Opinion
A148946
08-11-2017
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY KEITH ATKINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. NF440076A)
Appellant Jeffrey Keith Atkins appeals from the trial court's judgment following his no contest pleas and admissions to prior convictions. He challenges the validity of one of his pleas and his admission to a prior "strike" (Pen. Code §§ 667, subds. (b)-(i), 1170.12). We affirm.
All undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
In March 2016, an amended information was filed charging appellant with first degree residential robbery (§ 212.5, subd. (a); count 1), false imprisonment (§ 236; count 2), battery (§ 243, subd. (e)(1); count 3), taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 4), and vandalism (§ 594, subd. (a); count 5). The information alleged appellant had been convicted of two or more prior serious and/or violent felonies (strikes) (§ 1170.12, subd. (c)(2)), in addition to other allegations based on prior convictions and prison terms. The information was further amended to allege only one strike prior (§ 1170.12, subd. (c)(1)).
Appellant agreed to plead no contest to felony vehicle theft in count 4 and misdemeanor vandalism in count 5, and to admit one strike prior (§ 1170.12, subd. (c)(1)) and probation ineligibility (§ 1203, subd. (e)(4)), in exchange for a maximum sentence of 32 months and consideration of his Romero motion and request for probation. In July 2016, the trial court denied appellant's Romero motion and denied probation. The court sentenced appellant to a prison term of 32 months.
The California Supreme Court held in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), that a trial court has the discretion under section 1385 to dismiss a prior felony conviction allegation under the Three Strikes law.
This appeal followed.
FACTUAL BACKGROUND
At the January 2016 preliminary hearing, a police officer testified to statements made by a female friend of appellant about a dispute that occurred at a Daly City hotel on August 22, 2015. According to the testimony, appellant kicked open the door to their hotel room, grabbed the woman's wallet and car keys out of her hand, and drove away in her car.
DISCUSSION
Appellant challenges the validity of his vehicle theft plea and prior strike admission. His claims are without merit.
In his reply brief, appellant withdrew a contention that his vehicle theft plea was invalid because of lack of an advisement regarding the parole consequences of the plea.
Appellant first contends the trial court failed to make an adequate finding regarding the factual basis for his plea to vehicle theft. Section 1192.5 provides, "The court shall . . . 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 such plea." In People v. Palmer (2013) 58 Cal.4th 110, the court held that "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." (Id. at p. 118.)
In the present case, the trial court asked appellant's attorney, "Is there a factual basis for the plea?" Defense counsel replied, "Stipulated based on my independent investigation." On appeal, appellant argues that exchange was insufficient to satisfy the Palmer standard because the court did not ask appellant whether he was satisfied with his counsel's advice. However, appellant cites no authority that such a direct query is necessary. The plea colloquy and plea form sufficiently demonstrate appellant was satisfied with counsel's advice. Before accepting the plea, the trial court confirmed that appellant had discussed with counsel the "nature of the charges . . . and the possible defenses" and nothing in the record suggests appellant was hesitant about the plea. The trial court did not abuse its discretion in accepting defense counsel's stipulation to the existence of a factual basis for the plea. (Palmer, supra, 58 Cal.4th at pp. 118-119.) In any event, given the evidence at the preliminary hearing that appellant kicked open a hotel room door, took his friend's car keys, and drove away in her car, any error as to the trial court's inquiry as to the factual basis was harmless. (People v. Holmes (2004) 32 Cal.4th 432, 443 [error as to factual basis finding "will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea"].)
Appellant argues there was no basis for the plea because "there was no evidence at the preliminary examination that the girlfriend told him that he did not have permission to drive the car." But appellant cites no authority any such evidence was necessary, particularly in light of the evidence appellant seized the car keys by force. --------
Appellant next contends his admission to the strike prior was invalid because he was not separately advised he had the rights to a jury trial, to confront and cross-examine witnesses, and against self-incrimination with respect to the prior. "In Boykin v. Alabama (1969) 395 U.S. 238 . . . , the United States Supreme Court explained that a defendant seeking to plead guilty is denied due process under the federal Constitution unless the plea is voluntary and knowing. 'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination. . . . [Citation.] Second, is the right to trial by jury. [Citation.] Third, is the right to confront one's accusers.' [Citation.] . . . In the wake of Boykin, we held in In re Tahl (1969) 1 Cal.3d 122, that 'each of the three rights mentioned—self-incrimination, confrontation, and jury trial—must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.' [Citation.] Some five years later, in In re Yurko [(1974)] 10 Cal.3d 857, we adopted as a judicial rule of criminal procedure the requirement that the three Boykin-Tahl admonitions must also be given 'before a court accepts an accused's admission that he has suffered prior felony convictions.' " (People v. Mosby (2004) 33 Cal.4th 353, 359-360 [italics omitted].) Moreover, the defendant must be advised of the "direct consequences" of the plea. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; see also People v. Barella (1999) 20 Cal.4th 261, 270 ["direct consequences" are "those which follow inexorably from the plea"].) An appellant seeking to withdraw a plea on the basis of a misadvisement must show prejudice; he must demonstrate that he "would not have entered the plea of guilty had the trial court given a proper advisement." (In re Moser (1993) 6 Cal.4th 342, 352; accord People v. Crandell (2007) 40 Cal.4th 1301, 1309; People v. Dillard (2017) 8 Cal.App.5th 657, 665; People v. Archer (2014) 230 Cal.App.4th 693, 706; see also People v. McClellan (1993) 6 Cal.4th 367, 378 [defendant's allegation "that had he properly been advised, he would not have entered his plea of guilty" is insufficient where "there is nothing in the record on appeal to support this contention"].)
In the present case, appellant admits he received the Boykin-Tahl admonitions with respect to the vehicle theft and vandalism charges, but he contends he did not receive the admonitions with respect to the prior strike allegation. However, the record reflects the trial court admonished appellant regarding his rights without suggesting the rights applied only to the counts and not the allegations; appellant then pled no contest to the vehicle theft charge, admitted the strike prior, admitted the probation ineligibility allegation, and finally pled no contest to the vandalism charge. Moreover, the plea form appellant signed listed both counts and allegations on the same change-of-plea line, and the form then subsequently listed the rights appellant was giving up by changing his plea without suggesting the rights only applied to the counts. Because the record provides no basis to conclude appellant would not have been aware the Boykin-Tahl admonitions applied to the prior strike allegation, appellant has not shown error.
Finally, appellant contends his admission to the strike prior was invalid because he was not advised that, as a consequence of his plea, he would be ineligible for probation unless the trial court dismissed the strike under Romero, supra, 13 Cal.4th 497 (see § 667, subd. (c)(2); § 1170.12, subd. (a)(2)). However, assuming the trial court erred in failing to provide that specific admonishment, appellant has not demonstrated prejudice. (See In re Moser, supra, 6 Cal.4th at p. 352 [engaging in harmless error analysis where trial court misadvised the defendant regarding the mandatory parole consequences of his guilty plea].) In particular, appellant must demonstrate he "would not have entered [the admission] had the trial court given a proper advisement." (Ibid.) In the present case, among other things, appellant has not shown there would have been any difficulty in proving up the strike prior. Absent such difficulty, there would have been little to no reason for appellant to forgo the benefits of the plea agreement.
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.