PEOPLE v. PALMER

Respondent’s Answer Brief on the Merits

Cal.January 25, 2013

In the Supreme Court of the State of California _ PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, ve | DAVID EDWARD PALMER, Defendant and Appellant. Case No. $204409 SUPREME COURT FILED JAN 25 2013 Sixth Appellate District, Case No. H036979 Santa Clara County Superior Court, Case No. C1094540 The Honorable Drew Takaichi, Judge RESPONDENT’S ANSWER BRIEF ON THE MERITS KAMALA D, HARRIS Frank A. McGuire Clerk Deputy Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General ' JEFFREY M. LAURENCE Deputy Attorney General ALISHA M. CARLILE Deputy Attorney General State Bar No. 264202 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5205 Fax: (415) 703-1234 Email: Alisha.Carlile@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Tssues presented .........cccccssccccesseeccesssecesseatecsscesenaeceececaeecsenaeesenesssneeeessesseesenes 1 Introduction ...... eee csessessecseessecseecssesecsneeseeeceaeesssseecesaeessesaeeaseeeseesaeesaeessesaees 1 Statement of the Case and Facts.......ccccecssscescsseeeessrecseseecesseeaesteseseessseeseses 2 Summary of the Argument...........seseenneeeessseneeesseeeeeeneeeeeeeneeeatenenenseseneeesenens 4 ATQUMENL... ce ccesessesesscscsescsesscscsesesssesssssesssscscscsesescsescseseassesasessesuesesaseneacetseaees 6 I. Appellant’s claim that the court failed to establish a factual basis for his plea is not cognizable on appeal............ 6 A. Legal standards 20.0... ieee ccsessesseeesseetseetseeessseeeseenenees 7 1. The effect of a plea bargain ....... cc eeeseeeereeees 7 2. Section 1192.5 oooeeeeeesnceecenetssneeeesssteeeenes 9 -B. Appellant’s no contest plea and stipulation waivedthe claim of an insufficient factual basis for the plea oo... ceececcesceceseeseeedeeeerecesesseeseeraeenresses 11 1, Stipulating to a factual basis for a plea waivesthe protections of section 1192.5....... 1] 2. Appellant’s claim goes tothe admissibility or sufficiency of the evidence ofhis guilt, notto the legality Of the proceediNgS ..........eeeeeeesseesteeeesnteeeeenees 12 C. Holding the no contest plea and stipulation bars the issue on appeal does not exemptthetrial court’s finding from reVieW ......... ce eeeeeseeeseeeesseeesenees 15 D. Precedent supports the proposition that review of thetrial court’s procedure, not the sufficiency of its factual basis finding, is the proper scope Of TOVICW .oo.eeeeeecceeseenseseecetseeeenetsaeseeeceeerieeatesasenaesenes 17 E. The doctrines of waiver and judicial estoppel prevent appellant from challenging the factual basis for his plea oo... cccceccsssseseresseteeeeesetevsnseseneeass 20 TABLE OF CONTENTS (continued) Page I. Stipulation by counsel is sufficient to establish a factual basis for a pled... ee ceceeeeeseeessereseeesneeseessnesensneeens 22 A. Stipulation to a factual basis by counselsatisfies the policy goals of section 1192.5 oeceeesseeseeesens 22 B. Stipulation by counsel creates a binding resolution of the evidentiary inquiry required by SECTION 1192.5 ....eececscecscetssceeeeeeceneesesteesueeateersesessatess 24 CONCIUSION. ....cccccccesccccececacecccnsccuccccuessentecscsceceneecseveesescnaveceuseseaseessseucensesenasss 28 il TABLE OF AUTHORITIES Page CASES Aguilar v. Lerner (2004) 32 Cal.4th 974 occceececssceesceceesssesteessesseseesssesneeeearenaees 21, 22 Ballard v. Municipal Court (1978) 84 Cal.App.3d 885 ....ccecceccsscesessessecseeseesneeeneeneeerssesseeeseesees 26 Boykin v. Alabama (1969) 395 U.S. 238 weesteeeeneeeeatesteeereseeeeeeees Bs 9, 27 Bradshaw v. Stumpf (2005) 545 U.S. 175 .oeeccececccccccssecseeeeecsecseeeaeeeeecseeeessessnsesenessaesreeseees 7 County ofSacramento v. Workers’ Comp. Appeals Ba. (2000) 77 Cal.App.4th 1114occccccsecseserecsecsecesrestessesesesesseesseenes 25 Faretta v. California . (1975) 422 U.S. 806 oo. cccecccceesecssectecssenecsesaeessesaeteaessesseetatensveseeeeees 24 Fireman’s Fund Ins. Co. v. Workers’ Comp. Appeals Bd. (2010) 181 CalApp.4th 752 wo. eecseeseeeneeeeeneeeeeeeneneenessseeeenees 25 Hill v. City ofClovis | (1998) 63 Cal.App.4th 434 ooo cccecccsenceneeseeneessesseesnaeetsreseeseseeses 26 In re Jaheim B. (2008) 169 CalApp.4th 1343 oo. ceceecceeecsesrecseeteesteesseesarersesssseeseeens 26 In re Tahl (1969) 3 Cal.3d 122 ooo eeccccccssesteeeteseeensetercececneesseeenesnseeteeseeesseeegs 24 Loftis v. Almager (9th Cir. 2012) F.3d [2012 WL 6183531] ooeee 17 Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308 .............sevenecaeeaeevarevseeaeeteressesecaessesnnenanns 26 North Carolina v. Alford (1970) 400 ULS. 25 coe cieecsecsscesecseceesesecneesecnecereaeseessereesaetarenaesaeeaees 17 ili People v. Adams (1993) 6 Cal.4th 570 oo. ccceceseeetecneeneeeesseeescesesseesssessesseseeeresseens 25, 26 People v. Borland (1996) 50 Cal.App.4th 124occecesccseeeeseeereesesenseesaseeesw 13, 14 People v. Castillo (2010) 49 Cal.4th 145 occceeeeeneesecerecseesenecceeseeenesnesseesereseneeees 21 People v. Chadd (1981) 28 Cal.3d 739 vo..cccccescesseessreerereteseeerieessensnenssseeseeeeeeeeens 7, 8, 15 People v. Coulter (2008) 163 Cal.App.4th 1117occsereteeeesseseesssessesssesseeseeeseaens 19 People v. DeVaughn (1977) 18 Cal.3d 889 oo ccecccesecsseceeeesereesessessessseecsesesensssssseceeneesreegs 8 People v. Enright (1982) 132 Cal.App.3d 631 occ ceieecsscsseesrtseseeesseeneeneees 10, 11, 16, 19 People v. Fisk (1975) 50 Cal.App.3d 364 oeeeceseeecessresesessssesescssaesesesesseeessesseeents 25 People v. French (2008) 43 Cal.4th 36.0... ccccesecesessesseeseneeeeseeseeeeteerereseeseeesneereanens 18, 26 People v. Gambos ; (1970) 5 Cal.App.3d 187 oc. ccccicceessesrecssereeessterensrsasnseneserseserereass25 People v. Gonzales (1993) 13 Cal.App.4th 707 oo. cecceeesescerecsseeeseeeseesecessenesiesseesneeeeens 19 People v. Guzman (1988) 45 Cal.3d 915 oo ecceeeneeneeseeresecsssseersesesseessaseaseeeesseegeeenees 25 People v. Hoffard (1995) 10 Cal.4th 1170icceseececeesseseesseesseeseeeseeeeees 8, 9, 18, 26 People v. Holmes (2004) 32 Cal.4th 432 ooo. eeescceeesneeesssneesnecesessseceesseesseeeeeseaes passim People v. Horton (1991) 54 Cal.3d 82 occeeceeeeeneeceseeseeeeesesenesseseesesseessnesseeeentes 24, 25 iv People v. Marlin (2004) 124 CalApp.4th 559occcseeseeeeeneeseeeeeeeeeeeens 9, 14, 15, 20 People v. McGuire (1991) 1 Cal.App.4th 281 oo ccccceeeseeecteeeeenesseseceeeneseetteeaes 10, 22, 23 People v. Mickens (1995) 38 Cal.App.4th 1557 oo. ecccsseeneeeserseceeseeseaereeeereersenenes 11,19 People v. Nitschmann (2010) 182 Cal.App.4th 705 oo... ceseseeserseeeeesseeeeeeeseaseaeesesaeseeees 14 People v. Ribero (1971) 4 Cal.3d 55 oo ccccccsccesecsecssecsseeecsecsecseseeeseseseasessesseaessesaeseeees 8 People v. Scott (1994) 9 Cal.4th 331eccccccsccscssecesceecseesseesessesecsresseseseesesesasens 21 People v. Thurman (2007) 157 Cal.App.4th 36 oo. ccccecesseseccssscseseeesesenssenesesseecsnseeseacseens 9 People v. Tigner (1982) 133 Cal.App.3d 430 oo... ccecsccssscecssseceserseeeesesssecseeseseesenees 10, 19 People v. Vera (1997) 15 Cal.4th 269 occcccccccecseceseseseserecreseessessressesseesessesessaeens 20 People v. Voit (2011) 200 Cal.App.4th 1353 ....icccciccseessectesseessesseecseesseseneenes passim People v Walker (1991) 54 Cal.3d1013icccccceessescereetseteeseeeeeeeeectessessesseeseseeseesees 20 People v. Wallace (2004) 33 Cal.4th 738 oc cccecccsccscecsessseecssceesesecsesseessecaesseeesens 8, 12, 13 People v. Washington (1979) 95 Cal.App.3d 488 oo... cccccccccssesesseesessressesteseresseeessessessesssseas 25 People v. Watts (1977) 67 Cal.App.3d 173 v.cccecccessccssecsesssssssssseessesseesseesseeesseaes passim People v. West (1970) 3 Cal.3d 595 oii ccccccsceseccseeseseesecseenscieeeseseeeesssessecseentes 7,17 People v. Westbrook (1996) 43 Cal.App.4th 220 0... eccccecceesseseneessseessseeereseneeeeseeseseeneees 13 People v. Wilkerson (1992) 6 Cal.App.4th 1571] vo. cececcescceseeereeressesesssessressereneesseeens 10, 20 People v. Willard (2007) 154 CalApp4th 1329 oo. eeeeceseessecessestereeeneens 10, 19, 23 Willett v. Georgia (Sth Cir. 1979) 608 F.2d 538 woo.cece ceneeesteeeestssesseeseesenes 10, 19, 23 STATUTES Health and Safety Code § 11359ieccccccsscecseecseesseecesceesaeeseseeeseceseaeeeseeessesesesseseseseseeneassaees 2 § 11378 voce ceececesscensceteceseceecceceaeenrsessaeseeeeeessseeesduseassteseeserrevenseneneass 2 Penal Code § 1018 oo ceeccesessssscsstsessneceneceeeeeseeeeceseeesssesesneescesseesesseesenseseesenecees 26 § 1192S eeeeeccccccsnneceseeeeesereeeeseeeenssueusessesenssseseeeeneeseeeeeeeseeeees passim § 1237S ceeecesccseseecssecneccnseseeeeneeesecesatseresseeeseeseeeesseseuseeesneenegey 1, 6,8 CONSTITUTIONAL PROVISIONS United States Constitution Sixth AMeNdMENt.......ceceeeeeeeneteeteteneeereeteereeeeeseees LY, 26 COURT RULES Federal Criminal Procedure Rule No. 11 ..cc.cccceccccccccccasecesseecccecceccccusecescececeusuevececsceseqeueueesecseetuseagens 22 vi ISSUES PRESENTED 1. Isa claim that the trial court failed to establish a factual basis for appellant’s plea within the meaning of Penal Code section 1192.5 cognizable on appeal when defense counselstipulated to a factual basis for the plea? 2. If the claim is cognizable, did defense counsel’s bare stipulation to a factual basis without reference to any document describing the facts sufficiently establish a factual basis? INTRODUCTION The Court of Appeal correctly held defense counsel’s stipulation to a factual basis, made with appellant’s apparent assent, barred his challenge on appeal to the adequacyofthe trial court’s inquiry into the factual basis for appellant’s plea of no contest. The challenge to appellant’s own stipulation is not cognizable on this appeal. The claim does notgoto the legality of his plea or to the powerofthe state to prosecute him notwithstanding guilt. The parties are in agreementthat a defendant cannot challenge the sufficiency of the evidenceofhis or her guilt after a plea of guilty or no contest whether or not the defendant has been granteda certificate of probable cause under Penal Code section 1237.5. In this case, a claim that the trial court at the hearing did not cause an adequate inquiry to be made into the factual basis for the plea is no different from a claim that expressly disputes the sufficiency or the admissibility of defense counsel’s stipulation that the trial court accepted as the factual basis for the plea. In terms of any statutory requirement of evidence neededto establish appellant committed an offense at least as serious as the one to which he pleaded, such claims are identical here. Regardless of how that claimis articulated, appellant waivedit and is estopped to attack it, because the stipulation, amounting to an admission of appellant as a party-proponent of the plea bargain, constituted proof or a substitute for proof of factual guilt of the crime to which appellant pleaded. Even assuming the claimis cognizable on appeal, the stipulation by counsel wasa binding resolution of an evidentiary issue on whichthetrial court wasentitled to rely. Penal Code section 1192.5 does not regulate the contents of a stipulation to a factual basis. In this case, the court’s acceptanceofa bare stipulation is in harmony with the policy considerations underlying the factual basis requirementin the statute. STATEMENT OF THE CASE AND FACTS A December9, 2010, complaint charged appellant with possession for sale ofMDMA (Health & Saf. Code, § 11378; count 1) and marijuana (id., § 11359; count 2). (CT 1-3.) On March 18, 2011, pursuant to a negotiated disposition, appellant pleaded no contest to count 1 in exchange for a grant of probation and the dismissal of count 2. (CT 9-10.) Aspart of the plea proceeding, appellant waived both a preliminary hearing and a probation report. (RT 7-8; CT 10.) . At the plea hearing, the court had the prosecutor conductvoirdire of appellant. (RT 7.) The following colloquy occurred: Ms. Tran [Prosecutor]: And, Mr. Palmer, you’re not under the influence of any drugs or medication or alcohol that would affect your judgmentin decision-making today? The Defendant: No. Ms. Tran: Okay. And other than the promises that have been stated here on the record, no other promises or threats have been made to you — The Defendant: No. Ms. Tran: — to make you change yourplea today? The Defendant: No. Ms. Tran: And youare doingthis freely and voluntary [sic] for yourself? The Defendant: Yes. Ms. Tran: Have you discussed the elements of the crimeand the defense with your attorney? The Defendant: Yeah. Ms. Tran: Are you satisfied with her advice? The Defendant: Yes. Ms. Tran: Doyoustipulate, Ms. Randisi [defense counsel], there’s a factual basis for plea as the People do? Ms. Randisi: Yes, I do stipulate. Ms. Tran: And do you also waive your preliminary examination in which you haveall the constitutional rights that the Court has previously stated that you wouldfor trial? The Defendant: Yes. (RT 8.) Following the prosecutor’s inquiry of appellant, the court stated: “I find that the defendant’s answers and responsesto the voir dire [by] the District Attorney had beenintelligently given andto the extent that there were stipulated rights they were also knowingly [and]intelligently entered into by the defendant.” (RT 10-11.) On May20, 2011, the court suspended imposition of sentence and granted appellant three years’ probation on condition he serve 270 days in county jail. (CT 18-19.) On May26, 2011, appellantfiled a notice of appeal. (CT 22.) On October 20, 2011, the Sixth District Court of Appeal granted appellant permission to seek a certificate of probable cause from the superior court. On November2, 2011, the superior court granted a certificate. (SCT 4.) Appellant challenged his plea on the groundthat his counsel’s stipulation to a factual basis for the plea was insufficient to satisfy the requirements of Penal Codesection1 192.5.! (Ct.App. Opening Br., pp.3- 4.) He sought reversal of the conviction so the trial court could make a proper inquiry into the factual basis if he reentered a plea. (/bid.) The Sixth District Court of Appeal affirmed the judgment. It found defense counsel’s stipulation, made with the apparent assent of appellant, aeconstituted an admission barring whatit found to be “‘essentially a challenge notto thetrial court’s process but to its ultimate conclusion that there was a factual basis for the plea.’” (Typed Opn., pp. 5-6, quoting People v. Voit (2011) 200 Cal.App.4th 1353, 1370.) This Court granted appellant’s petition for review on October 10, 2012. SUMMARYOF THE ARGUMENT In section 1192.5, the Legislature afforded unsophisticated defendants a prophylactic assurance, in the formofa requirementthatthe trial court inquire into the factual basis for a negotiated plea, against conviction of a | felony based on conduct not amounting to crime. A defendant represented at the hearing by counsel whostipulates in open court to a factual basis for the plea, with the defendant’s apparentassent, acts in his own presumed best interest to ensure the benefit of his conditional bargain andto fulfill the purposebehindthe statutory requirement toprevent wrongful convictions. In this case, defense counsel stipulated to a factual basis for appellant’s plea of no contest on the record, in appellant’s presence, before he entered the plea in exchange for conditional benefits of probation and All further undesignated section references are to the Penal Code. the dismissal of one count. There is no claim that counselwasineffective in the formulation of the plea bargain, that appellant lacked adequate time to consult with counsel, or that appellant acted from inattention or lack of knowledge in entering the plea. (There was no motion to withdraw theplea, so there are no factual findings on these points to review.) No objection was madebyeither party to the stipulation. There was norequest that the stipulation reference a document to provide more detail about the factual basis for the plea than reflected in the complaint and the record ofthe plea hearing itself. By offering the stipulation through his counsel, appellant - waived the claim thatthe trial court erred by failing to inquire into the factual basis for the plea in lieu of, or in addition to, his own counsel’s stipulation. Appellant’s plea wasitself a conviction and acted as an admission of the elements of the offense to which he pleaded no contest. It waived any challenge to issues related to guilt or innocence on appeal. Consequently, his complaint on appeal that the court failed to establish a sufficient factual basis for his plea is procedurally barred. The claim challenges,in effect, _ the admissibility or the sufficiency of the stipulation as a factual basis, a claim that is foreclosed because he necessarily disputes the existence of a factualbasis for a finding of guilt sans the stipulation. The claim also fails on the merits. Counsel’s bare stipulation satisfies the purpose of section 1192.5 andis sufficient to establish a factual basis. When,as here, a defendant has adequate time to consult with counsel prior to the entry of his plea, counsel’s stipulation to a factual basis is made on behalf of his or her client’s best interests. The stipulation obviates the danger that the defendantis pleading guilty based on conductthat does not - amount to a crime. At the same time,it provides an assurance to the defendant that information in available documents (e.g., police reports) will not be seen as an admission of the facts contained therein that might becomethe basis for the court’s aggravation of sentence (when the bargain does not includea stipulated sentence), or for the rejection of the bargain (as whenthe agreed sentence is probation but the facts appear highly ageravating or even ontheir face to disqualify the defendant from probation). Stipulating to a factual basis for a plea is similar to an evidentiary stipulation. It amounts to a limited admissionofa party, whichtrial courts routinely accept and which represents a tactical decision bestleft to the discretion of defense counsel and to regulation through habeasclaims of ineffective assistance of counsel. Section 1192.5 does not require counsel’s stipulation to a factual basis for a plea to reference a particular document that details more information about the facts of the offense than are reflected in the charge or the recordofthe plea hearing. ARGUMENT I. APPELLANT’S CLAIM THAT THE COURTFAILED TO ESTABLISH A FACTUAL BASIS FOR HIS PLEA IS NOT COGNIZABLE ON APPEAL Appellantclaimsthetrial court failed to establish a sufficient factual basis for his plea. He acknowledgesa factual basis inquiry is neither a constitutional nor a jurisdictional requirement. (ABOM 6.) Nonetheless, he maintains the issue is cognizable because it goes to the legality of the proceedings. (See § 1237.5) We disagree. Claimsrelating to the process by whichthe plea was obtained, such as a claim that the court was unaware ofits duty to establish a factualbasis, go to thelegality of the proceedings and are cognizable. (Peoplev. Voit, supra, 200 Cal.App.4th at p. 1369.) Similarly, a defendant who declines to stipulate and holdsthe court to its statutory duty to establish to a sufficient factual basis can challenge its determination. In the present case, however,the trial court was aware ofits duty and accepted appellant’s stipulation that a factual basis existed. The defense agreed, throughits stipulation, that the court satisfied its statutory obligation to make an inquiry into a factual basis. That necessarily waived the claim that there was an insufficient factual basis for the plea or that the stipulation, made after appellant accepted a plea bargain on the advice of counsel, failed to fulfill the purpose of the section 1192.5 requirement of an inquiry into a factualbasis. Appellant’s claim essentially challenges the sufficiency or the admissibility of a bare stipulation as an admission oras a substitute for proofto establish the factual basis for his guilt. That does not go to the legality of the plea or to the powerofthe state to prosecute appellant notwithstanding guilt. By stipulating to the factual basis, appellant waived all issues relating to guilt or innocence. Therefore, this claim is not cognizable on appeal. | A. Legal Standards 1. The effect of a plea bargain Plea bargains play an integral role in the resolution of criminal cases and are “essential to the expeditious and fair administration ofjustice.’ [Citation].” (People v. West (1970) 3 Cal.3d 595, 604.) “Both the state and the defendant may profit from a plea bargain. The benefit to the defendant from a lessened punishment doesnot need elaboration; the benefit to the state lies in the savingsin costs oftrial, the increased efficiency of the procedure, and the further flexibility of the criminal process.” (/bid.) “A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently... .” (Bradshaw v. Stumpf(2005) 545 U.S. 175, 182-183.) It waives formal defects in the accusatory pleading. (People v. Chadd (1981) 28 Cal.3d 739, 748.) It also waivesthe right to a jury trial, the privilege against self incrimination, and the right to confront witnesses. (Boykin v. Alabama (1969)395 US.238, 243.) The plea “ordinarily includes an admissionthat thereis a factual basis for the plea.” (People v. Wallace (2004) 33 Cal.4th 738, 749,citing People v. Holmes (2004) 32 Cal.4th 432, 438.) Furthermore, the plea admits every element of the crime charged andacts as a conviction for the offense. (People v. DeVaughn (1977) 18 Cal.3d 889, 895.) Itis a stipulation that the prosecution “need introduce no proof whateverto support the accusation ....” (People v. Chadd, supra, at p. 748.) The plea has the sameeffect as a guilty verdict at trial. (People v. Wallace, supra, 33 Cal.4th at p. 749.) A no contest plea to a felonyis legally equivalentto a guilty plea, and is subject to the same appellate restrictions. (Id. at p. 749; see § 1016, subd. (3) .) Entering a plea of guilty or no contest substantially restricts the ability to appeal the conviction. (People v. DeVaughn, supra, 18 Cal.3d atpp. 895-896.) To appeal after such a plea, a defendant must obtain a certificate of probable cause. (§ 1237.5.) A certificate ofprobable cause neither restricts nor expands scope of appealable issues. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178). It serves as a bar to prevent defendants from bringing frivolous claims, not to define the issues cognizable on appeal. (/d. atp.1179.) Appealis limited to “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (§ 1237.5; see also People v. Ribero (1971) 4 Cal.3d 55, 60-64.) A claim that a defendant’s plea was not knowing and voluntary is cognizable on appeal. (People v. Hoffard, supra, 10 Cal.4th at p. 1178.) Because a plea admits guilt, however, issues relating to guilt or innocence are not cognizable after a guilty or no contest plea. (/bid.) Thus, a defendant who pleads guilty cannot challenge the sufficiency of the evidence of his guilt on appeal. (People v. Thurman (2007) 157 Cal.App.4th 36, 43-44; see Peoplev. Hoffard, supra, at p. 1178.) The lowercourts are split on whether a claim that the court failed to establish a factual basis for a plea goesto the legality of the proceedings and is cognizable after a guilty plea. (Compare People v. Voit, supra, 200 Cal.App.4th at pp. 1365-1366 [not cognizable] with People v. Marlin (2004) 124 Cal.App.4th 559, 571 [cognizable].) 2. Section 1192.5 The United States Constitution requires that a guilty or no contest plea and the accompanying waiverofrights be voluntarily and intelligently made, nothing more. (Boykin v. Alabama, supra, 395 U.S. at pp. 242-243.) California has added the statutory requirementthat the court satisfy itself after inquiry of a factual basis for a negotiated plea. (§ 1 192.5.)° While no constitutional requirement for a factual basis inquiry by the court exists, “the statutory mandate of section 1192.5 helps ensure that the ‘constitutional standards of voluntariness and intelligence are met.’ (People v. Hoffard, supra, 10 Cal.4th at p. 1182, fn. 11.)” (People v. Holmes, supra, 32 Cal.4th at p. 438.) “The purpose of the requirementis 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 whichheis charged.” (People v. Watts (1977) 67 Cal.App.3d 173, 178; see also Peoplev. Hoffard, supra, at pp. 1183-1184.) * Penal Code section 1192.5 providesin pertinent part: “Upona plea of guilty or nolo contendere to an accusatory pleading charging a felony... [§]... [t]he court shall also cause an inquiry to be made of the appellant to satisfy itself that the plea is freely and voluntarily made, andthat there is a factual basis for the plea.” Thetrial court may establish a factual basis by directly questioning the defendant, or by eliciting statements or admissions by his counsel. (People v. Holmes, supra, 32 Cal.4th at p. 440, fn. 5; People v. Watts, supra, 67Cal.App.3d at pp. 179-180.) The parties maystipulate that a document, such as a police report, establishes a factual basis. (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1578; People v. Enright (1982) 132 Cal.App.3d 631, 634-635.) Additionally, reference to a complaint containinga factual basis for each essential elementof the chargeis sufficient. (Peoplev. Holmes, supra, at p. 441.) A summaryassertion by the court that “Tt]here’s a factualbasis for the plea,” without any other attempt to develop a factual basis, however, is insufficient. (People v. Tigner (1982) 133 Cal.App.3d. 430, 433.) The Courts of Appeal are divided on whethera stipulation to a factual basis by counsel which doesnot reference a specific documentis sufficientto satisfy the requirements of section 1192.5. (Compare People v. Willard (2007) 154 Cal.App.4th 1329, 1334-1335 [insufficient] with People v. McGuire (1991) 1 Cal.App.4th 281, 283 [sufficient].) Thetrial court has broad discretion in determining whetherthere is an adequate factual basis for the plea. (People v. Watts, supra, 67 Cal.App.3d at p. 180 [“Thetrial court is free to utilize whatever procedureis best for the particular case before it to ensure that the defendantis entering a plea to the proper offense underthe facts of the case”’].) The court need notfind a factual basis for each element of the offense. (/bid.) Nor does the court need to be convinced beyond a reasonable doubt of defendant’s guilt. (dd. at p. 179.) Instead,the trial court is only required to establish a primafacie factual basis for the charges. (People v. Holmes, supra, 32 Cal.4th atp. 441.) In absence ofa stipulation,the trial court’s finding of a factual basis is reviewed for abuse of discretion. (/d. at p. 443.) 10 B. Appellant’s No Contest Plea and Stipulation Waived the Claim of an Insufficient Factual Basis for the Plea Analysis of appellant’s claim demonstrates that it goes to the admissibility or the sufficiency of the evidence ofhis guilt, not to the legality of the proceedings. Therefore, it is not cognizable on appeal. 1. Stipulating to a factual basis for a plea waives the protections of section 1192.5 Section 1192.5 imposes a duty onthe trial court to satisfy itself as to the factual basis for a guilty plea in a negotiated disposition involving a plea to a felony. As noted, the purpose of the requirementis to protect a legally unskilled defendant from pleading guilty and suffering a conviction whenhis conduct does not amount to a violation of the law. (Peoplev. Watts, supra, 67 Cal.App.3d at p. 178.) The court maysatisfy its duty in any number of ways, such as reviewing the preliminary hearing transcript, examining the police reports regarding the incident, enquiring of the defendant, or by accepting a stipulation from counselthat a factual basis exists. (People v. Holmes, supra, 32 Cal.4th at p. 437 [inquiry of defendant]; People v. Voit, supra, 200 Cal.App.4th at. p. 1361 [preliminary hearing transcript]; People v. Mickens (1995) 38 Cal.App.4th 1557, 1565 [probation report], People v. Enright, supra, 132 Cal.App.3datp. 634 [police reports].) In People v. Voit, supra, 200 Cal.App.4th at page 1366, the Sixth District Court of Appeal said: “Particularly where a defendant not only personally pleads guilty or no contest but also personally or through counsel concedes the existence of a factual basis for his or her pleas, that defendant should not be allowedto create an appellate issue by simply changing his or her mind about the existence of a factual basis for theplea, without also establishing that this concession resulted from a mistake.” As in Voit, appellant here madea tactical choice and stipulatedto the factual 11 basis, thereby waiving further inquiry and relieving the court of any obligation to find a factual basis for the plea based on otheravailable documents or examinations. (See also People v. Wallace, supra, 33 Cal.4th at p. 750 [noting that defendant could not have appealed his conviction based oninsufficient evidenceafter stipulating to a factual basis].) Moreover, counsel’s stipulation, made after adequate time was afforded to consult with appellant, ensured that he did not plead guilty based on ignorance ofthe law. (See People v. Watts, supra, 67 Cal.App.3d at p. 178.) Whena defendantis representedat the plea hearing, has adequate time to consult with counsel, and agreesto stipulate to a factual basis for his plea rather than requiring the court to independently make a finding, the stipulation waives a challenge to the adequacy of the factual basis for the plea—absent at least a reviewable record reflecting mistake or fraud or ineffective assistance of counsel with respect to the stipulation. No such extrinsic claims are involvedhere. 2. Appellant’s claim goes to the admissibility or sufficiency of the evidenceof his guilt, not to the legality of the proceedings Appellant contendsthat his claim goesto the legality of the — proceedingsasit challenges the court’s procedurein soliciting facts. (ABOM11.) But his real quarrel is with the trial court’s decision to accept his counsel’s stipulation, not with the plea colloquy. He doesnot claim that the court did not explain the rights he was giving up aspart ofthe plea,or that he entered into the agreement due to mistake or inadvertence. He acknowledgesthat the record reflects an inquiry asto the factualbasis of his plea. (RT 8.) Appellant’s complaintis that, aside from thestipulation by his counsel, the record did not show information establishing the factual basis for his plea. This claim is indistinguishable from one directly challenging the 12 sufficiency or the admissibility of defense counsel’s stipulation as the factual basis for the plea and necessarily relates to the sufficiency of the evidence of guilt for the crime to which appellant pleaded. Asthe Sixth District Court of Appeal explained: [A] plea of guilty or no contest waives an appellate claim of the nature “there is insufficient evidence supporting my plea.” We see no material difference between that assertion and an appellate claim that “there is no factual basis for my plea.” We believe that these assertions are fundamentally equivalent, so that a plea of guilty or no contest forecloses an appellate challenge that the plea lacks a factual basis. Section 1192.5 requires a factual inquiry by thetrial court, not by the appellate court. Particularly where a defendant not only personally pleads guilty or no contest but also personally or through counsel concedesthe existence of a factual basis for his or herpleas, that defendant should not be allowed to create an appellate issue by simply changinghis or her mind about the existence of a factual basis for the plea, without also establishing that this concession resulted from a mistake. (People v. Voit, supra, 200 Cal.App.4th at pp. 1365-1366.) Several other courts have reached a similar conclusion. In Wallace, this Court noted that a defendant whostipulated to a factual basis “could not have appealed from his ensuing conviction on the basis of insufficiency of the evidence.” (People v. Wallace, supra, 33 Cal.4th at p. 750.) In People v. Westbrook (1996) 43 Cal.App.4th 220, 223-224, Division One of the Fourth District found the defendant’s challenge to the sufficiency of the factual basis of an enhancementwasnot cognizable. The court reasoned that the defendant pleaded guilty and stipulated to a factualbasisto his plea, thus admitting the truth of the enhancement. (/bid.) In People v. Borland (1996) 50 Cal.App.4th 124, 127; Division Six of the Second District declined to consider the defendant’s challenge to the factual basis of his no contest plea when hestipulated to a factual basis. The court noted that the defendant’s plea and stipulation were a judicial admission that he 13 committed the offense alleged, and he was estopped from raising the issue on appeal. (/bid.) In People v. Nitschmann (2010) 182 Cal.App.4th 705, 709, the same court relied on estoppel to preclude a defendant’s challenge to the factualbasis for his plea after he hadstipulated that the police reports — concerning the incident supplied a sufficient basis. In People v. Marlin, supra, 124 Cal.App.4th at page 571, the Third District reached the opposite conclusion. After identifying the policy considerations underlying the requirementfor a factual basis inquiry, the court reasoned: | Given these significant policy considerations, a failure to make a sufficient inquiry, while not a constitutional or jurisdictional requirement, is one ofthe “other” groundsgoingto the legality of the proceedingsin thetrial court. Even though a defendant mayin fact be guilty of the offense to which he pleads guilty, given the policy considerations underlying the intent behind section 1192.5, an adequate inquiry into the factual basis for the plea addresses broader issues such as the voluntariness of the plea and a knowing decisionto plead guilty. A sufficient factual inquiry must be considered a necessary componentofthe legality of the proceedings. To decide otherwise would preclude review ofthe factual basis for a plea of guilty or no contest therebyfrustrating the policies the statute is intended to advance. Thus, defendant’s claim that the factual inquiry undertakenhere was insufficientis, after issuanceofa certificate of probable cause, cognizable on appeal. (People v. Marlin, supra, 124 Cal.App.4th at p. 571.) This Court should reject Marlin. Notwithstandingthe court’s assertion in Marlin that the claim wentto the legality of the proceedings, the court in fact reviewed the substanceofthe trial court’s conclusions. The defendant in Marlin pleaded guilty to second degree murder—a crime committed while driving underthe influence—andstipulated to a factual basis for his plea. (People v. Marlin, supra, 124 Cal.App.4th atp. 562.) On appeal, defendant claimed an insufficient factual basis for his plea becausethere was no evidencethat he acted with express or implied 14 malice. (/d. at p.571.) After finding the claim cognizable, the appellate court examinedthe preliminary hearing transcript to determineifthere was a factual basis for the plea. (/d. at p. 572.) The court concluded that the record demonstrated that the defendant acted with implied malice because he choseto drink and drive after suffering numerousprior drunk driving convictions, and thus was aware ofthe graverisk created by his actions. ([bid.) The appellate court’s substantive review of the contents of the police report demonstrates that the claim in Marlin, as here, was “essentially a challenge notto the trial court’s process, but to its ultimate conclusion.” (People v. Voit, supra, 200 Cal.App.4th at p. 1370.) Indeed, there was nothing procedurally infirm about the plea colloquy. Thetrial court was aware ofits duty under 1192.5 andsatisfied its duty by accepting the stipulation. As Voit explained, “[i]n such a case, the defendant’s position is concerned with the sufficiency of the evidence of his or her guilt. A defendant who belatedly disputes the existence of evidenceofhis or her guilt is making a substantive, not a procedural claim.” (/bid.) Thus, Marlin’s assertion that examination of the factual basis finding relates to the legality of the proceedings is incorrect. Likewise, in this case, appellant’s claim is, at bottom,that the prosecution failed to adduce evidenceofhis guilt. That claim is waived by his plea. (People v. Chadd, supra, 28 Cal.3d at p. 748.) C. Holding the No Contest Plea and Stipulation Barsthe Issue on Appeal Does Not Exemptthe Trial Court’s Finding from Review In Marlin, the court opined that holding a guilty plea and stipulation waivesa challenge to the factual basis for the plea would effectively foreclose any appellate review of the issue. (People v. Marlin, supra, 124 _Cal.App.4th at p. 571.) Not so. A defendant whopleads guilty maystill 15 challengethe processthat resulted in the plea. (People v. Voit, supra, 200 Cal.App.4th at Dp. 1369.) For example, a claim that thetrial court failed to make any inquiry regarding the factual basis is cognizable. Additionally, in cases where the defendant declinesto stipulate, a claim that the inquiry is inadequate is also cognizable. As Voit explained, “[a]trial court’s alleged complete failure to conduct the required inquiry does not concern the defendant’s guilt or innocenceor the sufficiency of the evidence of guilt.” (Ibid.) It is a challenge to the procedure by which the plea was obtained, and is not waived by a guilty plea. (/bid.) Similarly, if a defendant declines to stipulate and the Court of Appeal findsthat the trial court’s inquiry was inadequate, it may then review therecordfor a factual basis for the plea. (People v. Holmes, supra, 32 Cal.4th at p. 443; People v. Watts, supra, 67 Cal.App.3d at p. 182.) Ifthe record supplies a factual basis, the error is harmless. (Ibid) Additionally, a defendant who pleadsguilty but declines to stipulate to a factual basis may challenge the sufficiency of the trial court’s finding of a factual basis on appeal. By entering into a stipulation, the defendant relieves the court ofits obligation under section 1192.5 to makea further inquiry as to the factual basis for the plea. (See People v. Watts, supra, 67 Cal.App.3d at p. 179 [“statements and admissions madeby the defendant, his counsel, and the prosecutor” provide an adequate factualbasis]; People v. Enright, supra, 132 Cal.App.3d at p. 634 [stipulation to a factualbasis fulfills the requirements of section 1192.5].) If a defendantdeclinesto stipulate, however, he does not waive his protections under 1192.5, and the court must make findings based on the information in the record. (See People v. Holmes, supra, 32 Cal.4th 432, 437 [defendantdid notstipulate, and court found factual basis based on admissionto allegations in the complaint].) In any case where the defendantpreserves his section 1192.5 protections, rather than stipulating that they had beensatisfied, the trial 16 court’s findings pursuantto section 1192.5 remain subject to review, and can be overturned for an abuse of discretion. (/d. at p. 443.) Finally, if a defendant enters an Alford plea, due process may require the court accepting the plea to makefindingsthatthere is a factual basis for it. (North Carolina v. Alford (1970) 400 U.S. 25, 36-37; see also People v. West, supra, 3 Cal.3d 595.) As the Ninth Circuit Court of Appeals recently observed, “[w]hile Alford did not explicitly hold that a factual basis was constitutionally necessary, lower federal courts have drawn [from language in the opinion]that if a defendantpleads guilty while claiming innocence the trial court mustfind a factual basis.” (Loftis v. Almager (9th Cir. 2012) __ F.3d [2012 WL 6183531 at p. *5], citing Willett v. Georgia (Sth. Cir. 1979) 608 F.2d 538, 540.) Accordingly, review is foreclosed only when the defendant has affirmatively waived further inquiry under section 1192.5 by stipulating to the satisfaction of the factual basis requirementat the timeofthe plea.’ Having stipulatedto the sufficiency ofthe factual basis, a defendant cannot be heard to challenge that sufficiency on appeal. D. Precedent Supports the Proposition that Review of the Trial Court’s Procedure, Not the Sufficiency ofIts Factual Basis Finding, Is the Proper Scope of Review Although a numberof cases discuss the sufficiencyofthe trial court’s factual basis findings, they do not dictate the rule advanced by appellant. Analysis of this Court’s precedent, as well as leading Court of Appeal cases, demonstrates that review of the procedure by which a factual basis was established is the proper inquiry. For example,Holmes discussed what types of information may supply sufficient factual basis for a guilty plea. (32 Cal.4th at pp. 438-442.) This Court noted, however, that the discussion ; Additionally, a defendant mayalso bring a habeaspetition alleging that his counsel wasineffective for agreeing to stipulate to a factual basisif nonein fact existed. 17 was intended “to provide guidelinesfor the trial courts regarding how to comply with their obligations undersection 1192.5 and whatconstitutes a ‘factual basis for the plea.’” (/d. at pp. 435-436.) The actual claim at issue was procedural, that is, whetherthetrial court made a sufficient inquiry into the factual basis whenit asked the defendant if he did “whatit says you did in Count | [of the complaint] on March 24th, 2000 in Riverside County?” (Id. at p. 437.) This Court held that the trial court established an adequate factual basis based onits brief inquiry and defendant’s admissionsto the allegations in the complaint. (Id. at p. 443.) To the extent that Holmes can be read as addressing the substanceof the defendant’s factualbasis claim, the Court discussed the issue becausethere wasnostipulation to a factual basis for the plea, and thus, no waiverofthetrial court’s obligation to make a further inquiry. (See id. at p. 437.) Therefore, while the opinion provided guidanceto the lower courts on establishing a sufficient factual basis for a plea, the holding in Holmes addressed the nature ofthetrial court’s inquiry into a factual basis, notthe trial court’s ultimate conclusion. (See also People v. Voit, supra, 200 Cal.App.4th at p. 1370.) The other California Supreme Court cases that have addressed the factual basis requirement ofsection 1192.5 focus on theprocedural requirements to bring a claim andthe effect ofthetrial court’s finding. In Hoffard, this Court addressed whetherit was necessary to specifically list the lack of a factual basis for the plea as a ground for appeal on an application for a certificate of probable cause. (10 Cal.4th at pp. 1176- 1181.) Although concluding that such a specification was not required, Hoffard nonetheless refused defendantrelief because section 1192.5 did not apply to the unconditionalplea before this Court. (/d. at pp. 1 180-1 181.) | People v. French (2008) 43 Cal.4th 36, 50-51, held that a defendant’s admission of a factual basis for his plea was insufficient to obviate the 18 Sixth Amendment jury trial right to establish a fact that increased defendant’s sentence above the maximum authorized for the conviction. Several leading Court of Appeal opinions support the principle that appellate courts should review the procedure for obtaining a plea,not the trial court’s conclusion that a factual basis exists. Similar to Holmes, People v. Watts, supra, 67 Cal.App.3dat page 180, evaluated the process by which the plea was obtained. There, the trial court made no inquiry as to the factual basis for the plea, and the Court of Appeal held that a statement by defense counselthat he had discussed the legal implications of the plea with his client was insufficient to overcomethetrial court’s failure. (Ibid.) In People v. Tigner, supra, 133 Cal.App.3d at page 433, thetrial court again made no inquiry regarding the factual basis for the plea, and merely asserted that a factual basis existed. People v. Enright, supra, 132 -Cal.App.3d at page 634, also involved a challenge to the procedure leading to the plea. In that case, the appellate court found noerrorin the trial court’s acceptanceof a stipulation that the police reports supplied a factual basis for the plea, despite the absence of a record showing the court had read or considered the police reports. (/d. at pp. 634-635.) In Peoplev. Coulter (2008) 163 Cal.App.4th 11 17, 1122, the court evaluated the whether there was a required sequence for making a factualbasis finding, holding that the court was permitted to make the finding at the time of sentencing, rather than whenthe plea wasentered. In several other cases, the Court of Appeal reached the merits of the _ defendants’ claim, and substantively evaluated the evidence supporting the trial court’s finding of a factual basis for the plea. (See, e.g., People v. Willard, supra, 154 Cal.App.4th at p. 1329; People v. Mickens, supra, 38 Cal.App.4th at pp. 1564-1565; People v. Gonzales (1993) 13 Cal.App.4th 19 107, 715; People v. Wilkerson, supra, 6 Cal.App.4th at pp. 1578-1580.) These cases are wrongly decided. As explained above, review by the appellate court of the sufficiency of the evidence to show the factual basis for a pleato the particular crimeis tantamountto an evaluation of the evidence ofguilt, a matter that a defendant concedes bypleading guilty. (People v. Voit, supra, 200 Cal.App.4th at pp. 1355-1356.) E. The Doctrines of Waiver and Judicial Estoppel Prevent Appellant from Challenging the Factual Basis For His Plea Finally, well-settled principles of waiver and judicial estoppeldictate that appellant not be allowed the challengethe factual basis for his plea after admitting one existed in the plea proceeding. “Erroris waived absent a timely objection.” (People v Walker (1991) 54 Cal.3d 1013, 1023.) Here, appellant waivedpreliminary hearing and preparation of a probation report. (RT 7.) He acknowledged discussing the charge and defenses with counsel, wassatisfied with her advice, and stipulated there wasa factual basis. (RT 8, CT 9.) He made no claim that this procedure failed to satisfy section 1192.5. He madenoclaim that the court or counsel should identify the particular documentsthat support a factual basis. In orderto encourage promptdetection and correction of simple errors, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to | raise certain issues in the trial court. (People v. Vera (1997) 15 Cal.4th 269, 276 [“[i]t is both unfair and inefficient to permit a claim of error on appealthat, if timely brought to the attention ofthe trial court, could have been easily corrected or avoided”].) “In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.] These principles are invoked as a matter ofpolicy to ensure the fair and orderly 4 As with Marlin, it does not appear that the People contended that the claim was noncognizable in the cited cases. 20 administration ofjustice.” (People v. Scott (1994) 9 Cal.4th 331, 351.) The absence of a statement by the court or counsel identifying the documents supporting the factual basis, like a court’s failure to state the reasonsforits particular sentence choice, would have beeneasily cured bycalling the matter to the court’s attention at the time. (See ibid.) Therefore, failure to raise the matter below waived the claimofstatutory error. Evenifthe claim is not waived, this Court should invoke judicial estoppel to prevent appellant from raising this claim. “Judicial estoppel precludesa party from gaining an advantage by taking oneposition, and then seeking a second advantage by taking an incompatible position.” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986, internal quotation marks omitted.) “The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successfulin asserting the first position(i.e., the tribunal adopted the position or acceptedit as true); . (4) the two positionsare totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citations.]” (/d.at pp. 986-987.) Judicial estoppel applies to stipulations madein the context of plea bargains, and prevents a party from stipulating to one position in the trial court and then attempting to take a different position for purposes of appeal. (See Peoplev. Castillo (2010) 49 Cal.4th 145, 169-170 [finding stipulation by the district attorney in the trial court binding on appeal].) In this case, appellant, through counsel, stipulated to the existence of a factual basis for his plea when he appeared before the trial court. (RT 8 see also People v. Holmes, supra, 32 Cal.4th at p. 438 [“a plea ordinarily includes an admission that there is a factual basis for the plea”].) Thetrial court accepted this admission, and appellant successfully entered a plea that decreased his potential exposure to punishment. (RT 7-10.) He does not contend, nor could he onthis record, that his plea wasa result of ignorance 21 or mistakeor ineffective assistance of counsel. Rather, he contends on appeal, contrary to his position below,that the failure to establish a factual basis invalidates his plea. (See Aguilar v. Lerner, supra, 32 Cal.4th at pp. | 986-987.) Where a defendant concedesin thetrial court the existence ofa factual basisfor his or herplea,“that defendant should notbe allowed to create an appellate issue by simply changing his or her mind about the factual basis for the plea... .” (People v. Voit, supra, 200 Cal.App.4th at p. 1366.) Appellantis trifling with the Court by attempting to get a proverbial secondbite at the apple, and his claim shouldberejected. Il. STIPULATION BY COUNSEL IS SUFFICIENT TO ESTABLISH A FACTUAL BASIS FOR A PLEA Appellant contends that a stipulation by counsel without reference to a supporting documentis insufficientto satisfy the factual basis requirement set forth in section 1192.5. (ABOM 13, 18-19.) Contrary to his claim, a stipulation by counselsatisfies the policy goals ofthe statute. Furthermore, the requirementof a factualbasis finding for a guilty pleais a narrow, statutorily-based right, whichlike other rights, may be satisfied by a defendantvia a guilty plea and stipulation. A. Stipulation to a Factual Basis by CounselSatisfies the Policy Goals of Section 1192.5 In People v. McGuire, supra, | Cal.App.4th at page 283, the First District Court of Appeal, Division Four, held that a generalstipulation by counsel metthe requirements of section 1192.5. Relying on the reasoning ofPeople v. Watts, supra, 67 Cal.App.3d 173, the court noted that the analogousfactual basis requirementin Federal Criminal Procedure Rule 11 did not require a particular type of inquiry; that rule permitted the court to base its finding on statements made by the defendant, his counsel, or the | prosecutor. (/bid.) 22 In People v. Willard, supra, 154 Cal.App.4th at page 1335, the Third District Court of Appeal disagreed, holding that a stipulation by counsel to a factual basis without reference to supporting documents in the record was insufficient. Relying on the dissenting opinion in McGuire, the Willard court reasonedthat a general stipulation provided no more information about the underlying crimethan the pleaitself. (/bid., citing People v. McGuire, supra, | Cal.App.4th at pp. 284-287 (dis. opn. of Poché,J.) Examination of the policy goals underlying the factual basis inquiry demonstrates that the McGuire opinion is correct, and that a general stipulation by counselis sufficient to satisfy the requirements of 1192.5. Asthe court noted in People v. Watts, supra, 67 Cal.App.3d 173, 178, the primary purpose for the factual basis requirementis to preventa legally unsophisticated defendant from pleading guilty whenhis actions do not constitute a crime. “Inquiry into the factual basis for the plea ensuresthat _ the defendant committed a crimeatleast as serious as the one to which he is willing to plead.” (/bid.) When the defendant is represented by counsel whenentering his plea, the policy concernsreflected in the statute are adequately addressed. ° Quoting from the commentary to a draft proposal for guilty plea procedures proposed by the American Bar Association, Watts identified other benefits resulting from a detailed factual basis inquiry. (Peoplev. Watts, supra, 67 Cal.App.3d at p. 178.) However, in quoting the ABA proposal, Watts was not suggesting that any other consideration was fundamental to California’s enactment of section 1192.5 requiring a factual basis. Indeed, one benefit cited by the ABA commentary wasthat a factual basis “aids correctional agencies in the performanceoftheir functions.” (Ibid.) However,this “benefit” is of dubious applicability in California, where correctional agencies might neverreceive a transcript of the factual basis colloquy, let alone use it as an aid in the performanceoftheir functions. If the Legislature believed that wasa critical consideration,it morelikely would have made probation reports—whichare far more (continued...) 23 Examination of the record in this case demonstrates that the procedure bywhich appellant entered his plea satisfies the primary policy considerations of section 1192.5. Appellant was represented by counsel. He stated that he had enoughtimeto consult with his attorney and understoodthe charges against him. (RT 8.) Counselassented to entry of the plea. (RT 5.) As noted, appellant does not contend that his counsel ~ provided ineffective assistance. Thus, there is no concern that he pleaded guilty when his conduct did not amountto a crime. Werecognize that this Court has founda stipulation by counselthat does not reference a document containing a factualbasis raised a “close[] question.” (People v. Holmes, supra, 32 Cal.4th at p. 441, fn. 8.) The foregoing analysis demonstrates that a stipulation by counsel is in itself sufficientto satisfy the policy considerations that underlie the factual basis requirement. While it may be “the better approach under section 1192.5. for a stipulation by counsel to a factual basis to be accompanied by reference to a [supporting document],” such a reference is not necessary to fulfill the requirementsofthe statute. (Ibid.) B. Stipulation by Counsel Creates a Binding Resolution of the Evidentiary Inquiry Required by Section 1192.5 Apart from a limited numberofpersonalrights, such as the right againstself-incrimination (Jn re Tahl (1969) 3 Cal.3d 122, 132), or the right to counsel (Faretta v. California (1975) 422 U.S. 806, 834), which can be waived only by the defendant, counsel has the authority to enter into a wide array of bindingstipulations on behalf ofhis client. As this Court explained in People v. Horton (1991) 54 Cal.3d 82, 95: (...continued) beneficial to correctional agencies than a factual basis colloquy— nonwaivable. 24 In the criminal context, too, counsel is captain ofthe ship. Aswesaid recently: “When the accused exercises his constitutional right to representation by professional counsel,it is counsel, not defendant, who is in charge of the case. By choosing professional representation, the accused surrendersall but a handful of ‘fundamental’ personal rights to counsel’s complete control of defense strategies and tactics.” (People v. Hamilton [(1989)] 48 Cal.3d [1142,] 1163.) ... As to these [personal] rights, the criminal defendant must be admonished and the court must secure an express waiver; as to other ’ fundamental rights of a less personal nature, courts may assume that counsel’s waiver reflects the defendant’s consentin the absence of an express conflict. (People v. Guzman (1988) 45 Cal.3d 915, 936.) Stipulations are commonly used to avoid the delay, trouble, or expense resulting from the need to prove certain facts, and also to avoid unnecessary prejudice to the accused. (See Fireman’s Fund Ins. Co.v. Workers’ Comp. Appeals Bd. (2010) 181 Cal.App.4th 752, 763; People v. Gambos (1970) 5 Cal.App.3d 187, 194.) A stipulation need not be justified or based on evidence. (Cf. County ofSacramento v. Workers’ Comp. Appeals Bd. (2000) 77 Cal.App.4th 1114, 1118.) “Evidentiary stipulations have long been recognizedastactical trial decisions which counsel has discretion to make without the express authority of the client.” (Peoplev. Adams (1993) 6 Cal.4th 570, 578.) Counsel maystipulate to factual elements of a criminal charge, such as an admission that a defendant had knowledge the narcotic nature of a substance (People v. Washington (1979) 95 Cal.App.3d 488, 491-492), or that a defendant charged with being a felon in possession of a firearm wasin fact anex-felon (People v. Fisk (1975) 50 Cal.App.3d 364, 371). Such stipulations resolve contested issues standing by themselves, and do not require reference to additional documentary support. (See People v. Adams, supra, at pp. 578-579; People v. Horton, supra, 54 Cal.3d at p. 95.) 25 Stipulations are not permitted only in limited circumstances. For example, parties may notstipulate to the abridgementofa statute designed to protect public welfare. (See, e.g., Mary R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308, 316-317 [parties could not stipulate to confidentiality _order shielding doctor accused of misconduct from investigation by the state medical board].) Nor mayparties attempt to manipulate the jurisdiction ofthe court via stipulation. (See, e.g., In re Jaheim B. (2008) 169 Cal.App.4th 1343, 1348 [parties cannot stipulate to expandjurisdiction ofjuvenile court]; Hill v. City ofClovis (1998) 63 Cal.App.4th 434, 445 [parties cannot stipulate to vest jurisdiction in an appellate court where noneexists].) Stipulating to a factual basis for a plea is akin to an evidentiary stipulation, which counsel may enter into on behalf of his client. (See People v. Adams, supra, 6 Cal.4th at p. 578.) ® As noted,there is no constitutional requirementfor a factual basis finding upon entry of a guilty plea. (People v. Hoffard, supra, 10 Cal.4th at p. 1183.) The factual basis requirementis a statutory right limited in scope. It applies only to negotiated pleas, not to unconditional pleas. (Jd. at pp. 1181-1182.) It does not apply to misdemeanorpleas. (Ballard v. Municipal Court (1978) 84 Cal.App.3d 885, 894.) A court makinga factual basis finding may rely on statements by counseland need not inquire of the defendant himself when making its determination. (People v. Watts, supra, 67 Cal.App.3dat p. © Tn People v. French, supra, 43 Cal.4th 36, 52, this Court noted that a stipulation to a factual basis may not constitute a binding admissionfor all purposes. While a factual basis stipulation may be insufficient to satisfy a defendant’s Sixth Amendmentright to a jury trial on facts that would increase hispotential sentence,it is sufficient to satisfy the statutory right to a factual basis inquiry. Additionally, a defendant whostipulates maystill withdraw his plea under Section 1018, or may argue that his waiverof rights was not knowing and voluntary. 26 180.) The factual basis finding does not operate as a conviction in the same mannerasthe pleaitself, which must be made personally by the defendant. (See Boykin v. Alabama, supra, 395 U.S. at pp. 242-243.) The statute is intended to benefit only the defendant, by preventing him from entering a guilty plea when his conduct does not amount to a crime. The factual basis requirementprovides no public benefit. The district attorney, who makes charging decisions and is aware of the defendant’s actions and what he stands accused of, represents the public interest in the proceedings. Stipulations are commonly usedto prevent potential prejudice to the defendant, and there may be a numberof reasons why defense counsel choosesto stipulate to a factual basis without-referring to available documents providing additional details about the offense. In cases where there is no stipulated sentence, counsel may fear that the police reports will demonstrate the existence of aggravating factors and cause the court to imposea higher sentence. Or, if the police reports indicate that the crime wasserious and the defendant has negotiated a sentence of probation, counsel may be concernedthat the court could reject the plea bargain all together. Similarly, in sensitive cases involving inter-family violence and abuse, a defendant may wantto avoid having confidential information about the victim becomepart of the public record in the case. Thus, like many other evidentiary questions affecting a defendant’s rights, a stipulation by counselis a binding resolution of the factual inquiry upon whichthe court mayrely. A stipulation to a factual basis should be treated no differently than any other evidentiary stipulation by counsel which binds the defendant and conclusively resolves the facts in dispute. The Court of Appeal correctly concluded that counsel’s stipulation was sufficient to satisfy the factual basis requirementof section 1192.5. 27 CONCLUSION For the foregoing reasons, respondent respectfully requests that the judgmentbe affirmed. Dated: January 25, 2013 SF2012205290 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General JEFFREY M. LAURENCE Deputy Attorney General AledCarb ALISHA M. CARLILE Deputy Attorney General Attorneysfor Respondent 28 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S ANSWER BRIEF ON THE MERITSusesa 13 point Times New Romanfont and contains 9,193 words. Dated: January 25, 2013 KAMALA D. HARRIS Attorney General of California pishs.Carb ALISHA M. CARLILE Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. David E. Palmer No.: 8204409 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On January 25, 2013, I served the attached RESPONDENT’S ANSWERBRIEF ON THE MERITSbyplacingtrue copies enclosed in sealed envelopes in the internal mail collection _ system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Jean M. Marinovich Santa Clara Superior Court Attorney at Law Criminal Division - Hall of Justice Post Office Box 2079 Attention: Criminal Clerk's Office Aptos, CA 95001-2079 (2 copies) 191 North First Street San Jose, CA 95113-1090 Sixth District Appellate Project Attn: Executive Director 100 North Winchester Blvd., Suite 310 Santa Clara CA 950590 The Honorable Jeffrey F. Rosen District Attorney Santa Clara District Attorney's Office 70 W. Hedding Street San Jose, CA 95110 © Sixth Appellate District Court of Appeal of the State of California 333 West Santa Clara Street, Suite 1060 San Jose, CA 95113 I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on January 25, 2013, at San Francisco, California. J. Espinosa V7 2D OO +7A__- LyeDeclarant Signature SF2012205290 20659269. doc