Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Ct. No. F09902680 Denise Lee Whitehead, Judge.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Defendant and Respondent.
OPINION
Before Kane, Acting P.J., Poochigian, J. and Detjen, J.
This is an appeal from a judgment entered after a plea of no contest to a felony charge of possession of methamphetamine for sale. We conclude any possible error was not prejudicial and, therefore, affirm the judgment.
FACTS AND PROCEDURAL HISTORY
A police informant contacted defendant and appellant, Stacey Adam Sango, on May 4, 2009, seeking two ounces of methamphetamine. Defendant made several telephone calls but eventually told the informant he could supply only one-half ounce of the drug. A short time later, Anthony Ybarra arrived. Ybarra showed the informant a baggie containing about one-half ounce of crystal methamphetamine. The police, monitoring the transaction by means of a radio concealed on the informant, raided the premises. Ybarra ran, discarding the methamphetamine. Defendant was arrested. After his arrest, defendant stated only: “I don’t know anything about it.” Angelina Segura told the officers that she was the defendant’s girlfriend. She explained that defendant and the informant were negotiating a “dope deal” and defendant would not let her be involved in it because he did not want her to get in trouble.
Defendant was charged in a felony complaint with one count of sale of methamphetamine (count one, Health & Saf. Code, § 11379, subd. (a)) and one count of possession of methamphetamine for sale (count four, Health & Saf. Code, § 11378). The complaint also alleged two prior strikes (see Pen. Code, § 667, subds. (b)-(i)) and four prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant pleaded no contest to count four and admitted the strikes and the prison term allegations. Pursuant to an indicated sentence, the court imposed the low term of 16 months on the possession count, plus one year for a prior prison term, for a total sentence of two years and four months. The strike allegations and the remaining prison term allegations were stricken pursuant to Penal Code section 1385.
Other counts involved other defendants arrested at the scene. Those counts are not involved in the present appeal.
Defendant filed a timely notice of appeal. His request for certificate of probable cause complained that his attorney failed to advise him of the consequences of admitting his prior prison term, a claim he does not reprise on appeal.
DISCUSSION
Defendant contends, in essence, that the trial court erred by finding a factual basis for defendant’s plea of no contest when the court did not cause the police report upon which such conclusion was based to be included in the record. He relies on People v. Holmes (2004) 32 Cal.4th 432, 442-443. In Holmes, the court held that Penal Code section 1192.5 requires the court, at the time of accepting a bargained-for plea by a defendant, to determine that there is a factual basis for the plea. (Holmes, supra, 32 Cal.4th at p. 432.) If the court does not conduct this inquiry by means of questioning the defendant about the factual basis for the plea, the court may instead base its conclusion on a document such as a police report or probation officer’s report. (Id. at p. 441, fn. 8.) Subsequently, the court in People v. Willard (2007) 154 Cal.App.4th 1329, 1335, expanded this requirement to hold that the report not only be referenced by the court but that it be included in the record.
Here, the court requested and received a stipulation by defense counsel that “the police reports provide a factual basis and may be considered pursuant to People versus West.” However, the police report was not made a part of the record.
Even if we assume that failure to include the police report in the record constituted error, the error in the present case was harmless: “A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea.” (People v. Holmes, supra, 32 Cal.4th at p. 443.) Here, the content of the police report is recited in great detail in the probation officer’s report, which is included in the record on appeal.
Defendant contends the probation officer’s report is inadequate to establish the factual basis for his plea, however, because the report does not establish that he ever had actual or constructive possession of the drug-the probation report indicates the drug remained in the possession of Ybarra until the latter discarded it as the police chased him. In determining whether there is a sufficient factual basis to support a plea of no contest, “we are not looking for evidence sufficient to support a conviction in a trial after a not guilty plea. Instead, we are seeking to determine whether the reports contain sufficient information upon which the trial court could conclude there was a prima facie factual basis for the charges.” (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1579-1580.) “It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime ….” (People v. Holmes, supra, 32 Cal.4th at p. 441.)
In People v. White (1958) 50 Cal.2d 428, 431, the court held that there was sufficient evidence of constructive possession where the defendant gave his roommate money, with instructions to use it to buy heroin. The court held that the roommate, having made the purchase, held the heroin as defendant’s agent. The defendant “had constructive possession as soon as the narcotic was acquired for him, and it is immaterial whether he had personal knowledge of the presence of the narcotic in the apartment.” (Ibid.) Here, the situation is reversed, but the same principle applies. It is readily inferable from the police report (as recounted in the probation report) that Ybarra came to defendant’s house at defendant’s request to supply methamphetamine to the informant on defendant’s behalf. Defendant may have been able to show that Ybarra was not acting as defendant’s agent in delivering the drug or otherwise to negate the inference of constructive possession. But defendant did not choose to do so, electing instead to plead no contest to the charge of possession for sale. The facts before the trial court were sufficient to establish prima facie that defendant was the seller and that Ybarra brought the drugs to the scene on defendant’s behalf.
DISPOSITION
The judgment is affirmed.