offered at the beginning. The court noted that appellant had different counsel at that point, and reminded him that the offer was now four years. Appellant repeated that if he had known about the strike, he would have taken the earlier deal.
Counsel was asked to respond. He stated that predecessor counsel had informed appellant that it appeared he did have a strike, and the file showed appellant had been offered 32 months. Appellant tried to get 16 months, but could not. Counsel then received the file, saw the criminal threats strike, and informed appellant of the strike. Before the preliminary hearing, appellant was offered 44 months, but he turned it down. And now, after the preliminary hearing, the offer was 48 months.
Counsel also explained that a closer look at the file showed appellant might have two strikes, not just one. The court agreed, and told appellant that would make him a third striker, "looking at 27 years to life." The court found no reason to relieve counsel, and denied the Marsden motion.
The plea colloquy, and the courts ultimate refusal to accept appellants guilty plea, followed this Marsden hearing. The courts decision was informed by the unequivocal statements to appellant during the Marsden hearing that he did in fact have at least one, and potentially two strikes, and by appellants history of rejecting two prior plea deals. Given that background, it was reasonable for the court to interpret appellants hesitation as a rejection of the plea offer, not confusion.
But even if we found error in the courts rejection of the plea, error in rejecting a guilty plea is subject to harmless error analysis. (See People v. Reza, supra, 152 Cal.App.3d at p. 654.) The transcript from the second Marsden hearing demonstrates that any error was harmless.
On November 28, 2005, the parties appeared for a readiness conference, and appellant made a second Marsden motion. Appellant complained that defense counsel was not representing him properly, and was urging him to accept a deal. Counsel explained that he reviewed the preliminary hearing transcript with appellant, advised appellant that there was a videotape of the event, and reminded appellant that he had admitted to the loss prevention officer that he had taken the items because he was homeless. He gave appellant his view that a jury would find him guilty, and that if he were convicted, he probably would not get less than four years, and could get eight. Appellant continued to complain that defense counsel "told me to my face that I was guilty and I should take the four years." He again said he had been waiting to find out if the strike was true, and he had not heard an answer to that question.
The court responded: "The strike is good. Now the offer is four. The chances are if you lose you could get more, all the way up to eight. I dont know if eight is justified, but I could see six very easily." Appellant gave no indication he wanted to accept the offer at that point. The court heard appellants other complaints about counsel, and denied the Marsden motion.
Defense counsel then stated, "The D.A. has told me today that they are continuing to offer Mr. Head the same deal they did before, which is four years. I have told him I think you ought to take that four years. But that is an opinion based on handling a lot of these cases." Appellant said nothing, and the court concluded: "It is up to him. He has a right to a trial. You are willing to try it. He wants to go to trial."
In open court, the prosecution and defense announced ready for trial. The court inquired, "Are the People taking that four-year offer off the table?" The prosecutor said yes, and acknowledged that at the next court date, the People would offer five years. The court told appellant it would see him on Wednesday for trial. Appellant said, "Okay." He made no effort to preserve or accept the four-year bargain.
The courts rejection of appellants guilty plea did not deprive appellant of the opportunity to accept the four-year offer at a later date. Instead, it was appellant who chose not to accept the offer. There is no possibility appellant would have received a more favorable result in the absence of the claimed error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Reza, supra, 152 Cal.App.3d 647, 654.)
DISPOSITION
The judgment is affirmed.
We concur:
WILLHITE, J.
SUZUKAWA, J.