Opinion
F073113
07-06-2017
THE PEOPLE, Plaintiff and Respondent, v. ASHLEY JAYLEEN POLSTON, Defendant and Appellant.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Keith P. Sager, Deputy Attorneys General, for Plaintiff and Respondent.
MODIFICATION OF OPINION ON DENIAL OF REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion herein filed on July 6, 2017, be modified as follows:
1. In the last paragraph at the bottom of page 2, strike the first four sentences and insert the following sentences in their place:
M.G. was transported by ambulance to Bakersfield Memorial Hospital on September 4, 2014. Two days before the September 4, 2014 incident, the victim had been transported to Mercy Hospital as a result of reportedly falling off the bed. Though M.G. was transported to a different hospital after the second incident, the same emergency room physician treated M.G. on both occasions. The physician told investigating officers that after the first incident he had diagnosed M.G. with a concussion, and released him without conducting any CT scans.
2. In the first full paragraph at the top of page 3, strike the first sentence and insert the following sentence in its place:
A physician at Valley Children's Hospital reviewed M.G.'s medical records, reports and x-rays and told officers that M.G. sustained a right subdural hemorrhage and retinal hemorrhaging caused by "an acceleration and decelerative rotational force applied to the victim's head and neck.
3. In the last full paragraph at the bottom of page 7, strike the seventh sentence (starting with "Lampkin did not recall ..." and ending with "... during trial preparation.") and insert the following sentence in its place:
Lampkin testified he did not talk with Polston about designating an expert, but he may have said something about getting an expert. They did not discuss the details of hiring an expert because that would have come up during trial preparation.
4. In the first paragraph under the "DISCUSSION" heading on page 10, strike the third sentence (starting with "First, she argues ..." and ending with "... expert medical witness.") and insert the following sentence in its place:
First, she argues defense counsel was ineffective because he failed to properly investigate possible defenses to the charges, including obtaining the assistance of an expert.
5. In the first full paragraph on page 11, strike the first three sentences and insert the following sentences in their place:
Polston argues, in essence, that defense counsel was ineffective because he failed to obtain the assistance of a medical expert to advise him regarding the medical issues and possible defenses before allowing Polston to accept the plea offer. Polston has not cited any authority which supports this proposition. Indeed, such a rule would have a significant chilling effect on plea bargaining; the proposition would prevent plea bargaining until defense counsel has completed significant trial preparation.
6. In the last full paragraph at the bottom of page 11, strike the second sentence ("The evidence supports this assertion.") and insert the following sentences in its place:
As previously set forth, Lampkin testified he did not talk with Polston about designating an expert, but he may have said something about getting an expert. They did not discuss hiring an expert.
7. On page 13, strike the second and third full paragraphs, including footnote 9, and insert the following three paragraphs in their place:
This is not to say that a defense attorney cannot be ineffective when representing a defendant during plea negotiations. "Acknowledging guilt and accepting responsibility by an early plea respond to certain basic premises in the law and its function. Those principles are eroded if a guilty plea is too easily set aside based on facts and circumstances not apparent to a competent attorney when actions and advice leading to the plea took place. Plea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks. The opportunities, of course, include pleading to a lesser charge and obtaining a lesser sentence, as compared with what might be the outcome not only at trial but also from a later plea offer if the case grows stronger and prosecutors find stiffened resolve. A risk, in addition to the obvious one of losing the chance for a defense verdict, is that an early plea bargain might come before the prosecution finds its case is getting weaker, not stronger." (Premo v. Moore (2011) 562 U.S. 115, 124-125 (Premo).)
"In the case of an early plea, neither the prosecution nor the defense may know with much certainty what course the case may take. It follows that each side, of necessity, risks consequences that may arise from contingencies or circumstances yet unperceived. The absence of a developed or an extensive record and the circumstance that neither the prosecution nor the defense case has been well defined create a particular risk that an after-the-fact assessment will run counter to the deference that must be accorded counsel's judgment and perspective when the plea was negotiated, offered, and entered." (Premo, supra, 562 U.S. at p. 126.)
A defense attorney is not ineffective simply because he or she has not reached a place in the process where the case is well defined before his or her client decides to accept a plea agreement. Polston has not shown that the investigation conducted by counsel prior to the plea was lacking.
8. On page 27, strike the second full paragraph and insert the following paragraph in its place:
However, reversal is not required because Polston cannot establish prejudice. "[W]hen trial counsel stipulates to a factual basis for a plea, but appellate counsel claims the plea lacks an adequate factual basis, an appellate court may review the record to determine if it meets the factual basis requirement." (People v. Mickens (1995) 38 Cal.App.4th 1557, 1564.) "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.) Here, as stated above, the report of the probation officer provides the factual support for the plea. Polston stated she fell asleep while lying on the bed with M.G. next to her. When Polston woke up, M.G. was on the floor gasping for air with partially closed eyes. A paramedic reported that two days earlier a similar situation occurred involving Polston and M.G. because of a fall. A CT scan located a subdural brain bleed and doctors reported M.G. was in critical condition. M.G. was transported to Valley Children's Hospital, where a physician diagnosed a right subdural hemorrhage and retinal hemorrhaging caused by "an acceleration and decelerative rotational force applied to the victim's head and neck." The chronic hemorrhaging described by the radiologic imaging indicated there had been a prior injury to M.G. The physician opined "the fall is not related to the injury sustained by the victim and non-accidental trauma is suspected."
9. On page 28, strike the first full paragraph and insert the following paragraphs in its place:
This report establishes a factual basis for the plea. It describes suspected non-accidental trauma to M.G. Polston attributed the injuries to M.G. falling off a bed on two occasions, but the injuries were not fall related. Polston
admitted M.G. was sleeping next to her when the September 4, 2017 fall occurred, and described how the first fall occurred. From her description, it is fair to assume Polston was present during both incidents. The factual basis requirement does not require the court to resolve contradictory evidence nor does the court need to be convinced beyond a reasonable doubt that Polston is guilty. (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1578.)
Viewing the statements in the report in their entirety, the record provides sufficient evidence to prove that the act alleged to have been committed by Polston constitutes the offense admitted and an adequate factual basis could have been established. Polston has not established she suffered any prejudice by the trial court's failure to obtain a factual basis for the plea.
This modification does not effect a change in the judgment.
The petition for rehearing is denied.
/s/_________
Poochigian, Acting P.J. WE CONCUR: /s/_________
Smith, J. /s/_________
Meehan, J. 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. BF159820A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Henry (Skip) A. Staley, Judge. (Retired Judge of the Kern Sup. Ct. assigned by the Chief Justice pursuant to article VI, § 6 of the Cal. Const.) Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Keith P. Sager, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Ashley Jayleen Polston entered into a plea agreement in which she agreed to plead guilty (or no contest) to one count of child abuse and admit a great bodily injury enhancement. The maximum prison term to which she could have been sentenced was five years. Before sentencing, Polston moved to withdraw her plea. The trial court denied her motion and sentenced her to the agreed-upon term.
Polston appeals asserting numerous arguments in an attempt to convince this court she should be allowed to withdraw her plea. As we shall explain, we reject each of these arguments and affirm the judgment.
Appellate counsel has also filed a request to expand her appointment and obtain additional funds in an attempt to establish Polston is factually innocent. We deny this request because Polston pled guilty to the charge, and did so freely, voluntarily, and knowingly.
FACTUAL AND PROCEDURAL SUMMARY
The Events Leading to the Charges
Because Polston entered into a plea agreement at an early stage of the proceedings, the only summary of the events leading to the charges is contained in the probation officer's report. This report summarized the police report that resulted in the charges.
The victim is M.G., the six-month-old son of Polston and Joseph Gonzalez, Jr. M.G. was allegedly injured in a fall which occurred on September 4, 2014. Polston told investigating officers she fell asleep while lying on the bed with M.G. next to her in the motel in which she, Gonzalez, and her children were residing. When Polston woke up, M.G. was on the floor, gasping for air with partially closed eyes.
M.G. was transported by ambulance to the hospital on September 4, 2014. The responding paramedics recognized Polston and M.G. because a few days before this incident, they had transported M.G. to the hospital as a result of a reported fall that occurred in the same manner (the first incident). M.G. was transported to a different hospital after the second incident, but, coincidentally, the same emergency room physician treated M.G. on both occasions. The physician told investigating officers that after the first incident he had diagnosed M.G. with a concussion, and released him to Polston. After the second incident, the physician ordered a CT scan which identified a subdural brain bleed. The physician reported M.G. was in critical condition, and M.G. was transported to Valley Children's Hospital.
The probation report refers to the hospital to which the victim was transported as Madera Children's Hospital. We understand the reference to be to Valley Children's Hospital in Madera, California, as we could not locate any facility by the name of Madera Children's Hospital.
A physician at Valley Children's Hospital diagnosed M.G. with a right subdural hemorrhage and retinal hemorrhaging caused by "an acceleration and decelerative rotational force applied to the victim's head and neck. He said these forces also affect the retina. He said the chronic hemorrhaging described by the radiologic imaging indicates there has been a prior injury to the victim. He said the fall is not related to the injury sustained by the victim and non-accidental trauma is suspected."
The Charges and Plea
The complaint was filed on April 15, 2015, and charged Polston and Gonzalez with two counts of child abuse in violation of Penal Code section 273a, subdivision (a). The first count alleged as an enhancement that both defendants inflicted great bodily injury on M.G. within the meaning of section 12022.7, subdivision (d).
Subsequent references to dates are to dates in 2015.
All statutory references are to the Penal Code.
The preliminary hearing was originally scheduled for July 10, but was continued to August 11 at the request of defense counsel. On August 10, the preliminary hearing was confirmed to be heard on August 11. On August 11, prior to the commencement of the preliminary hearing, the defendants entered into a "package" plea agreement. Polston accepted an offer to plead to one count of child abuse, and admit a section 12022.7, subdivision (a) great bodily injury enhancement. The remaining charges and enhancement were to be dismissed, and the maximum term to which Polston could be sentenced was five years in prison.
Gonzalez accepted an offer to plead guilty (or no contest) to one count of child abuse, for which he would be sentenced to time served and placed on probation for five years. In addition, in a separate pending case, Gonzalez agreed to plead guilty (or no contest) to one count of misdemeanor domestic violence in which Polston was apparently the victim. As a result of this plea he would be placed on five years probation with credit for time served, and a protective order would be issued preventing contact with Polston.
Polston signed a "Felony Advisement of Rights, Waiver and Plea Form" that included the terms of the plea agreement, confirmed she (1) was entering the plea freely and voluntarily, (2) understood the charges, defenses, and possible pleas, and (3) had adequate time to discuss the case with her attorney including the strength of the case, possible defenses, and the consequences of the plea. The form further advised Polston of her constitutional rights, and obtained her waiver of those rights. Finally, Polston confirmed on the form that everything on the form was true and correct.
The attorney statement included in the form confirmed defense counsel had answered all of Polston's questions, discussed with Polston the elements of the crime and possible defenses, and explained to Polston the consequences of entering into the plea.
At the hearing, the trial court confirmed Polston would plead guilty (or no contest) to one count of child abuse and admit an added great bodily injury enhancement (§ 12022.7, subd. (a) instead of subd. (d)), with a maximum sentence of five years in prison. The trial court also confirmed the conviction would be a strike offense. Defense counsel confirmed he had discussed that fact with Polston. The trial court also confirmed Polston would have to serve 85 percent of her sentence in prison.
When asked by the trial court if he had discussed with Polston the fact the conviction would be a strike, defense counsel responded "Thank you, Judge," which we understand to be an affirmative response.
Next the trial court confirmed Polston (and Gonzalez) had reviewed the plea form, initialed it where indicated, confirmed Polston understood and gave up her rights, and that Polston did not have any question about her rights. Defense counsel joined in the waiver of rights.
The trial court also confirmed that Polston understood the charge, had adequate time to speak with her attorney about the elements of the crime and the great bodily injury enhancement, understood the charges against her, and did not need any additional time to discuss the matter with her attorney. Polston confirmed she understood the "case, the charges, possible sentences, [and] anything else." She also confirmed she understood the possible defenses to the charge.
The trial court then accepted Polston's no contest plea and her admission to the great bodily injury enhancement. As part of the admission, the trial court asked Polston if she understood that the great bodily injury enhancement alleged she personally inflicted great bodily injury, and the enhancement would add three years to her sentence. Polston replied she understood.
The trial court referred to this as a Smith hearing, referring to People v. Smith (1993) 6 Cal.4th 684 as apparently the authority for making a motion for new appointed counsel after a plea has been entered. The issue in Smith was what standard should be utilized by the trial court when a defendant makes a motion for new counsel after a plea or jury verdict. The Supreme Court held that "substitute counsel should be appointed when, and only when, necessary under the Marsden standard .... This is true whenever the motion for substitute counsel is made. There is no shifting standard for the trial court to apply, depending upon when the motion is made." (Smith, at p. 696.)
At the sentencing hearing, Polston stated she wished to withdraw her plea. A hearing was held pursuant to People v. Marsden (1970) 2 Cal.3d 118. At the hearing, defense counsel Roger Lampkin asked to be relieved because Polston wanted to withdraw her plea. It appears Lampkin understood Polston's motion would be based on a claim that he provided ineffective assistance. Polston asserted that Lampkin did not explain things to her thoroughly, and she did not realize the conviction would be a strike until the prosecutor so informed the trial court. She then explained that after discussing the matter with her family that night, she changed her mind. She also stated that she only accepted the plea offer because she did not feel she had any options.
Lampkin informed the trial court he did not encourage or discourage Polston from accepting the plea offer. His recollection was that Polston was more interested in receiving the shortest possible sentence in the plea bargaining. Lampkin did not recall if he "emphasized the fact that it was a strike," although that information was stated on the record before Polston entered her plea.
The trial court granted Polston's request and relieved defense counsel for the purposes of permitting newly appointed defense counsel to determine if a motion to withdraw the plea should be made.
These events occurred on September 18. Polston appeared in court for the hearing to appoint new defense counsel, but failed to appear at the next hearing which occurred on September 20. Her bail was revoked and a bench warrant issued. She was arrested sometime before the November 12 hearing at which time defense counsel requested a continuance.
The Motion for a New Trial
Substitute defense counsel filed a motion to withdraw Polston's plea arguing she was unaware she had a meritorious defense to the action as a result of defense counsel's incompetence. Polston was, according to the moving papers, inadequately advised about her case and ignorant of the legal requirements for a conviction. The prosecutor opposed the motion.
An evidentiary hearing was held on the motion at which Polston and Lampkin testified. Lampkin testified he was appointed to represent Polston, and received medical records as well as other records at the July 9 hearing. Additional discovery was also received, apparently after the medical records were provided.
The minute order from the July 9 hearing indicates that the medical records and the Child Protective Services records were ordered released to the parties at the hearing. It appears likely Lampkin received the records sometime after the hearing.
Lampkin recalled reviewing the medical records, but could not recall reviewing the records from Child Protective Services. Lampkin believed he spoke with Polston the morning of the July 9 hearing.
Lampkin testified he spoke with Polston that morning. He also testified he had three other matters on calendar that morning, apparently in an attempt to demonstrate he had little time to speak with Polston.
The matter was resolved on the date scheduled for the preliminary hearing, August 11. Lampkin did not recall speaking with Polston at jail to discuss her case, or discussing her case with her at any location, between the two hearings.
Lampkin did recall speaking with Polston about the facts of the case, although he could not recall the particulars of the discussion. Lampkin could not recall Polston ever indicating she injured M.G.
Lampkin testified he had represented defendants where the allegations involved injury to a baby by allegedly having been shaken by an adult. Lampkin agreed the cases are complex, and involve numerous medical reports. He also agreed an expert witness in the medical field would be required to defend the case. Another individual from Lampkin's office had reviewed the medical records and contacted a potential expert witness. The witness was not immediately available, but Lampkin was not concerned because the trial was several months away. Lampkin was confident the expert could have been available for the trial in the matter. Lampkin did not recall speaking with Polston about retaining an expert because that would have come up during trial preparation. Lampkin did not expect the case to be resolved at the preliminary hearing, so in his mind retaining an expert was not a priority at that time. Lampkin did not recall seeking a second expert witness in the case because "it was a very substantial length of time until the trial. She came in on the day of the prelim and wanted to settle it. That was kind of a surprise. And we discussed it, and we resolved it."
Lampkin denied advising Polston to accept or reject the plea offer. He also denied telling Polston that before a Kern County jury, the case would end in a conviction. "But I probably discussed with her the reasonable probability of a case like that. But it was very premature to give any precise opinion, because it was early in the stage of getting prepared for trial."
Lampkin recalled he filled out the plea form with Polston. When asked whether he advised Polston the charges were a felony and a strike conviction, Lampkin testified "That's what I normally do. I don't have any real recollection, precise recollection of our discussions about that. But I - it didn't - it didn't seem important to her at the time. She had other considerations." Lampkin did not recall if he told Polston that the plea required her to admit she personally inflicted great bodily injury to the child, but he recalled the trial court informed Polston of that fact.
Polston testified she met Lampkin for the first time at the July 9 hearing. At that time, Lampkin told her he wanted to continue the hearing so he could review the file and then he would speak with her at the jail. Polston told Lampkin she was not guilty of harming her child. She asked if she could be released on the electronic monitor. After Lampkin spoke with the prosecutor, he told her that was not possible because they were looking at a nine-year prison term.
Lampkin never visited Polston while she was at the jail.
The next time Polston met with Lampkin was at the next court hearing (August 10). At that hearing, Polston asked Lampkin "if he had gotten the D.A. to go down, at all. And [Lampkin] - I believe he said that no, that the lowest at that point in time was six years. And then we came back the next day." Lampkin also told Polston that M.G. was not injured by a fall, but because he had been shaken. Polston stated she did not harm her child. No other details about the case were discussed, nor did Lampkin discuss retaining an expert witness. Lampkin did not explain to Polston that to be convicted of the charges, the prosecution had to prove that she personally inflicted M.G.'s injuries.
The preliminary hearing was scheduled for the following day. Lampkin did not come to the jail to visit Polston that night. Polston decided to accept the plea offer the morning of the preliminary hearing because Lampkin had explained to her that if the case went to trial she would be exposed to a prison term in excess of nine years if she was convicted. When asked if Gonzalez played a part in her decision, Polston stated that "[e]very time I was in court, I was intimidated by my co-defendant because we have a past history of domestic violence." When asked why she would feel intimidated or pressured by Gonzalez, Polston testified, "For one, before I was even arrested on the charges, his family had already messaged me over Facebook, telling me that I'd better take the charges for him because that he was then, at the time, complying with CPS, and it wouldn't be right to let him go down for that while he was complying with CPS. [¶] And for two, I mean, we had a substantial long history of domestic violence, and I was intimidated by him." Polston also testified Gonzalez's aunt was pressuring her to take the offered plea deal.
Finally, Lampkin did not discuss with Polston the fact she could have an expert witness appointed to assist in her defense. "Mr. Lampkin and I never even got into that part of the conversation. He just kept letting me know that I could be looking at more time if I didn't take the - the five years with a lid was the best that I was going to get."
On cross-examination, Polston admitted she rejected the prosecutor's offer of a six-year prison sentence. She also admitted she decided to accept the plea offer of a five-year lid on a prison sentence. "It was my idea [to accept the offer] after he told me that it was with a lid. I was never aware of a strike or it being a GBI enhancement or anything like that. He just let me know that the five years was the best that I was going to get."
The trial court noted that the circumstances of a "package" plea offer where one defendant receives a more lenient sentence than the other always resulted in the more severely punished defendant feeling pressure to accept the offer regardless of the type of relationship which existed between the two. It also noted the fact Polston was pleading to a crime that would be considered a strike was clearly stated on the record. Polston told the trial court she had no questions about the plea. She also stated at the hearing she knew that she would be required to admit that she inflicted great bodily injury on M.G., and admitted the enhancement shortly thereafter. Considering the entire record, the trial court concluded that Polston entered the plea freely and voluntarily, and therefore denied the motion. The trial court thereafter sentenced Polston in accordance with the plea agreement to a five-year prison term.
DISCUSSION
The issue in this case is whether the trial court erred in denying Polston's motion to withdraw her plea. In an attempt to establish error, Polston attacks the ruling with several arguments. First, she argues defense counsel was ineffective because he failed to investigate possible defenses to the charges, including retaining an expert medical witness. Second, she argues defense counsel was ineffective because he failed to properly advise Polston of the elements of the charges, possible defenses, and the consequences of the plea. Third, Polston argues her plea was not made knowingly, voluntarily, and intelligently. Fourth, Polston argues the trial court abused its discretion by denying the motion to withdraw the plea. Polston's fifth argument asserts the trial court erred when it failed to obtain a factual basis for the plea.
IAC - Failure to Investigate Defenses
The standard of review when questioning whether a defendant received effective representation is well established. "In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance 'fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mickel (2016) 2 Cal.5th 181, 198.)
Polston argues, in essence, that defense counsel was ineffective because he failed to retain a medical expert before allowing Polston to accept the plea offer. Polston has not cited any authority which supports this proposition. Indeed, such a rule would have a significant chilling effect on plea bargaining; the proposition would prevent plea bargaining until defense counsel had completed trial preparation. All attempts to resolve cases through plea bargaining at an early stage of the proceedings would have to be rejected, oftentimes resulting in defendants missing out on favorable dispositions. If such a rule existed, it would defeat the salutary purposes of plea bargaining. (See, e.g., Bordenkircher v. Hayes (1978) 434 U.S. 357, 361-362 [plea bargaining important component of criminal justice system that can benefit all concerned]; People v. Segura (2008) 44 Cal.4th 921, 929 [plea agreements essential to expeditious and fair administration of court and promote speed, economy, and finality of judgments].)
Nonetheless, Polston argues defense counsel failed to inform her an expert witness could be retained to review the medical records and testify in her defense. The evidence supports this assertion. However, as Lampkin explained in his testimony, an expert witness had been consulted, and he anticipated retaining her before trial. Lampkin also explained that since the matter had not yet reached the preliminary hearing stage, the arrangements had not been completed. There is nothing unusual in these circumstances, and they provide no grounds for criticizing Lampkin.
Appellate counsel expends considerable effort in establishing a defense counsel's obligation to investigate the facts and the law applicable to the charges, and to develop a rational trial strategy based on that investigation and analysis. We agree that in representing a defendant at trial defense counsel must meet these requirements. However, this case did not proceed to trial; Polston accepted a plea offer in the early stages of the case.
The cases cited by Polston do not stand for the proposition that before a plea offer can be accepted defense counsel must have completed trial preparation. Indeed, each cited case involved proceedings during trial. (Wiggins v. Smith (2003) 539 U.S. 510 [IAC at penalty phase of capital murder trial]; Williams v. Taylor (2000) 529 U.S. 362 [IAC at penalty phase of capital murder trial]; Strickland v. Washington (1984) 466 U.S. 668 (Strickland) [IAC at penalty phase of capital murder trial]; Duncan v. Ornoski (9th Cir. 2008) 528 F.3d 1222 [IAC at penalty phase of capital murder trial]; Rios v. Rocha (9th Cir. 2002) 299 F.3d 796 [IAC at jury trial]; People v. Doolin (2009) 45 Cal.4th 390 [IAC at capital murder trial]; People v. Ledesma (1987) 43 Cal.3d 171 [IAC at capital murder trial]; In re Hill (2011) 198 Cal.App.4th 1008 (Hill) [IAC at trial] .)
Hill explains the important distinction between the position in which Polston finds herself and the above cases. Hill was convicted after a jury trial of 23 counts of sexual offenses against minors. He argued on appeal that defense counsel was ineffective because she failed to obtain copies of colposcopic photographs from the victim's sexual assault exam, and she failed to obtain a medical expert to assist in preparation for trial. Hill submitted with his petition a declaration from a medical expert which stated the medical report was inconsistent with the victim's description of the molestations, and that the colposcopic photographs would not appear as described in the medical report were the victim's testimony true. (Hill, supra, 198 Cal.App.4th at pp. 1018-1022.) The declaration also found other inconsistencies in the medical report and the victim's testimony. (Ibid.) Based on this declaration, and other evidence, the appellate court found defense counsel was ineffective. (Id. at p. 1023-1027.)
In Hill, the trial of the defendant had been completed. The appellate court had the trial transcript and additional declarations including one from defense counsel admitting there was no tactical reason for failing to obtain the photographs or a medical expert to review the medical reports. The conclusion that trial counsel was ineffective in the face of this evidence was inevitable. In other words, in Hill, the appellate court had ample evidence to review and evaluate before reaching a conclusion about whether defense counsel was competent.
In this case, no trial occurred, there is no trial transcript which we can review to ascertain if defense counsel was competent, and a jury never found Polston guilty. If the matter had proceeded to trial, Lampkin represented he would have retained a medical expert to review the medical records and testify if appropriate. Because Polston chose to accept the plea offer, there is no evidence to review to determine if Lampkin followed through on his representation because none was needed once Polston chose to accept the plea offer.
This is not to say that a defense attorney cannot be ineffective when representing a defendant during plea negotiations. We address Polston's argument on this issue in the following section. We conclude, however, a defense attorney is not ineffective simply because he or she has not completed trial preparation before his or her client decides to accept a plea agreement.
This case does not present the issue of whether defense counsel withheld relevant information from the defendant during plea negotiations, an issue on which we express no opinion.
IAC - Failure to Properly Advise Polston
Polston appears to rely on two asserted failures of defense counsel to argue he failed to properly advise her regarding her plea. First, she asserts that defense counsel did not inform her the plea agreement required her to admit she personally inflicted great bodily injury on M.G. Second, she asserts defense counsel did not inform her that her plea was a strike within the meaning of section 667, subdivisions (b)-(i), which would require her to serve 85 percent of the sentence in prison.
"The pleading—and plea bargaining—stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions. [Citations.] It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. [Citations.] In [Hill v. Lockhart (1985) 474 U.S. 52] the United States Supreme Court applied the criteria for assessing ineffective assistance of counsel, set forth in Strickland v. Washington (1984) 466 U.S. 668, to a claim of incompetent advice as to the decision whether to plead guilty. The court held that in order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz (1992) 2 Cal.4th 924, 933-934 (Alvernaz).)
In this context, defense counsel is required to communicate to the defendant all proposals made by the prosecutor, and to ensure the defendant makes an informed choice of either accepting or rejecting the plea offer. (Alvernaz, supra, 2 Cal.4th at p. 935.) "To assist us in deciding whether the first of the two prongs of [the Strickland] test has been established, we turn to the State Bar Rules of Professional Conduct and the American Bar Association's Standards for Criminal Justice, cited ante, which provide guidelines for determining the prevailing norms of practice relating to advising a defendant as to the decision whether to reject an offered plea bargain and proceed to trial. Under these guidelines, defense counsel must communicate accurately to a defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it, including the maximum and minimum sentences which may be imposed in the event of a conviction. [Citations.] We caution that a defense attorney's simple misjudgment as to the strength of the prosecution's case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel's judgment, will not, without more, give rise to a claim of ineffective assistance of counsel. [Citations.] Such claim 'depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.' " (Alvernaz, at p. 937, fn. omitted.)
As in Alvernaz, we need not decide whether defense counsel's representation was deficient, because even if his performance was deficient, Polston cannot establish any prejudice. Polston argues that had defense counsel provided her with the missing advice, she would not have accepted the plea offer. The record belies this argument because prior to entering her plea, Polston was told (1) the conviction would be a strike, (2) she would have to serve 85 percent of her sentence, and (3) she would be admitting she personally inflicted great bodily injury on M.G. Polston told the trial court she understood the charge, and had adequate time to discuss the matter with her attorney, including the great bodily injury enhancement. Finally, Polston admitted she "personally inflicted great bodily injury which would add three years" to her sentence.
These facts establish that before Polston entered her plea she was fully informed that her conviction would constitute a strike, she would have to serve 85 percent of her sentence in prison, and that the plea agreement required her to admit she personally inflicted great bodily injury on M.G. Had Polston been unwilling to accept these terms, she could have, and would have, rejected the plea offer before entering her plea. We therefore reject Polston's assertion that her plea was the result of defense counsel's failure to fully inform her of the consequences of her plea.
Plea was not knowing, voluntary, and intelligent
Although Polston argues her plea was not knowing and voluntary, she actually asserts her plea was taken in violation of her right to due process as established in Boykin v. Alabama (1969) 395 U.S. 238 (Boykin). In Boykin, the Supreme Court held for a plea to be knowing and voluntary, the trial court must determine the defendant understands the plea and its consequences. (Id. at p. 243-244.) In doing so, the trial court must also obtain a waiver from the defendant of his or her privilege against self-incrimination, the right to a jury trial, and the right to confront the witnesses against him or her. (Id. at p. 243.) The issue was also addressed by the California Supreme Court in In re Tahl (1969) 1 Cal.3d 122, wherein the court held that before a trial court may accept a plea to an offense, the defendant must expressly waive on the record the right to a jury trial, the right to confront witnesses against him or her, and the right against self-incrimination. (Id. at pp. 132-133.) In addition, the Supreme Court held the trial court is required to ascertain whether the plea "is knowingly made without threat or inducement." (Id. at p. 133.) The Supreme Court also stated "it is salutary for the court at the same time to explain the full import of his guilty plea to the accused." (Ibid.)
Polston acknowledges she signed and initialed a "Felony Advisement of Rights, Waiver and Plea Form" before entering her plea. In this form, Polston confirmed (by placing her initials next to various statements) she was entering the plea freely and voluntarily, and she understood and waived her right to trial, her right to testify, her right to present a defense, her right to confront and cross-examine the witnesses against her, and her privilege against self-incrimination. At the hearing at which Polston entered her plea, Polston confirmed to the trial court that she initialed and signed the form, she understood her rights, she gave up those rights, and that she did not have any questions about those rights.
Polston argues, however, the fact she signed the form did not meet the requirements of Boykin. She asserts the trial court was required to obtain an oral waiver of her privilege against self-incrimination, the right to a jury trial, and the right to confront the witnesses against her. No authority is cited for this proposition. The California Supreme Court has held that a waiver form is a valid method of obtaining a defendant's waiver of rights "[s]o long as the waiver form contains sufficient information, and both the defendant and counsel attest to its valid execution." (In re Ibarra (1983) 34 Cal.3d 277, 285-286 (Ibarra), overruled on other grounds by People v. Howard (1992) 1 Cal.4th 1132, 1175-1178.) Polston does not argue the plea form was deficient in any manner. Accordingly, we reject this argument.
Polston also argues her plea was not voluntary because it was a "package deal" requiring both her and Gonzalez to accept the plea offer or it would be withdrawn as to both. When a defendant is fully informed of the consequences of entering into a plea, it is voluntary unless it is induced by threats, promises to discontinue improper harassment, misrepresentation, or improper promises. (Brady v. U.S. (1970) 397 U.S. 742, 755.) Polston acknowledges that package plea offers are not per se coercive, but may be found to be coercive only if an examination of the totality of the circumstances establishes the defendant was forced to accept the plea. (Ibarra, supra, 34 Cal.3d at pp. 286-287.) The danger is that extraneous factors not related to the case may influence the decision to accept the plea offer. (Id. at p. 287.)
In Ibarra, the Supreme Court identified various factors that must be considered when determining whether acceptance of a package plea offer was coercive. The first factor is whether the inducement of the plea is proper. (Ibarra, supra, 34 Cal.3d at p. 288.) Here, the inducement for the plea, a reduced sentence in exchange for the plea, is clearly proper. There is no evidence the prosecutor misrepresented any facts to the defendant.
Polston asserts, in essence, she accepted the plea to obtain a more lenient sentence for Gonzalez. She points out Gonzalez did not admit a great bodily injury enhancement, and he was placed on probation. She also asserts the fact the domestic violence case was resolved as part of the plea agreement was improper, although there is no authority cited for this claim. There is no evidence that Polston accepted the plea offer to ensure Gonzalez obtained a more lenient sentence. While the plea offer certainly did result in a more lenient sentence for Gonzalez, the discrepancy can be explained by the district attorney's assertion that the evidence strongly suggested Polston was the perpetrator, not Gonzalez.
Second, the factual basis for the plea must be considered. (Ibarra, supra, 34 Cal.3d at p. 289.) Here, as we explain in detail infra, the probation report provides ample factual support for the plea. M.G. sustained injuries while in Polston's care, that according to a treating physician, were consistent with intentional infliction by shaking him.
Polston argues that at the time the trial court accepted her plea, it did not inquire as to the factual basis for the plea. It is unclear, however, how this failure caused Polston's plea to be coerced, nor does Polston's brief in this court provide any indication how the alleged coercion occurred. Therefore, we reject Polston's argument.
Third, the nature and degree of coerciveness must be examined. (Ibarra, supra, 34 Cal.3d at p. 289.) The Supreme Court noted that psychological pressures may cause a plea to be involuntary if the co-defendant is a close friend or family member. Similarly, a defendant may feel coerced to accept a plea offer if he or she is being threatened. This is the factor on which Polston primarily relies. She alleges psychological and physical coercion. The record, however, provides scant support for the argument. Polston testified she had received a message through her computer from one of Gonzalez's family members urging her to accept the blame for M.G.'s injuries since Gonzalez was "complying with CPS." However, this message was relayed to Polston before she was charged with any crime, and there is no evidence it was ever repeated. A single message provided long before the plea was entered is not the type of psychological coercion which would render a plea agreement coercive.
Polston also asserted she was being pressured by Gonzalez's aunt to accept the plea offer. It is unclear what was actually said, and how such "pressure" was being applied since Polston was incarcerated at the time. The lack of evidence about this claim renders it meaningless.
Polston also testified she felt intimidated by Gonzalez because of a long history of domestic violence. It appears from the record that as part of the plea agreement, Gonzalez pled guilty to a misdemeanor charge of domestic violence wherein Polston was the victim. However, Polston did not testify that Gonzalez threatened her or intimidated her for the specific purpose of forcing her to accept the plea offer. This factor, therefore, is entitled to little weight. We also note that Polston never mentioned psychological or physical intimidation at the Marsden hearing when she explained to the trial court why she wanted to withdraw her plea.
The Supreme Court also observed in Ibarra that if a defendant's motivation for accepting the plea offer was the realization that a conviction was likely and would result in a longer prison sentence, then the defendant was not coerced. (Ibarra, supra, 34 Cal.3d at pp. 289-290.) In this case, according to Lampkin's testimony at the Marsden hearing, Polston's motivation was to obtain the shortest possible sentence. We recognize that after entering her plea, Polston has proclaimed her innocence. Nonetheless, Lampkin's testimony about Polston's motivation does not suggest Polston's acceptance of the plea offer was coerced.
Abuse of Discretion
Polston next argues the trial court abused its discretion when it denied her motion to withdraw her plea.
"Section 1018 provides, in part: '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.... This section shall be liberally construed to effect these objects and to promote justice.' The defendant has the burden to show, by clear and convincing evidence, that there is good cause for withdrawal of his or her guilty plea. [Citations.] 'A plea may not be withdrawn simply because the defendant has changed his [or her] mind.' [Citation.] The decision to grant or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court. [Citations.] 'A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.' [Citations.] 'Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them.' [Citation.]
"To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress. [Citation.] The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake." (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.)
Polston argues she established good cause to withdraw her plea because she did not enter her plea voluntarily, knowingly, and intelligently. She also argues she was coerced into entering her plea because of the domestic violence and coercion from Gonzalez's family. She also repeats her argument that original defense counsel was ineffective. We have already rejected each of these arguments. She also asserts she had a viable defense, specifically her innocence. However, Polston must have known that factual innocence was a defense to the charges. Accordingly, the trial court acted well within its discretion in denying Polston's motion to withdraw her plea.
Factual Basis for the Plea
Section 1192.5 requires a trial court, when taking a plea, to "satisfy itself ... that there is a factual basis for the plea." " ' "The purpose of the requirement," ' we have said, ' "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.] In People v. Holmes (2004) 32 Cal.4th 432 (Holmes), we held the trial court can satisfy this requirement by inquiring of defense counsel regarding the factual basis of the plea, in which case, we said, 'it should request that defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement.' " (People v. Palmer (2013) 58 Cal.4th 110, 112 (Palmer).)
In this case, the trial court did not orally inquire of defense counsel if he would stipulate to a factual basis for the plea. Defense counsel did sign the plea form beneath the section entitled "Attorney's Statement." This statement included a stipulation by defense counsel that there was a factual basis for the plea and the enhancements "based upon the offense reports contained within the court file, or the testimony introduced at the preliminary hearing, and any results of laboratory analysis conducted on any suspected controlled substances seized in this case." Unfortunately, there are no offense reports in the record, a preliminary hearing did not occur in this case, and no substances were seized by law enforcement which may have been relevant to the charges.
Polston complains that under the circumstances, the trial court failed to comply with section 1192.5. Polston cites People v. Willard (2007) 154 Cal.App.4th 1329 (Willard), to support her claim that the attorney statement in the plea form did not satisfy the requirements of section 1192.5. However, we begin our analysis of section 1192.5 with Holmes, supra, 32 Cal.4th 432, which addressed the requirement for a factual basis for a conditional plea (i.e., a plea conditioned upon a particular disposition) as required by section 1192.5.
Holmes was charged with assault with intent to commit rape and sexual battery. The first count of the complaint alleged Holmes violated section 220 when, " 'on or about March 24, 2000, in the County of Riverside, State of California, he did willfully and unlawfully assault Sandra R., with the intent to commit rape.' " (Holmes, supra, 32 Cal.4th at p. 436.) Count two alleged that Holmes " 'willfully and unlawfully direct and indirectly touch an intimate part of another person, to wit: Sandra R., for the purpose of sexual arousal, sexual gratification, and sexual abuse, against the will of said person.' " (Ibid.) There were no other facts in the record regarding the underlying offense. When accepting his plea, the trial court asked Holmes if he did what he was charged with in the complaint. The plea form included a statement initialed by Holmes that there was a factual basis for the plea. (Id. at p. 437.)
The Supreme Court concluded "that in order for a court to accept a conditional plea, it must garner information regarding the factual basis for the plea from either defendant or defense counsel to comply with section 1192.5. If the trial court inquires of the defendant regarding the factual basis, the court may develop the factual basis for the plea on the record through its own examination by having the defendant describe the conduct that gave rise to the charge [citation], or question the defendant regarding the factual basis described in the complaint or written plea agreement. [Citations.] If the trial court inquires of defense counsel regarding the factual basis, it should request that defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.] Under either approach, a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate." (Holmes, supra, 32 Cal.4th at p. 436.) However, the trial court is required to establish only a prima facie factual basis for the charges. (Id. at p. 441.) The trial court does not have to interrogate the defendant about possible defenses to the charged crime, nor does it have to be convinced of the defendant's guilt. (Ibid.)
The Supreme Court held the complaint contained an adequate factual basis for the plea, and affirmed the judgment. (Holmes, supra, 32 Cal.4th at pp. 436, 443.) "The trial court did not conduct an extensive inquiry with defendant to develop the factual basis on the record, nor did it request that defense counsel stipulate to a particular document that provides an adequate factual basis. However, count 1 of the complaint to which the trial court referred contained the charged offense, the names of defendant and the victim, the date and location of the charged offense, and a brief description of the factual basis for the charged offense. Such a complaint provides a sufficiently precise factual account of the charged offense of assault with intent to commit rape. In short, the trial court's questioning of defendant about the factual basis in the complaint was adequate to establish that defendant was cognizant that his acts did constitute the offense with which he was charged, notwithstanding defendant's letters to the court contesting his guilt. [Citation.] This is sufficient under the section 1192.5 standard. [Citations.] Thus, the trial court did not err." (Id. at p. 443, fn. omitted.)
As relevant here, the Supreme Court observed that it was not addressing the issue of whether a bare stipulation by defense counsel provided an adequate factual basis for a plea, but stated the better approach was that a stipulation by defense counsel be accompanied by a reference to a police report, probation report, preliminary hearing transcript, or reference to grand jury testimony. (Holmes, supra, 32 Cal.4th at p. 441, fn. 8.)
Willard was decided after Holmes, but before Palmer. Therefore, the question of whether a stipulation by defense counsel to a factual basis for a plea without reference to a specific document had not yet been addressed by the Supreme Court. Willard accepted a plea offer and entered his plea to one count of violating section 288, subdivision (a) with a sentence of eight years in prison to be imposed. The trial court obtained from defense counsel and the prosecutor a stipulation that a factual basis for the plea existed. The plea form signed by Willard also contained a stipulation that a factual basis for the plea existed and the trial court could refer to probation reports, police reports or other sources to establish the factual basis. The trial court found a factual basis for the plea existed. (Willard, supra, 154 Cal.App.4th at p. 1332.)
Willard argued on appeal the trial court did not comply with the requirements of section 1192.5. The appellate court recognized Holmes had not addressed the issue of whether a bare stipulation without reference to a specific document would comply with the requirements of section 1192.5. It also rejected any reliance on the stipulation in the plea form because the record did not contain a probation report, preliminary hearing transcript, police report, presentence report, or any other document which provided the facts of the charged offense. (Willard, supra, 154 Cal.App.4th at p. 1334.) The only document which provided any possible factual basis for the plea was the complaint. However, the appellate court rejected reliance on this document because, while it included the date of the offense and the names of the defendant and victim, it set forth the elements of the offense in the language of the statute but did not provide any facts related to the offense. (Id. at p. 1335.) Because the record did not contain any documents to provide a factual basis for the plea, the appellate court reversed the judgment. (Ibid.)
Palmer addressed the issue left open by Holmes, whether a bare stipulation by defense counsel could meet the requirements of section 1192.5. Palmer accepted a plea offer, and defense counsel orally stipulated to a factual basis for the plea without any reference to a particular document. The plea was taken before the preliminary hearing. The Supreme Court addressed the issue of whether a stipulation to a factual basis for a plea without reference to any document describing the facts of the offense could satisfy the requirements of section 1192.5. The Supreme Court held that such a stipulation could meet the statutory requirements.
"Section 1192.5 requires the trial court to make an inquiry to satisfy itself that there is a factual basis for a conditional plea of guilty or no contest. The purpose of the factual basis requirement is to help ensure that the constitutional standards of voluntariness and intelligence are met. [Citation.] In Holmes we observed that, although the statute requires the ' "inquiry to be made of defendant" (§ 1192.5),' a 'stipulation by counsel to the plea's factual basis is consistent with the legislative purpose of the statute. While defendant may not be in a position to recognize whether his acts do or do not " 'constitute the offense with which he is charged' " [citation], defense counsel is well suited to make such a determination.' [Citation.] We said the 'better approach' in this circumstance is for counsel's stipulation to include reference to a particular document that provides an adequate factual basis, but we did not hold such reference is required. [Citation.] We now make clear that, while inclusion of such reference in the stipulation is desirable as a means of eliminating any uncertainty regarding the existence of a factual basis, the trial 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 recite facts or refer to a document in the record where, as here, 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.
"This rule is consistent with defense counsel's broad authority to stipulate to factual and procedural matters on his client's behalf. Even at trial, counsel may stipulate to the existence or nonexistence of essential facts. [Citation.] Counsel may also stipulate to the admissibility of evidence or to narrow the range of litigable issues. [Citations.] Stipulations obviate the need for proof and are independently sufficient to resolve the matter at issue in the stipulation. [Citation.]
' [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.] We see several reasons to accord trial courts flexibility in establishing a factual basis for the plea, without undermining the primary goal of assuring that the defendant entered the plea voluntarily and intelligently. A defendant may be factually guilty but still hesitate to stipulate to the truth of an entire document like a police report that contains
details he or she either disputes or simply does not want to admit. If there is no stipulated sentence, counsel may fear the police reports will demonstrate the existence of aggravating factors that could cause the court to impose a higher sentence, or to reject the plea bargain altogether. In sensitive cases involving intrafamilial violence and abuse, a defendant may wish to avoid having confidential information about the victim become part of the public record in the case. Although, as defendant notes, a factual basis does not require recitation of detailed and damaging facts concerning the crime, and counsel may place on the record only facts that support a prima facie case [citation], a rule limiting trial courts' discretion to accept conditional pleas predicated on stipulations by counsel would raise potential concerns for the defense function. In particular, defense counsel may advise acceptance of a plea agreement based in part on admissions the client has made or on other defense investigation, and may rely on such admissions or investigation in stipulating to the factual basis for a plea. We will not read into section 1192.5 a requirement that counsel explicitly refer to those privileged sources as the basis for the stipulation.
"Here, defense counsel and the prosecutor, both officers of the court, stipulated to a factual basis for defendant's plea. Defendant affirmed during voir dire that he had discussed the elements of the crime with his counsel, and that he was satisfied with counsel's advice. At no time did he protest his factual innocence. On this record, the stipulation satisfied the requirements of section 1192.5, and the trial court acted within its discretion in accepting defendant's plea." (Palmer, supra, 58 Cal.4th at pp. 118-119.)
While Palmer is similar to this case, it is not identical. The trial court did not make an oral inquiry of defense counsel to determine whether he agreed to stipulate to a factual basis for the plea, but did obtain a written stipulation. The written stipulation was part of a form, and referred to documents not contained in the record. The written stipulation did not include the report of the probation officer or a presentence report as a document on which the trial court could rely to find a factual basis for the plea. It is clear the written stipulation was created in an attempt to cover many possible situations. It is equally clear it is not an ideal method to comply with the requirements of section 1192.5. Moreover, the prosecutor did not stipulate to a factual basis for the plea, and the trial court did not expressly find a factual basis for the plea existed, although, as discussed infra, the police report provided ample facts to support the plea. Finally, we observe that when moving to withdraw her plea, but not before, Polston asserted she was factually innocent.
Like Palmer, here the trial court did make an inquiry of Polston about the plea form. The trial court confirmed Polston (1) had reviewed the plea form, (2) had initialed various locations on the form where indicated, (3) understood her rights, (4) did not have any questions about her rights, (5) gave up her rights, (6) understood the charge, (7) had enough time to speak with defense counsel about the elements of the crime and great bodily injury enhancement, (8) understood the charges against her, (9) did not need additional time to speak with her attorney, (10) understood the case against her, the charges against her, and the possible sentence, and (11) understood the possible defenses to the charges. The trial court also informed Polston she would be entering a plea to felony child abuse which carried a maximum sentence of nine years. The trial court also confirmed with defense counsel that he joined in Polston's waiver of rights.
We conclude the trial court's failure to address the question of a factual basis for the plea violated the requirements of section 1192.5. It made no inquiry of defense counsel or defendant. Indeed, the reporter's transcript of the proceedings makes no reference to a factual basis for the plea. The stipulation signed by defense counsel is a standard form and does not reference any document that is in the record. In other words, the record as it existed at the time of the plea contains no facts on which the trial court could have found a factual basis for the plea, other than the complaint. However, like in Willard, the complaint does not contain any facts, but merely includes the elements of the crime as stated in the relevant statute, section 273a, subdivision (a). The failure of the trial court to obtain a factual basis for the plea is an abuse of discretion.
However, reversal is not required because Polston cannot establish prejudice. "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.) Here, as stated above, the report of the probation officer provides the factual support for the plea. Polston stated she fell asleep while lying on the bed with M.G. next to her. When Polston woke up, M.G. was on the floor gasping for air with partially closed eyes. Responding paramedics reported a few days before they had transported M.G. to the hospital as a result of a fall that allegedly occurred in the same manner. A CT scan located a subdural brain bleed and doctors reported M.G. was in critical condition. M.G. was transported to Valley Children's Hospital, where a physician diagnosed a right subdural hemorrhage and retinal hemorrhaging caused by "an acceleration and decelerative rotational force applied to the victim's head and neck," i.e., M.G. was shaken to such an extent the serious injury was inflicted. The chronic hemorrhaging described by the radiologic imaging indicated there had been a prior injury to M.G. The physician opined "the fall is not related to the injury sustained by the victim and the trauma was not caused by an accident."
This report establishes a factual basis for the plea. It describes, in essence, shaken baby syndrome caused by an intentional act. Since Polston admitted M.G. was in her custody at all relevant times, she cannot establish she suffered any prejudice by the trial court's failure to obtain a factual basis for the plea.
DISPOSITION
The judgment is affirmed. Accordingly, appellate counsel's request for additional funding to retain an expert witness in an attempt to establish Polston's factual innocence, and to expand her appointment, is denied.