Opinion
F050676
5-1-2007
THE PEOPLE, Plaintiff and Respondent, v. DERRICK LOFTIS, Defendant and Appellant.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Derrick Loftis pled no contest to second degree murder in return for dismissal of other charges. On appeal, he contends (1) this appeal has not been waived, (2) the trial court failed to establish an adequate factual basis for his plea and (3) the trial court erred by ordering a restitution fine in violation of the plea agreement. We affirm the judgment.
Accordingly, we need not resolve the issue of waiver.
FACTUAL AND PROCEDURAL BACKGROUND
On February 27, 2004, defendant and Richard Banuelos received a telephone call from 15-year-old Celena V. She informed them she wanted to buy an eight-ball of crystal methamphetamine. They went to pick her up and she got into the vehicle. They drove to the Holiday Lodge, where defendant kept his bag of methamphetamine. Defendant and Celena were in a room alone. Celena bought the methamphetamine from defendant for $100, then she smoked and snorted some of it. Defendant also consumed some with her. Defendant and Celena had been in the room for about 45 minutes when Celena began to "get `crazy by freaking out, getting hot and shaking." Banuelos called and asked defendant if they were ready to go. Banuelos arrived and the three of them left together. They went to defendants residence and Banuelos gave Celena some milk.
Leslie Saiz arrived at the residence. Defendant wanted to go to the Palace casino to look for his girlfriend. Although Celena had not improved, defendant did not take her to the hospital just down the street because "it never crossed his mind." Instead, the four of them got in the vehicle and drove toward the Palace. Defendant noticed Celena was not breathing. He shook her and told the others he wanted to take her to the hospital, but Saiz said ["N]o, ... she was [dead."] They had decided not to seek medical care because they feared going to jail. They stopped on a gravel road and Saiz and Banuelos took Celena out of the car, laid her on the ground and covered her with tumbleweeds. Defendant did not get out because he was feeling too sick to move. They drove on to the Palace to meet defendants girlfriend.
Once at the Palace, defendant played slot machines and met up with his girlfriend. They went home and defendant was sick the whole day and night. Defendant thought the methamphetamine must have been bad since he also got sick.
The following night, Celenas parents filed a missing person report. About a month later, Celenas body was found and a few days after that defendant was interviewed. He first denied any involvement in Celenas death, then stated she had overdosed. He then gave the preceding account.
On December 16, 2004, defendant and Banuelos were charged with murder and four other charges related to the incident. On June 7, 2005, the district attorney filed a complaint charging defendant and Banuelos with a single count of murder (Pen. Code, § 187, subd. (a)). The same day, defendant pled no contest to second degree murder in return for an agreement that the prosecution dismiss the information previously filed against him. Defendant did not complete a written plea form, but the following discussion took place at the plea hearing:
We take judicial notice of the information in case No. 04CM3036. (Evid. Code, §§ 452, subd. (d), 459; California Rules of Court, rule 8.252(a) (formerly 22(a)).)
All statutory references are to the Penal Code unless otherwise noted.
"THE COURT: ... In this matter, [Defense Counsel], have you fully explained the consequences of a no contest plea to your client along with his rights and defenses?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: Does he understand[] the elements of the crime [to] which hes pleading no contest?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: [Defendant], do you understand the maximum penalty for the crime youre pleading guilty to or no contest to is, as previously stated, a life term in this matter, its a second degree murder and would be a second degree murder conviction for which the penalty is 15 years to life. You would have to serve at least the minimum term before youre eligible for [parole] in this matter. [¶] Also, as previously stated, you would be ineligible for probation in this matter as well as being limited to conduct credits, work time credits, and I believe 15 percent prior to receiving any of those credits for the time youre serving in jail; do you understand that?
"DEFENDANT: Yes. [¶] ... [¶]
"THE COURT: Okay. Sir, do you understand that you have a right to a speedy and public trial in this matter?
"DEFENDANT: Yes.
"THE COURT: Do you give up that right?
"DEFENDANT: Yes.
"THE COURT: Do you understand that you have a right to a trial by jury or court?
"DEFENDANT: Yes.
"THE COURT: And do you give up that right?
"DEFENDANT: Yes.
"THE COURT: Do you understand you have a right to confront and cross-examine the witnesses against you, that is to see them, hear them, and ask questions or have your attorney do so?
"DEFENDANT: Yes.
"THE COURT: Do you give up that right?
"DEFENDANT: Yes.
"THE COURT: Do you understand you have a right to have the Court issue subpoenas to compel the attendance of witnesses and production of evidence at no cost to you?
"DEFENDANT: Yes.
"THE COURT: Do you give up that right?
"DEFENDANT: Yes.
"THE COURT: Do you understand you have a right to present evidence in your own defense including your own testimony, but no one can make you say anything about this case or plead guilty if you dont want to. Do you understand you have a right to remain silent?
"DEFENDANT: Yes.
"THE COURT: Do you give up that right?
"DEFENDANT: Yes.
"THE COURT: Do you understand you have a right to require the prosecution prove the case against you beyond a reasonable doubt?
"DEFENDANT: Yes.
"THE COURT: Do you give up that right?
"DEFENDANT: Yes.
"THE COURT: Do you understand by pleading guilty or no contest you will be waiving your right to appeal any conviction in this matter?
"DEFENDANT: Yes. [Italics added.]
"THE COURT: Do you understand if youre not a citizen of the United States this plea can result in deportation, exclusion from admission to the United States or denial of naturalization or amnesty?
"DEFENDANT: Yes.
"THE COURT: Do you understand, sir, that again since you would be sentenced to a state prison in this matter that if placed on parole that you would be a lifetime placement on parole unless terminated earlier by the board of prison terms[?]
"DEFENDANT: Yes.
"THE COURT: Do you understand if youre on parole or probation to any other court this plea will be a violation of probation or parole?
"DEFENDANT: Yes.
"THE COURT: Do you understand that the Court must impose a fee of not less than $200, no more than $10,000 and order you pay that amount to the State Restitution Fund?
"DEFENDANT: Yes. [Italics added.]
"THE COURT: Do you understand that the Court could also order you pay restitution to the victim or the victims family in this matter or any other person hurt by this case?
"DEFENDANT: Yes.
"THE COURT: Do you understand that in addition to those fees and restitution you could be fined an amount up to $10,000 plus penalty assessments up to $35,000, I believe; do you understand that?
"DEFENDANT: Yes. [Italics added.]
"THE COURT: Do you understand the nature of the charges against you, sir?
"DEFENDANT: Yes.
"THE COURT: Do you understand the possible defenses to the charge?
"DEFENDANT: Yes.
"THE COURT: Has anyone made any promises to you to get you to plea[d] other than what weve said here in open court?
"DEFENDANT: Nope.
"THE COURT: Has anyone made any threats against you or any member of your family or anyone close to you to get you to plea[d]?
"DEFENDANT: Nope.
"THE COURT: Factual basis.
"[DEFENSE COUNSEL]: Your Honor, pursuant to People versus West [(1970) 3 Cal.3d 595, defendant] is entering this plea to avoid the possibility of being convicted of first degree murder.
"THE COURT: Is that correct, [Prosecutor]?
"[PROSECUTOR]: That is correct, its People versus West.
"THE COURT: Okay. The Court will accept, will be willing to accept it pursuant to People versus West. [Italics added.]
[Defense Counsel], do you concur in your clients waiver of Constitutional, statutory rights?
"[DEFENSE COUNSEL]: I do, your Honor.
"THE COURT: [Defendant], do you have any questions about whats going on in court today, sir?
"DEFENDANT: Nope.
"THE COURT: Do you understand everything weve gone over today then?
"DEFENDANT: Yep.
"THE COURT: The Court will find the defendant understands the nature of the charges and all waivers are voluntarily, intelligently, and expressly made.
"[Defendant], to the charge in Count I of the Complaint that on or about the ... 28th day of February, 2004, you did commit a felony violation of Section 187(a) of the Penal Code of the State of California in that you did unlawfully, and with malice aforethought, murder Celena V., a human being, to that charge how do you now plea[d]?
"DEFENDANT: No contest.
"THE COURT: Do you understand the no contest plea is treated the same as a guilty plea for sentencing purposes?
"DEFENDANT: Yes.
"THE COURT: [Defense Counsel], do you concur in your clients entry of the no contest plea?
"[DEFENSE COUNSEL]: I do, your Honor.
"THE COURT: The Court will accept the no contest plea as knowingly, intelligently, and voluntarily [made]."
The trial court sentenced defendant to 15 years to life and ordered, among other things, that defendant pay a $3,000 restitution fine pursuant to section 1202.4, subdivision (b) and a $3,000 parole revocation fine pursuant to section 1202.45, which was suspended pending revocation of parole. The prosecution formally dismissed the information in Case No. 04CM3036 as to defendant.
DISCUSSION
I. Factual Basis to Support Plea
Defendant contends the trial court failed to establish a factual basis for his no contest plea. He argues the record fails to present such a basis because there was no evidence he intended to kill Celena and no evidence he engaged in an inherently dangerous felony when he sold Celena the methamphetamine. The People respond that the plea in this case was an unconditional plea that did not invoke section 1192.5 and therefore required no statement of factual basis. It appears to us, however, that the plea was negotiated and was conditioned on the dismissal of several other charges. Nevertheless, we agree with the People that any error was harmless because the record supports a factual basis.
An agreement between the prosecution and the defendant that is approved by the court, wherein a charge of murder is fixed at second degree and another charge is dismissed in exchange for the defendants plea, is a plea bargain contemplated by the provisions of sections 1192.1, 1192.2, 1192.4 and 1192.5 (People v. Orin (1975) 13 Cal.3d 937, 942.)
Section 1192.5 provides that if the trial court approves a negotiated plea, it must independently inquire whether a factual basis exists for the plea of guilty or no contest to a felony offense. In effect, section 1192.5 requires the court to "`satisfy itself ... that there is a factual basis for the plea." (People v. Hoffard (1995) 10 Cal.4th 1170, 1181.) The factual basis "does not require more than establishing of a prima facie factual basis for the charges." (People v. Holmes (2004) 32 Cal.4th 432, 441 (Holmes), fn. omitted.) The purpose of the inquiry 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." (People v. Watts (1977) 67 Cal.App.3d 173, 178 (Watts ).) To satisfy section 1192.5, the trial court must make an on-the-record inquiry; a mere recitation by the court that there is a factual basis is not sufficient. (People v. Tigner (1982) 133 Cal.App.3d 430, 435; see Watts, supra, 67 Cal.App.3d at pp. 179-181.)
A stipulation by counsel that a particular document, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement, reflects facts sufficient to establish a factual basis for a plea may satisfy section 1192.5. (Holmes, supra, 32 Cal.4th at p. 440.) But a bare stipulation that there is a factual basis, without reference to any particular document, is often considered inadequate. (Id. at p. 442, fn. 8 [better approach is to go beyond a bare stipulation and establish, by inquiry of defendant or by reference to a document, a sufficiently detailed factual record]; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1577.)
The trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty or no contest plea. (Holmes, supra, 32 Cal.4th at p. 443.) "The trial courts acceptance of the guilty [or no contest] 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 [negotiated] plea." (Ibid.; see People v. Mickens (1995) 38 Cal.App.4th 1557, 1564; Watts, supra, 67 Cal.App.3d at p. 182 [error harmless in light of the superior court file containing grand jury transcript and presentence probation report establishing defendant "participated in the crimes with which he was charged"].)
Here, the trial court accepted counsels stipulation for the factual basis of the plea pursuant to People v. West, supra, 3 Cal.3d 595. Assuming this stipulation, which referenced no specific document containing a factual basis, was inadequate, we conclude the error was harmless. As noted, "[i]f the trial court fails to make an on-the-record inquiry as to the factual basis for the plea, the appellate court is free to review the record and determine whether the error is harmless, i.e., whether the record contains sufficient information to ensure the defendant committed the acts to which the plea was entered." (People v. Wilkerson, supra, 6 Cal.App.4th at p. 1576.) In this case, the probation report provides an adequate factual basis for defendants plea to second degree murder.
California law recognizes three theories of second degree murder, one of which is implied malice murder. (People v. Robertson (2004) 34 Cal.4th 156, 164 [malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life].)
See also CALCRIM No. 520 (defendant acted with implied malice if he intentionally committed an act; the natural consequences of the act were dangerous to human life; at the time he acted, he knew his act was dangerous to human life; and he deliberately acted with conscious disregard for human life; malice aforethought does not require hatred or ill will toward victim; it is a mental state that must be formed before the act that causes death is committed; it does not require deliberation or the passage of any particular period of time; an act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act; a natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes; in deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence; there may be more than one cause of death; an act causes death only if it is a substantial factor in causing the death; a substantial factor is more than a trivial or remote factor; however, it does not need to be the only factor that causes the death; defendant had a legal duty to help the victim; if you conclude that the defendant owed a duty to the victim, and the defendant failed to perform that duty, his failure to act is the same as doing a negligent or injurious act). See also CALJIC No. 8.31 (murder of the second degree is the unlawful killing of a human being when the killing resulted from an intentional act; the natural consequences of the act are dangerous to human life; and the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life; when the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being).
Here, the probation report contained facts supporting a finding that defendant knew the consequences of his failure to seek medical care for Celena placed her life in danger. He observed her adverse reaction and her continuing condition. He suggested taking her to the hospital and therefore recognized the seriousness of her situation. The facts also show defendant acted with conscious disregard for Celenas life. He knew she was ill and did nothing to help her. The hospital was only a short distance from his house. He and his cohorts simply took Celena along in the vehicle when they headed to the Palace casino. When she quit breathing, defendant mentioned the hospital to his cohorts but he made no real effort to get her there. On the way to the casino, they stopped the vehicle, placed Celenas body on the roadside and covered it with tumbleweeds. When they arrived at the casino, defendant played slot machines. In sum, while Celena was experiencing a violent reaction to the methamphetamine and was obviously ailing, even when she quit breathing, defendant consciously disregarded her life-threatening condition and deprived her of medical care, knowing he was placing her life in danger.
"[T]he common law does not distinguish between homicide by act and homicide by omission." (People v. Burden (1977) 72 Cal.App.3d 603, 618; see also People v. Dellinger (1989) 49 Cal.3d 1212, 1220.) Passive conduct or omissions may satisfy the actus reas component of murder where the person is under a duty to act. (See People v. Protopappas (1988) 201 Cal.App.3d 152, 168 [doctors failure to assist his patient after inappropriately administering anesthesia]; People v. Burden, supra, at pp. 620-621 [fathers failure to feed his child].) Defendant owed Celena a duty to act. He created the initial risk by selling her the methamphetamine. He observed her serious reaction to the drug and knew she was still sick when she entered the vehicle. Once she was in the vehicle with defendant and the others, she had no other access to help. At that point, she was entirely dependent on defendant and the others for assistance. We believe these circumstances, which placed Celena in grave peril, resulted in a duty on defendants part to act. (See, e.g., Health & Saf. Code, § 11704, subd. (a) [drug dealer liability; person who knowingly participates in marketing of illegal controlled substances is liable for civil damages; person may recover damages for injury resulting from an individuals use of illegal controlled substance]; Williams v. State of California (1983) 34 Cal.3d 18, 23 [no affirmative duty to act absent special relationship unless actor has created a situation of peril increasing risk of harm]; McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1021-1022 [same]; Rest.2d Torts § 314A, comment d. [duty to protect a person against unreasonable risk of harm extends to risks arising out of the actors own conduct].)
We conclude the record provided an adequate factual basis for defendants plea to second degree murder. Any error in the trial courts failure to make specific reference to that factual basis was therefore harmless in light of the record.
II. Restitution
Defendant also contends the plea negotiations did not address a restitution fine and therefore the trial court violated the terms of his plea bargain by imposing a $3,000 restitution fine. According to defendant, pursuant to People v. Walker (1991) 54 Cal.3d 1013 (Walker), the restitution fine must be reduced to the statutory minimum of $200, and the parole revocation fine must also be reduced to $200.
We recognize that the Supreme Court has granted review in People v. Crandell (May 20, 2005, H027641) [nonpub. opn.] review granted August 29, 2005, S134883. The courts docket states that the issue presented in that case is whether the "imposition of a restitution fine under Penal Code section 1202.4, subdivision (b), violate[s] a defendants plea agreement if the fine was not an express term of the agreement[.]" (See the courts website at http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm? dist=0&doc_id=376320&doc_no=S134883&search=party&start=1&query_partyLast NameOrOrg=crandell.)
Section 1202.4 mandates judicial imposition of a restitution fund fine whenever a person is convicted of a crime. (§ 1202.4, subds. (a)(3)(A).) The trial court shall impose the restitution fine "unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (§ 1202.4, subds.(b), (c).) In the absence of extraordinary reasons, a minimum fine of $200 is mandatory after a felony conviction. The sentencing court has discretion to impose a fine of up to $10,000 in light of all relevant factors. (§ 1202.4, subds.(b)(1), (b)(2), (c), (d).)
A restitution fine qualifies as punishment for the purpose of plea bargains, and because the punishment may not significantly exceed that which the parties agreed upon in the bargain, the restitution fine should generally be considered in plea negotiations. (Walker, supra, 54 Cal.3d at p. 1024; § 1192.5.) Before taking a guilty or no contest plea, a trial court should advise the defendant of the minimum $200 and maximum $10,000 restitution fine. (Walker, supra, at pp. 1020-1022.) If the restitution fine violates the plea agreement, the remedy on appeal is reduction of the fine to the statutory minimum of $200. (Id. at pp. 1028-1030.)
Section 1192.5 states in paragraph two: "Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea."
A defendant cannot establish that a restitution fine violated his plea agreement without evidence that the agreement was for no fine or for a minimum fine within a statutory range. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1384.) Furthermore, "[t]he trial courts failure to recite an agreement on the fine does not establish there was an agreement on a minimum fine. To the contrary, it suggests an implicit agreement that the imposition and amount of any fines was left to the discretion of the sentencing court. Such an implicit agreement is further confirmed when, prior to entering a guilty plea, a defendant acknowledges without objection that the court may impose fines above a stated minimum amount." (People v. Sorenson (2005) 125 Cal.App.4th 612, 619; People v. Knox (2004) 123 Cal.App.4th 1453, 1461; People v. Dickerson, supra, at p. 1385.)
In this case, before accepting defendants plea, the court inquired whether defendant understood the consequences of the plea. The court asked, "Do you understand that the Court must impose a fee of not less than $200, no more than $10,000 and order you pay that amount to the State Restitution Fund?" Defendant answered affirmatively. The probation report recommended a 15-year-to-life prison sentence, a restitution fine of $3,000 pursuant to section 1202.4, subdivision (b), and an additional (suspended) restitution fine of $3,000 pursuant to section 1202.45. The probation report thereby notified defendant he was facing a $3,000 restitution fine. (People v. Phillips (1994) 25 Cal.App.4th 62, 74-75 [probation report notified the defendant that reimbursement of attorney fees was sought].) We note that at sentencing neither defendant nor his attorney objected to the probation reports recommended fines or to the courts imposition of fines. If the restitution fine violated defendants plea bargain, defendant or his attorney could be expected to have commented or objected at sentencing. The lack of objection demonstrates that no one in the trial court seemed to think that the imposition of the $3,000 restitution fines violated the terms of the bargain. (People v. Dickerson, supra, 122 Cal.App.4th at p. 1385.)
The record establishes that the restitution fines were part of the negotiated disposition, that defendant was advised of the consequences of the fines prior to entry of his plea, and that he indicated his understanding of those consequences. On this record, defendant cannot show that the agreement was for no fine or for the minimum fine. Indeed, he reasonably could not have understood the negotiated plea agreement to mean that no substantial fine would be imposed. Accordingly, we conclude defendant has not established that the sentencing courts imposition of a $3,000 restitution fine violated his plea agreement.
DISPOSITION
The judgment is affirmed.
We Concur:
Cornell, Acting P.J.
Dawson, J.