PEOPLE v. PALMER

Appellant’s Reply Brief on the Merits

Cal.February 14, 2013

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. DAVID PALMER, Defendant and Appellant. No. 5204409 Court of Appeal Case No. H036979 Santa Clara County Superior Court Case No.:C1094540 APPEAL FROM THE JUDGMENTOF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA The Honorable Drew Takaichi APPELLANT’S REPLY BRIEF ON THE MERITS SUPREME COURT FILED Jean M. Marinovich Attorney at Law FEB 14 2013 P.O. Box 2079 Aptos, CA 95001-2079 Frank &. McGuire Clerk (831) 722-1369 Deputy State Bar # 157848 jean.marinovich@comcast.net Attorney for Appellant Appointed by the Supreme Court TABLE OF CONTENTS Table of Authorities ii Argument 1 I. II. A CLAIM THAT THE TRIAL COURT FAILED TO ESTABLISH A FACTUAL BASIS FOR DEFENDANT’S PLEA WITHIN THE MEANINGOF PENAL CODE SECTION 1192.5 IS COGNIZABLE ON APPEAL WHETHER OR NOT DEFENSE COUNSEL STIPULATED TO A FACTUALBASIS 1. DEFENSE COUNSEL’S BARE STIPULATION TO A FACTUALBASIS, WITHOUT REFERENCE TO ANY DOCUMENTDESCRIBING THEFACTS, FAILS TO ESTABLISH A FACTUAL BASIS WITHIN THE MEANING OF PENAL CODESECTION1192.5 10 Conclusion 13 TABLE OF AUTHORITIES Cases Boykin v. Alabama (1969) 395 U.S. 238 12 McCarthy v. United States (1969) 394 U.S. 459 12 People v. Adams (1993) 6 Cal.4% 570 12 People v. Castillo (2010) 49 Cal.4th 145 9 People v. Couch (1996) 48 Cal.4th 1053 9 People v. Coulter (2008) 163 Cal-App.4" 1117 4,6 People v. Enright (1982) 132 Cal.App.3d 631 4,6 People v. French (2008) 43 Cal.436 2-5 People v. Gonzales (1993) 13 Cal.App.4* 707 5 People v. Hoffard (1995) 10 Cal.4" 1170 2-7, 11 People v. Holmes (2004) 32 Cal.4 432 3-5, 7-8, 13 il People v.Little (2004) 115 Cal.App.4" 766 People v. Marlin (2004) 124 Cal.App.4559 People v. McGuire (1991) 1 Cal.App.4* 281 People v. Mickens (1995) 38 Cal.App.4® 1557 People v. Saunders (1993) 5 Cal.4 580 People v. Tigner (1982) 133 Cal.App.3d 430 People v. Villalobos (2012) 54 Cal.4th 177 People v. Voit (2011) 200 Cal.App.4" 1353 People v. Watts (1977) 67 Cal.App.3d 173 People v. Wilkerson (1992) 6 Cal.App.41571 People v. Willard (2007) 154 Cal.App.4'* 1329 Statutes Penal Code § 1192.5 § 1237.5 ili 12-13 10 4-5 2,4-5, 11 1-8, 10 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. DAVID PALMER, Defendant and Appellant. ARGUMENT I. No. 5204409 Court of Appeal Case No. H036979 Santa Clara County Superior Court Case No.:C1094540 A CLAIM THAT THE TRIAL COURT FAILED TO ESTABLISH A FACTUALBASIS FOR DEFENDANT'S PLEA WITHIN THE MEANINGOF PENAL CODESECTION1192.5 IS COGNIZABLE ON APPEAL WHETHER OR NOT DEFENSE COUNSEL STIPULATED TO A FACTUALBASIS Appellant has arguedthat the issue of whetherthe trial court properly established a factual basis goesto the legality of the proceedings and is therefore cognizable on appeal. (OBM 3.) Respondent counters that appellant’s bare stipulation, through counsel, constitutes an admission of guilt; thus, a claim challenging the sufficiency of the stipulation is not cognizable on appeal. (ABM 5.) Specifically, respondent contendsthat the courtis obligated only to make an inquiry, which it did. (ABM 7.) Representation by counsel ensuresthat the protective purposes of Penal Code section 1192.5 (hereafter § 1192.5) are met. (ABM 4, 12.) Defendants may protect their rights by refusing to stipulate or claiming innocence. (ABM 16-17.) Defendants who permit counsel to stipulate on their behalf makea tactical decision to do so and should notbe able to create an appealable issue by simply changing their minds. (ABM 11.) Absent a “reviewable record,” which shows mistake and/or ineffective assistance of counsel, defendants should be deemed to have “waived”the issue. (ABM 12, 20.) Respondent also claims that defendants are estopped from claiming error. (ABM 21.) Appellant maintains that the issue of the sufficiency of a factual basis is one going to the plea process andis therefore cognizable on appeal. Respondentrationalizes that a stipulation is evidence, which proves guilt. Therefore, a challenge to the stipulation of a factual basis goes to guilt and is not cognizable on appeal. (ABM 1-2, 7, 11, 12-13.) Respondent's position is an over-simplification of the issue which ignores the source of the rule and its purpose. Section 1192.5 is not an evidentiary statute, and the factual basis inquiry doesnotrelate to guilt. [I]t “should be enoughthatthere is a factual basis for the plea, and not necessarily that the defendantis guilty.” (People v. Watts (1977) 67 Cal.App.3d 173, 179, quoting (1 Wright, Federal Practice and Procedure (1969) § 174, pp. 377-378.) Section 1192.5 dictates procedural rules designed to safeguard the rights of unsophisticated defendants whoplead guilty. (Peoplev. Hoffard (1995) 10 Cal.4" 1170, 1181, 1183 [“Section 1192.5... concerns the procedurefor taking a plea of guilty ... .”]; People v. French (2008) 43 Cal.4th 36, 50-51.) The statute is not related to guilt, but rather requires that the court follow certain proceduresin taking the plea. (Ibid; § 1192.5.) The statute seeks to avoid pleas by innocent defendants through the court’s duties in taking the plea. (People v. French, supra, 43 Cal.4" at pp. 50-51.) Thus, section 1192.5 is a prophylactic proceduralrule, the violation of whichis cognizable on appeal. Respondent acknowledges that some claimschallenging the factual basis inquiry are cognizable on appeal. (ABM 10, 16.) For example, whena defendant declines to stipulate to a factual basis, the appellate court reviewsthe record to determine whetherthe failure to inquire was harmless, or whether sufficient evidence supports the trial court’s finding of a factual basis. (ABM 16;cf. People v. Holmes (2004) 32 Cal.4t 432, 443.) However, respondentclaims that a defendant whose counsel stipulates waivestheissue of sufficiency of the factual basis on appeal and cannot challenge the issue absent a record showing mistake or ineffective assistance of counsel. (ABM 12, 21.) Defendants should not bear the burden to produce a record showing mistake or ineffective assistance of counsel. (ABM 12, 21.) Oneof the purposesof the factual basis requirementis to create a record for review. (People v. Hoffard, supra, 10 Cal.4at p. 1183.) By failing to satisfy the statute, the court eliminated a proper record. The people cannot use the absence of a record to deflect a claim of error. To do so wouldinsulate the error by using its very consequencesas protection. In attempting to distinguish appellant’s claim challenging a bare stipulation from factual bases claims which are cognizable, respondentrelies on a quote from People v. Voit (2011) 200 Cal-App.4th 1353, 1365-1366, in which the court of appeal stated that section 1192.5 required a factual inquiry of the trial court, not the appellate court. (ABM 13.) Respondentclaims that an “appellate court’s substantive review of the contents of” police reports or preliminary hearing transcripts “demonstrates that the claim .. . [is] ‘essentially a challenge notto the trial court’s process, but to its ultimate conclusion.’” (ABM 15, quoting People v. Voit, supra, 200 Cal.App.4* at p. 1370.) Respondent's distinction is inapt. In both circumstances the appellate court examines the contents of the record to determine whether the trial court’s factual basis determination is supported. If sufficiency of a factualbasis after the defendant's refusalto stipulate is cognizable on appeal, then sufficiency of a stipulation to support the finding is equally cognizable on appeal. The only difference in the case of a bare stipulation is that there may be no record to examine to determine harmlesserror. Therefore, an examination of the record does not render the issue non- cognizable. Respondentcites a numberof authorities which she claims support application of the forfeiture rule. (ABM 17-19; People v. Holmes, supra, 32 Cal.4* 432; People v. Hoffard, supra, 10 Cal.4 1170; People v. French, supra, 43 Cal.4" 36; People v. Watts, supra, 67 Cal.App.3d 173; Peoplev. Tigner (1982) 133 Cal.App.3d 430; People v. Enright (1982) 132 Cal.App.3d 631; People v. Coulter (2008) 163 Cal.App.41117.) Respondent dismisses a numberof cases which reached the merits as wrongly decided. (ABM 19- 20; People v. Willard (2007) 154 Cal.App.4" 1329; People v. Mickens (1995) 38 Cal.App.4" 1557; People v. Gonzales (1993) 13 Cal.App.4" 707; Peoplev. Wilkerson (1992) 6 Cal.App.4* 1571.) Although respondent claims that Holmes addressed the nature of the inquiry and notthe court's ultimate conclusion, this Court’s decision reflects an analysis of the sufficiency of the content. (People v. Holmes, supra, 32 Cal.4® at pp. 437, 443 [Court analyzed sufficiency of complaint to which trial court referred].) Neither of this Court’s other cases cited are on point. In Hoffard, this Court held section 1192.5 was inapplicable because the defendant’s plea was unconditional. (People v. Hoffard, supra, 10 Cal.4t* at p. 1174.) In French, this Court held that the factual basis does not constitute an admission by the defendant and therefore cannot support imposition of an aggravating circumstance which increases the punishment beyond the statutory maximum. (People v. French, supra, 43 Cal.4" at pp. 50-51.) The Court of Appeal cases do not support respondent’s position. In each case, the reviewing court made a substantive analysis of the court’s express or implied conclusion. In Watts, there was no inquiry by thetrial court, so the Court of Appeal examined the grand jury transcript to find the error harmless. (People v. Watts, supra, 67 Cal.App.3d at pp. 180-181.) Similarly, in Tigner, the trial court made no inquiry and simply stated that there wasa factual basis. (People v. Tigner, supra, 133 Cal.App.3d at p. 435.) However, the court had only the presentence report recitation of the facts, which is found insufficient to render the error harmless. (Ibid.) In Enright, the Court of Appeal upheld the plea because the parties stipulated to the police reports, which supplied a sufficient factual basis. (People v. Endright, supra, 132 Cal.App.3d at p. 634.) In Coulter, the trial court made the inquiry based on the probation report at sentencing. (People v. Coulter, supra, 163 Cal.App.4* at pp. 1122.) The Court of Appeal upheld the procedure, and held any error harmless in any event because the record supplied a sufficient factual basis. (Ibid.) Therefore, in each case, the Court of Appeal addressed the factual basis issue as cognizable and made a substantive review of the facts in the record. Respondent acknowledgesthat the purposeofthe statuteis to protect unsophisticated defendants from pleading to a crime whentheir acts do not actually constitute the offense. (ABM 4, 9, 11.) Another purposeis to create a record for appellate or collateral review. (People v. Hoffard, supra, 10 Cal.4* at p. 1183.) These purposesare notfulfilled by precluding review of the sufficiency of a factual basis. Thetrial court’s duty goes beyondcollection of a stipulation. The rule states that the court must“satisfy itself... that there is a factual basis for the plea.” (§ 1192.5.) A barestipulation by defense counsel doesnotreflect the court’s reasoned analysis of the issue. It also does not protect the record for review. Representation by counsel does notsatisfy the requirements of section 1192.5. The statute does not exempt cases in which the defendant is represented by counsel from the court’s duty to inquire. Had the Legislature intended to put the burden on counsel and notthe court, it would have applied the rule only in cases involving unrepresented defendants. The statute makes no such distinction. Nothing in the statute suggests that representation by counsel relieves the court of its duty to elicit facts to satisfy itself that there is a factual basis. Nordoes the defendant’s right to decline a stipulation satisfy the statute. Since the purpose of the statute is to protect unsophisticated defendants, we cannot presume those same defendants are sophisticated enoughto assert their right in the face of their counsel’s stipulation. To do so would directly contravene oneof the statute’s purposes. The statute places the burden on the court to make the inquiry, not on the defendant to demandthe inquiry. This is true because the defendant is presumed unsophisticated while the trial court has expertise. Shifting the burden to defendants would gut the purposeofthe rule. Respondentasserts that counsel’s stipulation “waives” the issue for appeal. (ABM 7, 20.) Appellant disagrees. Cognizability is determined by issues waived bytheplea, not by stipulation to a factual basis. (Pen. Code, § 1237.5; People v. Hoffard, supra, 10 Cal.4" at pp. 1177- 1178.) All factual basis issues are either cognizable or not, regardless of whetherthey are established by a bare stipulation or stipulation to reports or other facts. The plea does not waive review of the court’s determination that there is a sufficient factual basis under section 1192.5. (People v. Marlin (2004) 124 Cal.App.4t 559, 571; ABM 10, 16.) This Court has reviewed the issue of whetherthe trial court established a sufficient factual basis under section 1192.5. (People v. Holmes, supra, 32 Cal.4" at pp. 435-436.) Therefore, the plea does not waive review of whethera bare stipulation provides a sufficient factual basis undersection 1192.5. Respondent's position more accurately proposesthat a defendant “forfeits” the statutory right in section 1192.5 to have the court satisfy itself that there is a factual basis by failing to object to counsel’s bare stipulation. (People v. Saunders (1993) 5 Cal.4t 580, 590, fn. 6.) Certain statutory and even constitutional rights may be forfeited. (Id., at p. 590 [defendantforfeited statutory right to have same jury which decided guilt decide prior conviction allegations].) However, some rights may be forfeited only if the court gives the defendant the proper advisements. For example, a defendant doesnotforfeit significant deviations from the plea agreement unless the court has given the proper advisement undersection 1192.5, i.e., that he may withdrawhis plea. (People v. Villalobos (2012) 54 Cal.4t* 177, 182.) In the context of the court’s duty to satisfy itself of a sufficient factual basis for the plea, a forfeiture rule would defeat the purpose of the statute to protect unsophisticated defendants. Unsophisticated defendants would not knowto assert their right to a substantive factualbasis. Therefore, a forfeiture rule would directly contravene the primary purpose of the statute. The requirementof a factual basis inquiry is intended to support a defendant’s constitutional rights. (People v. Holmes, supra, 32 Cal.4at p. 438.) Counsel may notplead guilty for the defendant, or waive his constitutional rights. Counsel should also not be able to bind the defendant to an unintelligent plea by stipulating away this important inquiry. Respondentalso seeks application of estoppel principles to the claim at issue. (ABM 21.) The estoppel doctrine precludes a party from. taking one position and then seeking a second advantage by taking an incompatible position. (People v. Castillo (2010) 49 Cal.4145, 155.) In Castillo, the district attorney was estopped from seeking an indeterminate commitment underthe sexually violent predator lawsafter signing a stipulation, upon which the defendantrelied, that he would proceed on pending cases underthe two-yearlimit of the previous law. (Id., at pp. 148-150, 154-155.) Estoppel blocks a defendant’s appeal only whenhereceives a benefit from a bargain to which heintelligently agrees. (People v. Couch (1996) 48 Cal.4tr 1053, 1056-1057.) For example, in Couch, the defendant pled no contest to the charge and admitted a strike prior in exchangefor a 32-month sentence. (Id., at p. 1055.) The defendant then appealed application of the three strikes law on various grounds. (Ibid.) The Court of Appeal held that he was estopped from seeking to gain an additional advantageafter accepting a reduced sentence by agreeing to application of the three strikes law. (Id., at pp. 1056-1057.) Here, appellant does not seek to gain an additional advantage by reneging on a promiserelating to the plea bargain. He merely seeks to remedy a defect in the procedure of his plea. Appellant’s claim challenges the legality of the plea procedure andis therefore congnizable on appeal. II. DEFENSE COUNSEL’S BARE STIPULATION TO A FACTUAL BASIS, WITHOUT REFERENCE TO ANY DOCUMENTDESCRIBING THE FACTS, FAILS TO ESTABLISH A FACTUALBASIS WITHIN THE MEANINGOF PENAL CODESECTION1192.5 Appellant has argued that a bare stipulation that a factual basis exists fails to satisfy the requirements of section 1192.5. (OBM 13.) Respondent counters that “a stipulation by counselsatisfies the policy goals of the statute.” (ABM 22.) Respondentasserts that a stipulation to a factualbasisis no different than any other evidentiary stipulation, which counselis authorized to make on a defendant’s behalf. (ABM 24-27.) Counsel maystipulate to protect the defendant from details of the offense biasing the judge. (ABM 27.) Absenta claim of ineffective assistance, thereis nobasis to fear absenceof a factual basis. (ABM 24.) Appellant disagrees. Respondentrelies on the majority opinion in People v. McGuire (1991) 1 Cal.App.4* 281, 282-283, which held that a barestipulation is sufficient to establish a factual basis under section 1192.5. (ABM 22-23.) Appellant maintains that the majority decision in McGuire is not persuasivein light of the purposeof the statute and this Court’s subsequentdecision in Holmes. (See OBM 14-17.) Respondentstates that, “[w]hen the defendant is represented by counsel whenentering his plea, the policy concernsreflected in the statute are adequately addressed.” (ABM 23.) Appellant disagrees. The statute seeks to protect unsophisticated defendants by requiring the court 10 to garner information sufficient to establish a prima facie evidence of the charge and to create an adequate record for review. (People v. Hoffard, supra, 10 Cal.4* at p. 1183.) Both purposesare derailed by the court’s acceptance of a bare stipulation from counsel. Thestatute does not limit review to cases in which the defendantis represented by counsel. Therefore, it is clear that the Legislature intended the court, not counsel, be the point of protection. By accepting a bare stipulation from counsel, the court makes no reasoned analysis of the facts. In short, it exercises no discretion. Rather, the court delegates that duty to counsel. In addition, it leaves no record for the reviewing court to determine whetherthat duty was properly exercised. This action contravenes the purposesof the statute. Respondent's analogy to an evidentiary stipulation is inapt. The factual basis is not related to guilt and does not involvetactical decisions. (People v. Watts, supra, 67 Cal.App.3d at p. 179 [the facts need only support a factual basis, not necessarily the defendant’s guilt].)! It is a prophylactic tool to support voluntariness of the plea by ensuring that the defendantis not pleading to a crime whichis not indicated by his actions. A barestipulation eliminates the prophylactic content. Therefore, a stipulation by counsel would be counterproductive to the purpose of the rule. ‘Tf analyzed as a factual inquiry relating to guilt, a stipulation to a factual basis would require express advisements and waivers because it would constitute an admission to every element. (People v. Newman (1999) 21 Cal.4413, 420, quoting People v. Adams (1993) 6 Cal.4* 570, 577.) 11 A more apt analogy would be the other prophylactic advisements involvedin the plea, such as waiversof the right to trial and silence. The Boykin-Tahl advisements are also “prophylactic” procedural requirements. (People v. Adams (1993) 6 Cal.4* 570, 576.) Counsel has no authority to stipulate that the defendant understands and waiveshis rights. (Cf. McCarthy v. United States (1969) 394 U.S. 459, 461-462, 467, 89 S.Ct. 1166 [counsel’s statementthat he advised defendant of consequencesof plea did not satisfy rule 11 [federal equivalent to § 1192.5]].) Nor cana stipulation satisfy the factual basis inquiry. A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsoryself-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiverto be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing,it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission ofall the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understandingof the law in relation to the facts. (McCarthy v. United States, supra, 394 U.S.at p. 466, footnotes omitted.) Waiverof constitutional rights may not be presumedona silent record, even where a defendantis represented by counsel. (Ibid; Boykin v. Alabama (1969) 395 U.S. 238, 239, 242-243, 89 S.Ct. 1709; People v. Little (2004) 115 12 Cal.App.4 766, 772-773, 778.) Nor should counsel be able to stipulate to a factual basis and eliminate that issue for review. Finally, respondent contendsthata bare stipulation protects a defendant from exposing details of the offense which may influence the courtto reject the plea or aggravate the sentence. (ABM 27.) A factual basis does not require recitation of detailed facts describing the crime. Only a prima facie showingof all the basic elements is required. (People v. Holmes, supra, 32 Cal.4"at p. 441.) Counsel may avoid damaging facts by reciting only facts which support a prima facie case. Acceptance of a bare stipulation in place of a factual basis, rather than protecting a defendant, would hide facts the Legislature deemed important to ascertain the voluntariness of a plea. It should not be permitted. CONCLUSION Appellant requests that this Court reverse and remand because(1) the claim challenging the factual basis of the plea is cognizable, and (2) a bare stipulation to a factual basis is insufficient to satisfy the requirements of section 1192.5 Dated: February 13, 2013 Respectfully submitted, Jean M. Marinovich Attorney at Law Attorney for Appellant 13 CERTIFICATE OF COMPLIANCE (Cal.Rules of Ct., rule 8.520(c)(1)) Case Name: David Palmer No.: 5204409 I, Jean M. Marinovich,certify pursuantto rule 8.520(c)(1) and (2) of the California Rules of Court that this brief was produced on a computer and contains 3,220 words, as calculated by the word countof the Word program. This brief therefore complies with the rule, which limits a brief produced on a computer to 4,200 words and does not exceed 15 pages. Dated: February 13, 2013 Jean M. Marinovich Attorney for Appellant 14 DECLARATION OF SERVICE Case Name: People v. David Palmer No.: 5204409 I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years and not a party to the within action; my business address is P.O. Box 2079 Aptos, California, 95001-2079. On February 13, 2013, I served the attached APPELLANT’S REPLY BRIEF ON THE MERITS By placing a true copy thereof in an envelope addressed to the person(s) named below at the address(es) shown, andby sealing and depositing the envelope in the United States Mail at Aptos, California, with postage thereon fully prepaid. Sixth District Appellate Program Office of the State Attorney General 100 N. Winchester Blvd. 455 Golden Gate Ave. Suite 310 #11000 Santa Clara, CA 95050 San Francisco, CA 94102 Office of the Clerk Santa Clara County Superior Court Court of Appeal 191 N.First Street Sixth Appellate District San Jose, CA 95113 333 W.Santa Clara Street Suite 1060 San Jose, CA 95113 David E. Palmer California Supreme Court 512 Coralwood Road Office of the Clerk Modesto, CA 95357 350 McAllister Street San Francisco, CA 94102 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on February 13, 2013, at Aptos, California. Declarant Signature 15