NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 011676790)
On February 13, 2014, the Contra Costa District Attorney charged appellant, Dylan Michael Wilson, with two felony counts of reckless driving (Veh. Code, §§ 23103, subd. (a), 23105), alleging that in the commission of those offenses he personally inflicted great bodily injury upon John Dunbar and Joanna Klasa. (Pen. Code, § 12022.7, subd. (a).) The second count was charged as a strike offense. The offenses arose from an automobile collision on October 21, 2013. Dunbar was the driver of the vehicle appellant collided with, Klasa was a passenger in appellant's car.
All statutory references are to the Vehicle Code unless otherwise indicated.
On October 23, 2014, the day set for the preliminary hearing, appellant entered a conditional plea pursuant to a negotiated disposition. In return for his plea of no contest to the first count, the prosecution agreed to dismiss the second count, subject to a Harvey waiver, and also the associated strike allegation and great bodily injury enhancements pertaining to both counts. The indicated sentence, which was imposed, required appellant to serve a jail term of 240 days, of which 60 would be in custody and the remainder served under electronic home detention, and placement on formal probation for three years.
People v. Harvey (1979) 25 Cal.3d 754.
On January 30, 2015, when represented by new counsel, appellant filed a motion to withdraw his no contest plea (Pen. Code, § 1018), which was denied after a hearing. On April 27, 2015, appellant moved for reconsideration of that ruling, and that motion was also denied. Appellant's request for a certificate of probable cause was granted and he filed a notice of appeal that day.
Appellant contends denial of his motion to withdraw his plea must be reversed because the court failed to establish a factual basis for the plea, appellant did not receive the effective assistance of counsel and his plea was not voluntary, knowing, and intelligent.
We shall find that at the time he entered his plea appellant did not receive the effective assistance of counsel to which he was entitled under the Sixth Amendment, and denial of his motion to withdraw the no contest plea was therefore error. That finding renders it unnecessary to resolve appellant's other claims.
FACTS AND PROCEEDINGS BELOW
The report of the Contra Costa County Sheriff's Office provides the best description in the record of the circumstances of the underlying offense, which took place on October 21, 2013.
Deputy Sheriff Zach Williams stated that when he arrived at the scene at 8:24 a.m. he observed that appellant "had bloodshot, red watery eyes and had the odor of an alcoholic beverage emitting from his breath and person." Appellant told Deputy Williams "that he works as a bartender back at the Holy Cow Bar in San Francisco." He had worked all night and during that period had "consumed beers at the rate of about one per hour." Appellant "said he was tired from working all night . . . he doesn't know what happened but that he might have 'dozed off.'" Asked what he meant, appellant said "he may have fallen asleep while driving," adding that his girlfriend, Joanna Klasa—who suffered broken ribs, back pain, a spinal trauma injury, as well as abrasions and lacerations —was asleep in the passenger seat of the vehicle. Appellant didn't remember exactly what happened but told Deputy Williams he was in a collision, stating: " 'It just happened.' "
Wilson agreed to two Preliminary Alcohol Screening tests (PAS tests). The first showed a blood alcohol content (BAC) of .088 percent at 8:53 a.m. and the second, taken two minutes later, resulted in a BAC reading of .089 percent. A later test of blood taken from appellant at 10:20 a.m., about two hours after the incident, showed a BAC of 0.05 percent.
John Dunbar, the driver of the car appellant hit, who suffered a separated and broken clavicle, as well as a separated shoulder, said he was driving north on Moraga Way "when without warning [appellant's] black Nissan drove into his lane and hit him head on." Dunbar provided no other description of the manner in which appellant was driving. Deputy Williams did not interview Joanna Klasa, the other victim, or any other person who witnessed appellant's driving or the collision.
Deputy Williams reported that "[b]ased on the objective signs and symptoms of being under the influence of an alcoholic beverage I observed in Wilson, his admission to driving his vehicle, the results of the preliminary screening tests, and the collision in which he was involved, causing injury to himself and multiple parties, I placed Wilson under arrest at 0928 hours for violation of CVC 23153 DUI CAUSING INJURY, a FELONY [felony driving under the influence and causing injury]." Deputy Williams then read appellant his Miranda rights but did not question him further, though he confiscated appellant's driver license and later forwarded it to the Department of Motor Vehicles. After appellant was taken to the Contra Costa Regional Medical Center for medical treatment, Deputy Williams transported him to the Martinez detention facility, into which he was booked on the DUI charge.
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant was arrested, and booked into jail only for DUI in violation of section 23153, no law enforcement officers ever inquired whether appellant may have committed any other offense, and appellant was never charged by the district attorney with violation of section 23153. As we have said, the complaint charged appellant only with two felony counts of reckless driving causing injury to others in violation of sections 23103 and 23105.
Appellant ultimately pled guilty to one count of felony reckless driving, pursuant to sections 23103, subdivision (a), and 23105. Additional facts relating to the plea proceedings are described in connection with our discussion of the pertinent legal principles.
On January 30, 2015, about three months after he entered his plea, appellant filed a motion to withdraw the plea "on the ground[s] that defense counsel rendered ineffective assistance and thus deprived defendant of his Sixth Amendment right to the assistance of counsel, the plea was not voluntary, knowing, or intelligent, and there was no factual basis for the plea." Appellant's motion also claimed that he was factually innocent of the offense to which he pled no contest.
The motion was supported by appellant's three-page declaration, which states in its entirety as follows:
"During the time Mr. Moyal represented me I saw him between 8-10 times when I would drop off money for my bill. Each meeting was very brief. I asked him numerous times about the status of my case and his general response was always along the lines of, 'I'm dealing with it, I'm talking with the DA, I got you covered.'
"Mr. Moyal never went over the police report or other evidence with me. Mr. Moyal never provided me with a copy of the charging document that had been filed. Mr. Moyal told me that I had been charged with a felony DUI with great bodily injury on two counts. He explained to me that the 'great bodily injury' was the only part that makes the case against me have severe consequences. He never discussed the elements of the charge, any defenses or the possible sentence I would receive or any other consequences.
These statements contradict the representation of appellant's original attorney, Kenneth Moyal, who signed the "Attorney's Statement" at the end or the plea form thereby attesting that he was attorney of record for appellant, that he had reviewed the form with him, and that "I have explained each of the defendant's rights to the defendant and answered all of the defendant's questions with regard to this plea. I have discussed the facts of the defendant's case with the defendant, and explained the consequences of this plea, the elements of the offense(s), and the possible defenses. I concur in this plea and in the defendant's decision to waive constitutional rights," and, finally, counsel stipulated "that there is a factual basis for the defendant's pleas."
"On October 1, 2014, while heading to work on my motorcycle, I was involved in a serious accident when a car travelling in the opposite direction suddenly attempted to make a U-turn 15 yards in front of me. I careened into the car and the handlebar from my bike impaled the right side of my abdomen before I was thrown up at least 10 feet high and 45 feet away. I was not at fault and in no way caused the accident. I was transported to John Muir Medical Center where I underwent surgery. The accident left me in severe pain and I sustained the following injuries: an impale wound, a fracture in the middle vertebrae in my back, my appendix was removed, my colon and intestines had to be repaired for tears, bruising from the impact, I had three broken toes, fractures in my hand, torn tendons in my fingers, and a laceration requiring stitches on my right knee.
"I was in the hospital for five days before being released. My doctor ordered me to stay on complete bed rest. I was also prescribed hydrocodone for the pain, which was excruciating and debilitating. The pain and my injuries were so severe I could barely walk and I even had trouble going to the restroom. Weeks later I would also get an infection.
"I attended a hearing on October 23, barely 2½ weeks after leaving the hospital. I had been bed-ridden and unable to move from [sic] due to the pain following my release from the hospital. I used public transportation to attend the hearing. At the time of the hearing I was on hydrocodone for pain and I was also taking a prescription muscle relaxer.
"Mr. Moyal was late to the hearing and never told me what type of hearing it was or that a plea deal had been reached until he arrived in court. The matter was called and I plead No Contest, taking my cues from Mr. Moyal because I felt I had no choice and was unable to truly comprehend what was going on given the pain I was in. I was also given some forms to sign, but Mr. Moyal did not at any time go over the form with me, he simply told me where to initial and sign. I did as he said because he was the lawyer and I thought he knew what he was doing and had my best interest.
"I never had an opportunity to read the police report myself. I did receive the police report around the end of September 2014, shortly before my motorcycle accident. Prior to my accident I did not have a chance to read the report myself because I was working and trying to get enrolled in St. Mary's College. I was planning to go through it but then I had my accident. Following my accident I was not in the physical or mental condition to read or understand the report and I took my attorney's word that he was handling the matter because I trusted him.
"I have a new attorney, David Larkin. I initially hired Mr. Larkin to assist me with requesting the court move the date I was required to turn myself in due to my medical condition. I had asked Mr. Moyal first but he simply wanted more money. It was when I hired Mr. Larkin that I learned that I had not been charged with a DUI but rather with reckless driving. It was also when I met with my new attorney that I realized Mr. Moyal simply pled me to the charges filed against me.
"I do not think Mr. Moyal ever understood the charges against me—that I had been charged with reckless driving rather than a DUI—and I do not think he ever read the police report and reviewed the blood test results in light of the charges against me. This is because immediately after meeting with my new attorney I phoned Mr. Moyal to ask him why he advised me to plea to charges that were unsupported by the evidence. He said the PAS test of .08 supports the charge. I asked him about the blood result of 0.05. He appeared surprised and said, 'Oh, you're going to have to show me that.' Until meeting with Mr. Larkin, I did not know that my blood test result was 0.05%.
"If I had known the actual charges against me were reckless driving and that it required that the People prove I acted with willful or wanton disregard for the safety of others, and had I been informed of the full evidence and factual basis requirement, I would not have pled to the charges. I was not driving recklessly when this accident happened. It was simply an accident."
After the court denied the motion to withdraw the plea, appellant timely commenced this appeal.
Appellant's Claim That There is No Factual Basis for his Plea
Penal Code section 1192.5 provides that for a conditional plea of guilty or no contest, the trial court is required to "cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made and that there is a factual basis for the plea." The purpose of the factual basis requirement " ' "is to protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in the law to recognize that his acts do not constitute the offense with which he is charged." ' " (People v. Palmer (2013) 58 Cal.4th 110, 112 (Palmer).)
"[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty [or no contest] plea" (People v. Holmes (2004) 32 Cal.4th 432, 443 (Holmes)), and the abuse of discretion standard of review also applies to the related claim of an erroneous denial of a motion to withdraw a plea. (Id. at pp. 442-443; In re Brown (1973) 9 Cal.3d 679, 684.)
As stated by the Supreme Court in Holmes, the factual basis required by Penal Code section 1192.5 is no more than the establishment of a prima facie basis for the charges. "[T]he trial court must garner information regarding the factual basis either from the defendant or defense counsel. If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge [citation], or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. [Citation.] If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.]" (Holmes, supra, 32 Cal.4th at p. 442.) Holmes does not hold, but it has been interpreted as strongly suggesting that " 'absent reference to a particular document that provides an adequate factual basis,' " a bare stipulation to a factual basis of the sort solicited and received in this case is inadequate as it " 'reveals no more of a factual basis supporting the plea than the plea itself.' " (People v. Willard (2007) 154 Cal.App.4th 1329, 1339 (Willard), quoting People v. McGuire (1991) 1 Cal.App.4th 281, 286 (McGuire) (dis. opn. of Poche, J.).) Thus, Holmes simply states that "the better approach under section 1192.5 is for a stipulation by counsel to a factual basis to be accompanied by reference to a police report." (Holmes, p. 441, fn. 8.)
Holmes also referred to Justice Poche's dissent in McGuire, but felt it had "no occasion to decide whether McGuire is correct." (Holmes, supra, 32 Cal.4th at p. 441, fn. 8.)
Palmer addresses the question left open by Holmes; namely, "whether counsel's bare stipulation, without reference to any document describing the underlying facts, sufficiently establishes a factual basis for the plea." (Palmer, supra, 58 Cal.4th at p. 114.) The defendant in Palmer pled no contest to a drug charge and his counsel stipulated to the existence of a factual basis for the plea without referring to any document supporting the stipulation. Finding no abuse of discretion in the finding of a factual basis and acceptance of the plea, the Court of Appeal affirmed the judgment. (Id. at p. 113.) The Supreme Court affirmed the Court of Appeal, finding it sufficient that defense counsel and the prosecutor, both officers of the court, stipulated to a factual basis for the plea, defendant affirmed during voir dire that he had discussed the elements of the crime with his counsel, and that he was satisfied with her advice and the defendant had never asserted his innocence. On the record before it, the Palmer court found that the bare stipulation "satisfied the requirements of section 1192.5, and the trial court acted within its discretion in accepting defendant's plea. (Palmer, at p. 119.)
Appellant maintains that a bare stipulation is inadequate in this case on the grounds that (1) counsel could not, even if he had wanted to, provide any document or other evidence of the offense to which he pled because such evidence was wholly absent from the record, and (2) appellant never participated in a plea colloquy in which he revealed that he had discussed the elements of the crime and defenses with counsel, as had the defendant in Palmer.
Conceding that the record—specifically, the sheriff's report—provides an adequate factual basis for the charge that appellant committed the offense of DUI in violation of section 23152, appellant emphasizes not only that DUI is not charged in this case, but that the offense of reckless driving is "separate and distinct from that of [DUI], and . . . there must be some evidence which would justify a finding of the intentional doing of some unlawful act or acting with a reckless disregard of the consequences" and "in the absence of such proof, no conviction thereof may stand." (People v. Thurston (1963) 212 Cal.App.2d 713, 716. "The driving of an automobile while under the influence of intoxicating liquor does not, in and of itself, constitute a willful or wanton disregard of the safety of persons or property. [Citation.] Moreover, more than negligence, even if the negligence be gross in nature, must be shown if reckless driving is to be established. [Citations.]" People v. Schumacher (1961) 194 Cal.App.2d 335, 338-339 (Schumacher).) There is no such evidence of intentionality or willfulness, appellant maintains, because the record shows only that he had been drinking at work and fell asleep at the wheel.
Appellant's claim that the record does not provide an adequate factual basis for appellant's plea to reckless driving cannot easily be dismissed. In any case, whether the trial court erred in accepting appellant's plea on the basis of a bare stipulation and without inquiry turns on the application to this case of Palmer, about which the parties disagree. We preface our discussion of Palmer with a description of the plea proceedings in this case.
The taking of appellant's plea consumed little time. After the court determined that appellant made a valid Harvey waiver, set the amount of restitution he would be required to pay one of the victims, declared that formal probation would be ordered, and calculated the custody credits to which appellant was entitled, the following colloquy took place between the court, appellant, and his counsel:
"THE COURT: All right. Mr. Wilson, do you understand the disposition outlined here on the record by the attorneys?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: Do you have any questions?
"THE DEFENDANT: No, your Honor.
"THE COURT: Did you understand everything on the plea form?
"THE DEFENDANT: Yes, your Honor.
I.e., the rights to a speedy and public trial by a jury; confront and cross-examine adverse witnesses; present evidence and call witnesses and subpoena evidence or witnesses and compel their presence in court; remain silent and not to be compelled to testify against himself. In all, the four-page plea form contained 25 other items describing as many consequences of a guilty or no contest plea, and three items regarding the voluntariness of the plea: that (1) aside from what was promised in open court, he has not been promised anything that cause him to enter a guilty or no contest plea; (2) no threat has been made against him or anyone close to him that causes him to enter such a plea; and (3) "[m]y mental abilities are not now impaired in any manner by prescription or nonprescription drugs, alcohol, or for any other cause"; that "I am completely alert and sober, and am fully able to understand these proceedings."
"THE DEFENDANT: Yes, your Honor.
"THE COURT: Are you waiving your rights freely and voluntarily because this is what you want to do?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: Mr. Moyal, do you join and concur in your client's waiver?
"MR. MOYAL: I do.
"THE COURT: The court accepts the waivers, finds they're expressly, intelligently and voluntarily made.
"What plea do you enter to felony reckless driving with specific injury, as charged in count 1?
"THE DEFENDANT: No contest.
"THE COURT: Counsel, stipulate to a factual basis for the plea?
"MR. MOYAL: I do."
"THE COURT: The court accepts the plea of no contest to count 1, I find the defendant guilty on that . . . count."
The opening paragraph of appellant's motion to withdraw succinctly states its essence: "Mr. Wilson, was driving during a late-night shift when he fell asleep at the wheel and injured two individuals. There is no evidence [Wilson] acted with criminal intent. That is because what happened was not criminal. Rather what happened was an accident. At best Wilson was negligent in driving. Unfortunately, Wilson retained counsel who did not appreciate his lack of culpability and instead of zealously advocating on his behalf, led him to believe that he had been charged with a crime different than the actual charge and that the People had sufficient evidence to meet their burden. Based on Wilson's reliance on his attorney and his subsequent ignorance of the true charges and evidence, his attorney advised him to capitulate to criminal charges by pleading without the support of a factual basis."
At the commencement of the hearing the court described its disappointment at the "conspicuous absence" of any explanation by counsel for appellant at the time of the plea of the information and advice he provided or failed to provide his client. Given appellant's representations that he "was not advised of the charges against him and was told it was something other than what it actually was, I would think the attorney could easily refute that or confirm that. . . . [¶] It would be extremely persuasive if the attorney filed an affidavit and owned up to these suggested deficiencies; [if] the attorney said[:] It's true I never advised him of the true charges. It's hard to imagine, but that would be compelling. And the fact that that's not here makes it more difficult to accept Wilson's representation."
Apparently influenced by the absence of an affidavit from Moyal confirming appellant's claim that he provided ineffective legal assistance, the court rejected the claims set forth in appellant's sworn statement. The court also felt that "the People have correctly, and fairly convincingly, directed the court to the written plea form, which does set forth a number of sections that seem to substantially defeat the motion." The three items in the plea form the court presumably focused upon, all of which appeared under the rubric "Factual Basis of the Plea," were paragraphs 36, 36a, and 37. Item 36, which is required to be initialed by a defendant like appellant who is represented by counsel, is that "I have discussed the contents of the police reports and investigative reports with my attorney. I am satisfied that I know the evidence that could be used against me in trial, as well as any possible defenses to these charges." Item 36a, which appellant initialed despite the fact it pertained only to defendants who unlike him are "in pro per," declares that "I have read the police reports and I am satisfied that I know the evidence that could be used against me to these charges, as well as any possible defenses." Item 37 on the plea form states that "I believe and agree that a jury or judge who heard the evidence against me could find me guilty of the charges to which I am pleading guilty/no contest."
Although counsel who stipulated to a factual basis for appellant's plea did not refer to any document or other evidence in the record, and the plea form appellant initialed and signed did not refer to any facts pertaining to appellant's conduct in operating his automobile, the trial court reasoned that a factual basis for the plea could be inferred from appellant's statements that he had been drinking, was tired, and "dozed off" while driving. As the court stated: "getting behind the wheel of a car not having slept for a period of time and have some question in your mind whether you, in fact, can make it to where you wanted to go and you decide to roll the dice and see, that would, in fact, be reckless driving. If you weren't certain that you could stay awake for the duration of time that it took to get to where you were going, you have a duty to not drive under those circumstances. So the court believes not only would it get passed [sic] preliminary hearing, but you could be convicted of exactly that. If you fall asleep knowing that that's a significant possibility, you're accountable for that. Both civilly and criminally."
The court's statements that appellant "had some question in his mind" whether he could "stay awake for the duration of time that it took to get to where you were going" and knew that falling asleep at the wheel was "a significant possibility," is not based on anything in the sheriff's two brief reports," or anything else in the record, and is speculative. Moreover, the court's statement suggests it was unaware that a person can be convicted of felony reckless driving only upon evidence that he or she intentionally committed an unlawful act with reckless disregard for the consequences, and that negligence, even gross negligence is not the "willful or wanton" conduct necessary to convict a defendant of felony reckless driving in violation of section 23103. (Schumacher, supra, 194 Cal.App.2d at pp. 338-339 and cases there cited.) Given doubt about the adequacy of the factual basis inferred by the trial court, the court's failure to require appellant or his counsel to describe the criminal conduct to which appellant was willing to plead no contest or identify a document that provides an adequate factual basis—which Holmes and Palmer both refer to as the "better approach" (Holmes, supra, 32 Cal.4th at p. 440, fn. 8; Palmer, supra, 58 Cal.4th at p. 118)—is troubling; as is the court's failure to ask the district attorney to stipulate, if he could, to the factual basis for appellant's plea on the basis of a document or other evidence. In any case, as will be seen, the Supreme Court's opinion in Palmer appears to have relieved the court of the responsibility to make any such inquiry where, as here, defense counsel stipulates that a factual basis exists, even though counsel neither recites facts nor refers to a document that provides an adequate factual basis.
Appellant argues that, as stated in Willard, "counsel's stipulation 'reveals no more of a factual basis supporting the plea than the plea itself. Nor is this case analogous to the situation where the parties stipulate that certain documentary evidence in the record can serve as the factual basis for the plea. There is a significant distinction between a stipulation that a specific document can be considered as containing the factual basis, . . . and a general stipulation that a factual basis simply exists, as we have here. The former provides a concrete set of facts in the record, which can be reviewed by the appellate court to determine its adequacy. The latter provides nothing to assure the appellate court or the trial court of the adequacy of the factual basis supporting the plea.' [Citation.]" (Willard, supra, 154 Cal.App.4th at p. 1335, quoting with approval the dissent in McGuire, supra, 1 Cal.4th 281 at p. 286 (dis. opn. of Poche, J.).)
When counsel pointed out that the court did not ask Moyal "to stipulate to a particular document that provides an adequate basis," the trial court claimed that "we did that," explaining that it asked counsel whether he concurred in appellant's representation in the written plea form that he had discussed the content of the police and other investigative reports with his attorney and knew the evidence that could be used against him in trial, as well as possible defenses. The court stated that in "every plea I've ever taken . . . I ask the attorney do you join and concur in your client's [verbatim] waivers. I have never taken a plea where I have not asked the attorney expressly that." Indeed, the court made such a request of counsel when it took appellant's plea. As indicated, after the court asked appellant "[a]re you waiving your rights freely and voluntarily because this is what you want to do?" and appellant said "yes," the court turned to counsel and said: "Mr. Moyal, do you join and concur in your client's waiver?" and counsel stated "I do."
The trial court's conclusion that counsel's joinder and concurrence in appellant's waiver provides a factual basis for his plea was contested by appellant on the grounds that neither the plea form nor appellant's brief oral waiver in court referred to facts indicating appellant may have violated section 23103, and such evidence is entirely missing from the record. There was no preliminary hearing or probation report. Nor is the complaint helpful, because it only alleges the names of appellant and the victims. The remainder of the complaint simply tracks the elements of the charged offense and does not contain factual allegations. The primary document in the record pertaining to appellant's conduct as a driver is the sheriff's report. But because Deputy Williams considered the violation to be a DUI, not reckless driving, and there appears to have been no witnesses to appellant's driving other than Dunbar, who was not very informative, Williams's report says almost nothing about the manner in which appellant was driving other than that he drove into the oncoming lane.
Appellant's contention that the record contains no evidence he drove his vehicle "with knowledge that injury to another was probable or acted with a wanton and reckless disregard for the safety of others and in reckless disregard of the consequences of his acts," which would be required in order to convict him of violating section 23101 (People v. Thurston, supra, 212 Cal.App.2d at p. 716; Schumacher, supra, 194 Cal.App.2d at pp. 338-339), does give us pause; and under the interpretation of Holmes adopted in Willard, that argument might well prevail.
However, that argument appears to have been rejected by the Supreme Court in Palmer.
After concluding that a claim that a trial court failed to establish a factual basis for a plea under Penal Code section 1192.5 is cognizable on appeal when defense counsel stipulated to a factual basis, the Palmer court addressed the issue left open in Holmes, which is whether a bare stipulation without reference to any document describing the facts may, in an appropriate case, satisfy the requirements of Penal Code section 1192.5. The court answered the question in the affirmative, agreeing with the People "that a stipulation to a factual basis for a plea is akin to an evidentiary stipulation, the making of which is a tactical decision entrusted to trial counsel, and which is conclusive without reference to additional evidentiary support." (Palmer, supra, 58 Cal.4th at p. 117.)
The Palmer court observed that, as stated in Holmes, "[t]he purpose of the factual basis requirement is to help ensure that the constitutional standards of voluntariness and intelligence are met" (Palmer, supra, 58 Cal.4th at p. 118), and although Penal Code section 1192.5 requires the inquiry to be made of the defendant, a " 'stipulation by counsel to the plea's factual basis is consistent with the legislative purpose of the statute. While defendant may not be in a position to recognize whether his acts do or do not " 'constitute the offense with which he is charged,' " [citation], defense counsel is well suited to make such a determination.' [Citation.] We said the 'better approach' in this circumstance is for counsel's stipulation to include reference to a particular document that provides an adequate factual basis, but we did not hold such reference is required. [Citation.] We now make clear that, while inclusion of such reference in the stipulation is desirable as a means of eliminating any uncertainty regarding the existence of a factual basis, the trial court may satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record where, as here, the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsel's advice." (Palmer, at p. 115.)
The foregoing statement, which essentially endorses the majority opinion in McGuire, cannot be reconciled with Willard, the case appellant relies upon most heavily, which adopted the reasoning of the dissent in McGuire. Like the McGuire majority, Palmer justified the acceptance of a bare stipulation by counsel on the ground that it "is consistent with defense counsel's broad authority to stipulate to factual and procedural matters on his client's behalf. . . . [Citation.] . . . [Citations.] Stipulations obviate the need for proof and are independently sufficient to resolve the matter at issue in the stipulation." (Palmer, supra, 58 Cal.4th at p. 118, citing County of Sacramento v. Workers' Comp. Appeals Bd. (2000) 77 Cal.App.4th 1114, 1118-1119.)
It is at least arguable that Palmer may be factually distinguishable from this case. The final paragraph of Palmer justifies the court's conclusions that the defense counsel's bare stipulation satisfied the requirements of section 1192.5, and the trial court acted within its discretion in accepting defendant's plea, on the grounds that "defense counsel, and the prosecutor, both officers of the court, stipulated to a factual basis for defendant's plea. Defendant affirmed during voir dire that he had discussed the elements of the crime with his counsel, and that he was satisfied with counsel's advice," and "[a]t no time did he protest his factual innocence." (Palmer, supra, 58 Cal.4th at p. 119.) Except for the fact that defense counsel in this case also stipulated to a factual basis for the plea, none of the other factors present in Palmer are present here: the prosecutor in this case did not stipulate to a factual basis, appellant was not questioned by the court about his discussions with counsel, or anything else, and most important, appellant overtly protested his factual innocence of the offense to which he pled. Another factual difference between this case and Palmer is that, as the trial court was aware, appellant was arrested and booked for an offense different from the one he was charged with, which was never investigated, thereby creating greater doubt about the existence of a factual basis for the plea than is usually present.
It is unclear whether the Palmer rule applies to the somewhat different circumstances in this case, and the question presents knotty issues. Appellant's briefing of this issue, which undeservedly gives short shrift to Palmer, is not helpful. Fortunately, we need not decide whether the facts of this case are so different from those of Palmer that we could conclude that the bare stipulation of counsel did not satisfy the requirement of section 1192.5, because there is another basis upon which we can more easily decide this case.
Appellant's Claim of Ineffective Assistance of Counsel
Appellant's subsidiary claim, that at the time he entered his plea he lacked the effective assistance of counsel, has merit.
"Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. [Citations.] 'It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.' [Citations.]" (In re Resendiz (2001) 25 Cal.4th 230, 239, fn. omitted.)
Penal Code section 1018 provides that "[o]n application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice." Appellant's motion to withdraw his no contest plea was timely under section 1018.
"To prevail on a motion to withdraw a guilty plea, a defendant must establish good cause by clear and convincing evidence. [Citation.] 'Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.]' [Citation.]" (People v. Perez (2015) 233 Cal.App.4th 736, 741 (Perez).) "A trial court's decision to deny a motion to withdraw a guilty plea is final absent an abuse of discretion. [Citation.] Ordinarily, '[w]e " ' "presume in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence." ' " ' [Citation.] Additionally, if the ruling below is correct ' " 'upon any theory of the law applicable to the case., it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' " ' [Citation.]" (Ibid.) Opinions holding it was error to deny a motion to withdraw a plea of guilty or no contest due to ineffective assistance of counsel, are not unusual. (See, e.g., People v. Garcia (1991) 227 Cal.App.3d 1369 (Garcia), disapproved on another ground in People v. Smith (1993) 6 Cal.4th 684, 696; People v. Harvey (1984) 151 Cal.App.3d 660, 671; People v. McGarvy (1943) 61 Cal.App.2d 557, 562.) As will be seen, appellant's ineffective assistance claim is not defeated by these principles.
In Garcia, supra, 227 Cal.App.3d 1369, after the defendant pled no contest to a charge of felony assault, counsel informed the court that the defendant wished to withdraw his plea. At a hearing on a Marsden motion, the defendant explained that he was dissatisfied with counsel because of his refusal to present the motion to withdraw the plea, conflicts in the attorney-client relationship, and ineffective representation. The trial court denied the Marsden motion and the defendant, acting in propria persona, filed a petition for a writ of habeas corpus requesting withdrawal of the plea and substitution of counsel. Before the writ petition was ruled on, the trial court heard the defendant on the motion to withdraw the plea, denied the motion, and imposed a five-year prison term in accordance with the plea agreement. The Court of Appeal held that the defendant was deprived of his right to counsel by counsel's refusal to bring the withdrawal-of-plea motion and by the trial court's requiring him to proceed in a pro. per. basis as to the motion.
The court stated that where, as in the present case, a defendant seeks to withdraw a plea on the ground his attorney failed to provide adequate representation, the trial court should follow a procedure comparable to that we prescribed in People v. Stewart (1985) 171 Cal.App.3d 388, disapproved on another ground in People v. Smith, supra, 6 Cal.4th at page 696. That is, "[t]he trial court should first elicit and consider the defendant's reasons for believing he has been ineffectively represented, making such inquiries of the defendant and trial counsel as appear necessary in open court or, if the trial court deems necessary, at an in camera hearing. [Citation.] If the defendant presents a colorable claim that he was ineffectively represented,' the trial court should appoint new counsel 'to fully investigate and present the motion.' [Citation.] A defendant presents a colorable claim when he 'credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings.' [Citation.] If the defendant does not present a colorable claim, the court may deny the motion without providing for new counsel. [Citation.]" (Garcia, supra, 227 Cal.App.3d at p. 1377, fn. omitted, quoting Stewart, at pp. 395-398.)
The court did not in this case need to elicit appellant's reasons for believing he had been ineffectively assisted, for they were set forth in the declaration appellant submitted in support of his motion to withdraw. Those reasons presented colorable claims of the " 'possibility that trial counsel failed to perform with reasonable diligence' " in permitting appellant to enter the plea, and that the plea was not voluntary. (Garcia, supra, 227 Cal.App.3d at p. 1377.)
The declaration, which is unrefuted, establishes that on October 1, 2014, about three weeks before he entered his plea, appellant was in a motorcycle accident for which he was assertedly not responsible (in which an oncoming car making a U-turn entered his lane) causing him to be thrown 10 feet high and 45 feet away, which left him in "severe pain" as a result of "an impale wound, a fracture in the middle vertebrate in my back, my appendix was removed, my colon and intestines had to be repaired for tears, bruising from the impact, I had three broken toes, fractures in my hand, torn tendons in my fingers, and a laceration requiring stitches in my knee." Appellant was prescribed hydrocodone to ease "excruciating and debilitating" pain, and was hospitalized for five days. He was released from the hospital on October 6, shortly before he entered his plea, at which time he was taking medications for pain and to relax his muscles. Appellant's declaration represents that because of his hospitalization and surgery, the attendant pain he suffered, and the effect of his medications, he was unable during this crucial period to comprehend what, if anything, Moyal was doing on his behalf, and the significance of the documents Moyal instructed him to initial and sign. The point of the declaration is that, given appellant's physical and mental state, which was known to Moyal, his instruction of appellant to initial and sign the plea form and enter his plea fell "below an objective standard of reasonableness." (Strickland v. Washington (1984) 466 U.S. 668, 686.) Moreover, appellant maintains, the fact that no adequate factual basis for the offense to which he pled no contest was provided by appellant or by the bare stipulation of counsel, or can be found in any document or evidence in the record, establishes "a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." (Id. at p. 694.) Resting on that reasonable probability, appellant maintains he has shown good cause to be permitted to withdraw his plea.
The trial court found it "troubling" that appellant had initialed "numerous" sections of the plea form that were obviously inapplicable to him—such as acknowledgments that he was pleading to a strike, and that DMV would suspend his license—which, the court stated, "could suggest that the defendant just initialed everything on the form without reading it." The trial court also expressed great concern about the absence of any affidavit from Moyal confirming or disputing appellant's declaration. As the court stated: "what is conspicuously absent from this motion . . . is any input from the attorney, Mr. Moyal. There are allegations raised by the defendant . . . as to what he was and was not advised of, and there are specific allegations that he was not advised of a number of things . . . but there's nothing of a corroborative nature by Mr. Moyal confirming that is, in fact, the case. And that is problematic. [¶] If there's a suggestion that, among other things, the defendant was not advised of the charges against him and was told it was something other than what it actually was, I would think the attorney could easily refute that or confirm that. And I would expect to have an affidavit filed by the attorney saying yea or nay, true or not true to that fact. And the fact there isn't one is problematic, in my view. Because here we have an assertion by the defendant that runs contrary to the written paperwork in the case, and allegations that this motion should be granted because of lapses in what the attorney should have done or did or didn't do, but no input from the attorney to that fact."
The court's failure to inquire into the truth of the representations made by appellant in his sworn statement is inexplicable. As the court grudgingly acknowledged, the fact that appellant initialed many of the items on the plea form that had no application to him strongly suggests he did not understand or read the plea form and/or he had not been adequately informed by counsel of the meaning and significance of initialing and signing the form. As the court also observed, defense counsel usually cross out inapplicable items before advising the defendant of the ones he should initial. Moyal's apparent failure to do so also corroborates appellant's claim that he received little or no information from Moyal about the issues or explanation of the plea form, and that he was unaware that the offense to which he pled was not DUI, the offense for which he was arrested and booked, but felony reckless driving, which his motion to withdraw his plea claims he did not commit.
At no point during the hearing on the motion to withdraw did the prosecution question the validity of appellant's assertions about his injuries, hospitalization, surgery, and medications, and their effect on his mental state. Improperly using Moyal's failure to confirm the allegations in appellant's declaration as a basis upon which to deny appellant's motion to withdraw, the trial court conducted no inquiry into the validity of appellant's claims that his ability to enter a plea intelligently and of his own free will was overborne by the pain he was suffering and/or the effect of the prescribed painkillers he was imbibing; which could have been verified by the physicians who treated appellant and prescribed his pain medication.
People v. Goldman (1966) 245 Cal.App.2d 376, disapproved on another ground in In re Smiley (1967) 66 Cal.2d 606, 626-627, illustrates the type of inquiry that should have been made here. The defendant in that case entered a plea of guilty to a charge of attempted escape from prison and later moved to withdraw the plea on the ground he was medicated with tranquilizers at the time he pled. The trial court denied the motion and the defendant appealed on the sole ground that court-appointed trial counsel inadequately represented him by failing to offer proof, or to request a continuance for the purpose of providing proof, of an improvident plea of guilty. The Court of Appeal observed that, "[w]hile defendant's claims of psychiatric disturbance and tranquilizers were thin, they were both possible and verifiable. Inferably, defendant was transferred from Folsom Prison to the Sacramento County jail for arraignment on July 14 and again for sentencing on July 22. He could legitimately come by tranquilizers only in the course of treatment by prison doctors. The truth of his claim, the kind and quality of medication, the time of ingestion in relation to the time of arraignment and the medical effect upon his volitional capacity were matters ascertainable through prison personnel, prison records and, if necessary, medical opinion. If in fact tranquilizers were administered as a consequence of medical treatment for a physical or psychiatric condition which might have affected his plea, evidence of that fact was available" and should have been obtained. (Goldman, at p. 381.) What should have been done in Goldman needs also to be done here.
We are ordinarily required to presume in support of the judgment the existence of every fact the trier could reasonable deduce from the evidence; but that principle is unhelpful in this case because there was only the motion and supporting declaration for the court to consider. There are no facts in the record on which the judgment could be based. The prosecution did not file an opposition, and there was no response to appellant's declarations regarding the ineffective assistance he received from Moyal, his failure to understand the evidence that could be used against him and in his support, and the validity and significance of the representations he made by initialing almost all of the items on the lengthy plea form. (See Perez, supra, 233 Cal.App.4th at pp. 742-743.)
The principle that if a challenged ruling is correct upon any theory of law it must be sustained even if it was not relied upon by the trial court (People v. Zapien (1993) 4 Cal.4th 929, 976) is not helpful either, because we cannot uphold denial of the motion to withdraw without engaging in the wildest speculation to find the trial court's conclusion was correct. Aside from the fact that Moyal did not confirm appellant's claim of ineffective assistance—which should not have been considered by the court because it was no more probative than Moyal's concomitant failure to dispute that claim—the court stated no reason for concluding that the "troubling" and "problematic" representations on the plea form trumped those of the sworn statement appellant submitted in support of the motion to withdraw. Had the court found that the statements in the declaration were not credible that might justify the court's ruling. But, as in Perez, "we have no way of knowing whether that is what the court found." (Perez, supra, 233 Cal.App.4th at p. 742.)
We think it necessary to remand this case to the trial court with directions to reconsider appellant's motion to withdraw his plea in the manner prescribed in Garcia. Because, as we have found, appellant has made a colorable claim of ineffective representation, the court must permit his new counsel to " 'fully investigate and present the motion' " to withdraw his plea. (Garcia, supra, 227 Cal.App.3d at p. 1377.) At a subsequent hearing on the matter, the court should make such further inquiries as are necessary to more fully inform itself on the merits of the motion. If appellant establishes good cause for withdrawal of his plea based on trial counsel's failure to perform with reasonable diligence and/or the possibility he did not enter his plea intelligently and voluntarily, the court shall grant the motion to withdraw the plea. If appellant does not establish such good cause, the court may deny the motion.
This could include obtaining evidence of the kind discussed in People v. Goldman, supra, 245 Cal.App.2d at page 381, such as hospital records and medical opinion. It might, perhaps, also include making an inquiry of Moyal himself. --------
The judgment is set aside for the limited purpose of permitting appellant's motion to withdraw his plea of no contest to be reconsidered in a manner consistent with the views expressed herein. If the motion is denied, the judgment shall be reinstated.
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________