Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB618751
Mihara, Acting P.J.
Defendant Michael Anthony Ybarra appeals from a judgment of conviction entered after he pleaded no contest to second degree burglary (Pen. Code, §§ 459/460), petty theft with a prior conviction (Pen. Code, § 666), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). Defendant also admitted that he had suffered six prior strike convictions and had served three prior prison terms (Pen. Code, § 667.5). The trial court sentenced defendant to a term of 25 years to life. On appeal, defendant contends that the trial court’s inducement that it was “inclined to grant” his Romero motion in exchange for his no contest pleas, coupled with its incomplete and misleading statements regarding the scope of its discretion, rendered his pleas invalid. We find no error and affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
I. Statement of Facts
A. The Underlying Offense
On January 22, 2006, defendant stole two pairs of pants from a Sears store. As defendant drove away, his license plate was recorded on the store video. Shortly thereafter, a police officer stopped defendant, and he admitted that he had recently left the Sears store. The officer then opened the door of defendant’s vehicle and instructed him to exit. Defendant accelerated forward, and the officer tried to grab him through the open door. As defendant closed the door, the officer’s arm was momentarily caught in the doorframe. Defendant left. The police arrested defendant several days later at a Motel 6.
B. The Prior Strike Convictions
Prior Strikes One - Three (Robbery - Pen. Code, § 211)
On November 5, 1993, defendant went to a Bank of the West and handed a teller a note demanding money. Claiming that he had a gun, defendant obtained $1,503.
On November 12, 1993, defendant entered a Wells Fargo Bank, claimed he had a gun, and demanded money. He obtained about $700. On the same day, defendant went to a Bank of Santa Clara and again demanded money. He obtained $3,482.
Prior Strike Four (Assault with a Firearm - Pen. Code, § 245, subd. (b))
There was no evidence describing the facts of defendant’s fourth prior strike.
Prior Strike Five (Assault with a Firearm - Pen. Code, § 245, subd. (b))
On February 24, 1981, a police officer was attempting to question defendant and three others. As they fled in a vehicle, defendant leaned out the window and fired two shots that shattered the officer’s windshield.
Prior Strike Six (Assault of a Peace Officer with Force Likely to Produce Great Bodily Injury - Pen. Code, § 245, subd. (c))
On March 16, 1979, police officers watched defendant strike two vehicles without stopping. The officers pursued him and he eventually hit a tree. One of the officers drew his weapon and ordered defendant out of the vehicle. However, defendant put his car in reverse, struck another car, and then drove forward. Though an officer fired six shots, defendant continued to accelerate. The officer got out of the way and defendant hit the patrol car, missing the officer by inches. Defendant then fled on foot.
II. Discussion
A. Background
On September 21, 2006, the change of plea hearing was held. The trial court stated that there was a resolution of the case, that is, that defendant would be entering pleas to the complaint, and that the prosecutor would not be dismissing any counts or striking any allegations. The trial court then ascertained that defendant understood that he faced a maximum possible sentence of 28 years to life, but that he had “a right to have a hearing pursuant to the sentencing processes of the court under the Romero case where he [could] apply to the court for the court to exercise its discretion to strike one or more of the so-called strike prior convictions which would make him eligible for a lesser term.” The trial court also stated the following: “Now, you understand, I will be frank with you, I have indicated that in the court’s opinion it would be inclined to grant a Romero motion, but I am not promising that I will grant a Romero motion. We’re going to have a full process here which is required by law. [¶] That means that first you will be interviewed by the probation department. They will talk to you about the offense itself, about your family circumstances, about your life history, and any other involved or interested parties. [¶] They’ll then make a sentencing recommendation. Your attorney then will be making a formal motion to the court to exercise its discretion and then we go through another process where he writes a motion pointing out all the basically mitigating factors that would argue toward the court’s use of its discretion. [¶] The D.A. would be filing a counter proposal, stating all the reasons why the D.A. does not feel that the court should exercise its discretion, and it would be up to me to use the legal principles laid down by the Supreme Court and try to apply them to the facts of this case to determine if it is proper to exercise discretion of this type in this particular case, so it is kind of an involved process with no promises absolute.” Defendant indicated that he understood the trial court’s explanation.
During the colloquy with defendant, the following occurred: “THE COURT: Has anybody made any other promises to you about the outcome of this case other than the court’s promise that it will objectively consider your motion to strike the strike priors under Romero and sentence accordingly? [¶] THE DEFENDANT: Was there any under the table promises, in other words? No, there was not. [¶ . . . [¶] THE COURT: . . . So you understand that we’re going to continue the matter over then after we take your plea. We’re going to have a full presentence investigation report and full Romero hearings and motions and papers filed and that sort of thing. [¶] Do you understand that? [¶] THE DEFENDANT: Yes, sir.” Defendant then entered no contest pleas to the charged offenses.
On July 19, 2007, the trial court denied the Romero motion and sentenced defendant to a term of 25 years to life.
B. Analysis
When a defendant enters a guilty plea, he waives his privilege against self-incrimination, his right to trial by jury, and his right to confront the witnesses against him. (McCarthy v. U.S. (1969) 394 U.S. 459, 466.) Thus, the due process clause requires that a defendant’s plea must be voluntary and knowing. (Ibid.) As our Supreme Court has stated, “‘[a] court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.’” (In re Lewallen (1979) 23 Cal.3d 274, 278-279, quoting People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276.)
A plea of no contest has the same legal effect as a guilty plea. (People v. Mazurette (2001) 24 Cal.4th 789, 794, citing Penal Code section 1016.)
Relying on People v. Collins (2001) 26 Cal.4th 297 (Collins), defendant argues that the trial court’s statement that “it would be inclined to grant a Romero motion” improperly induced him to enter his no contest plea. Though he acknowledges that the trial court also stated that it was “not promising that [it would] grant a Romero motion,” defendant asserts “the entire colloquy left the unmistakable impression upon [him] that this particular judge was likely to do so if he pled guilty.”
In Collins, the defendant indicated on the day jury selection was scheduled to begin that he wanted to waive jury trial. (Collins, supra, 26 Cal.4th at p. 302.) The trial court explained that the defendant had a right to trial by jury. (Ibid.) The trial court then asked the defendant whether he understood that it was not “‘promising [him] anything just to get [him] to waive jury.’” (Ibid., original italics.) The defendant responded: “‘I was told that it would-that it was some reassurance or some type of benefit.’” (Ibid., original italics.) The trial court stated that “‘there might well be a benefit in it. Just by having waived jury, that has some effect on the court. Do you understand that? By not taking two weeks’ time to try the case, but rather giving-just having it in front of a judge alone.’” (Ibid., original italics.) The trial court continued, “‘I didn’t specify and I’m not specifying that there’s any particular benefit, but that by waiving jury, you are getting some benefit, but I can’t tell you what that is because I don’t know yet.’” (Ibid., original italics.) The trial court also asked the defendant whether anyone had “‘had made any threats or promises to [him] to get [him] to waive jury?’” (Id. at p. 303.) After the defendant replied in the negative, the trial court found that the waiver of his right to a jury trial was “‘free, knowing and intelligent.’” (Ibid.)
The Collins court agreed with the defendant’s claim that the trial court improperly induced his jury trial waiver by stating that he would receive “‘some benefit’” from the waiver. (Collins, supra, 26 Cal.4th at p. 304.) The court found that by “announcing its intention to bestow some form of benefit in exchange for defendant’s waiver of that fundamental constitutional right, [the trial court] acted in a manner that was at odds with its judicial obligation to remain neutral and detached in evaluating the voluntariness of the waiver. [¶] . . . The court made these representations and offers to defendant prior to determining that his waiver of the right to jury trial was knowing, intelligent, and voluntary. The form of the trial court’s negotiation with defendant presented a ‘substantial danger of unintentional coercion.’ [Citation.] [¶] In addition, the objective of the trial court’s comments was to obtain defendant’s waiver of a fundamental constitutional right that, by itself (when defendant elects to go to trial) is not subject to negotiation by the court. In effect, the trial court offered to reward defendant for refraining from the exercise of a constitutional right. [Citations.] . . . The inducement offered by the trial court to defendant, to persuade him to waive his fundamental right to a jury trial, violated defendant’s right to due process of law.” (Id. at p. 309.)
The present case is factually distinguishable from Collins. In Collins, the trial court stated that the defendant would receive “some benefit” if he pleaded guilty. Here, the trial court did not offer to reward defendant if he entered a guilty or no contest plea to the charges. Instead, the trial court stated that it was “inclined to grant a Romero motion,” but it was “not promising” that it would do so. By then outlining the process related to a Romero motion, the trial court clearly indicated to defendant that he would not receive any benefit in exchange for the waiver of his rights. Moreover, unlike in Collins, here the trial court did not enter into any negotiations with defendant regarding his plea, thus jeopardizing its duty to remain “neutral and detached” in evaluating whether defendant’s waiver was voluntary. (Collins, supra, 26 Cal.4th at p. 309.)
Nor are we persuaded that the entire colloquy left defendant with the impression that the trial court would grant his Romero motion. Defendant claims that the trial court’s advisement regarding its discretion was “incomplete and misleading,” because it failed to stated the “specific factors” that it “must weigh and the particular findings to justify striking prior strikes.”
In People v. Williams (1998) 17 Cal.4th 148, our Supreme Court set forth the factors that a trial court must consider in exercising its discretion to grant or deny a Romero motion. In ruling on such a motion, the trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.)
Here, the trial court correctly outlined the roles of the probation officer, defense counsel, and the prosecutor in the Romero proceedings. The trial court also referred to the relevant factors, including the charged offenses, defendant’s personal and family history, interested parties, and mitigating and aggravating circumstances, that it would consider in exercising its discretion in ruling on the Romero motion. Moreover, the trial court then stated that “it would be up to [the court] to use the legal principles laid down by the Supreme Court and try to apply them to the facts of this case to determine if it is proper to exercise discretion of this type in this particular case, so it is kind of an involved process with no promises absolute.” Based on this record, the trial court adequately informed defendant that its decision on the Romero motion had not yet been made and that it was not promising that the decision would be in defendant’s favor.
Defendant’s reliance on People v. Williams (1969) 269 Cal.App.2d 879 (Williams), is misplaced. In Williams, the trial court gave legal advice to the defendant regarding the defense of entrapment, and told the defendant that if he pleaded guilty, it “would have the power to grant probation.” (Id. at p. 881.) The trial court then stated that if the defendant went to trial, and the prosecution amended the information to charge the defendant’s prior conviction, which the trial court assumed it would do, and the defendant was found guilty, the trial court would be required to sentence him to state prison. (Id. at p. 882.) The defendant then pleaded guilty to certain charges and others were dismissed. (Ibid.) At the time of sentencing, however, the trial court and the prosecutor noted that the trial court and the parties had erred in believing that the trial court would have the discretion to grant probation. (Id. at p. 883.) The trial court then denied probation. (Id. at p. 884.)
The Williams court reversed the judgment on the ground that “the combination of circumstances” demonstrated that the defendant’s guilty plea “was not the result of [the defendant’s] free and informed choice.” (Williams, supra, 269 Cal.App.2d at p. 885.) The court also observed that “special problems are presented when the judge participates in plea negotiations. Experience suggests that such judicial activity risks more, in terms of unintentional coercion of defendants, than it gains in promoting understanding and voluntary pleas, and thus most authorities recommend that it be kept to a minimum. [Citations.] If the judge does participate in plea discussions he should not convey any impliedly threatening messages as to what the prosecutor will do if the accused persists in pleading not guilty. And if an uncoerced bargain is made it must be carried out by the court or withdrawal of the guilty plea must be allowed.” (Id. at p. 884.)
The present case is factually distinguishable from Williams. Here, the trial court did not make any implied threats regarding what the prosecutor might do if defendant went to trial. Moreover, in contrast to Williams, the trial court did not misrepresent its discretionary authority to strike defendant’s prior strike convictions.
Given our conclusion that the trial court did not offer any inducements in exchange for defendant’s no contest pleas, we need not reach defendant’s claim that the trial court’s “questioning regarding promises did not validate the waiver.”
III. Disposition
The judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.