Opinion
E079861
07-19-2023
THE PEOPLE, Plaintiff and Respondent, v. BRITTANY GLENN CONGELLIERE, Defendant and Appellant.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney Generals, Arlene A. Sevidal, James M. Toohey and Eric Tran, Deputy Attorney Generals, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB22002085 William Jefferson Powell IV, Judge. Affirmed.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney Generals, Arlene A. Sevidal, James M. Toohey and Eric Tran, Deputy Attorney Generals, for Plaintiff and Respondent.
OPINION
MILLER J.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On July 15, 2022, a felony complaint charged defendant and appellant Brittany Congelliere with two counts of child abuse under Penal Code section 273a, subdivision (a). As to both counts, the complaint also alleged that the following may apply under section 1170, subdivision (b)(2):
All statutory references are to the Penal Code unless otherwise specified.
"1. The victim was particularly vulnerable;
"2. The defendant took advantage of a position of trust or confidence to commit the offense.
"3. And any other aggravating factors that may be permitted by law."
On August 8, 2022, defendant pled guilty to one count of felony child abuse (count 1), in exchange for four years of felony probation.
On September 20, 2022, defendant filed a timely notice of appeal and request for certificate of probable cause. On September 22, 2022, the trial court granted defendant's request for certificate of probable cause.
B. FACTUAL HISTORY
On July 13, 2022 at approximately 9:30 a.m., a San Bernardino County sheriff's deputy conducted a traffic stop of defendant. The deputy saw two children, later identified as defendant's children, in her car; a four-year-old daughter and a five-year-old son. The daughter was secured in her child car seat, the son was not secured in his car seat.
The deputy noticed that both children appeared extremely dirty. The children had dirt on their bodies, arms and face. Moreover, their teeth were rotten and it appeared that the children's nails had not been trimmed in several weeks. Based on the deputy's observations, he contacted child and family services for an immediate response.
Later that morning, deputies served a search warrant at defendant's home. A deputy searched a bedroom that contained two beds, children's clothes, homework and toys; the deputy believed that the children stayed with defendant in the room.
During the search, the deputy found a Rubbermaid tote on the floor at the foot of one of the beds. The tote did not have a lid and was full of clothes. When the deputy moved one pair of pants, he discovered two revolvers loaded with bullets. He determined that neither gun had a safety to prevent the trigger from being pulled.. The deputy believed any child staying in the room could access the tote. The deputy found a dresser in the closet that contained mostly children's clothes. However, the deputy also found two hypodermic needles under the clothes in one drawer, and another needle under clothes in a second drawer. The deputy found a broken bong with sharp edges along the broken glass in another drawer. The deputy noted that "[t]he drawer was well within reach of either child and could easily be accessed by the children."
DISCUSSION
Defendant contends that the "trial court erred when it accepted appellant's negotiated plea agreement without first inquiring as to the factual basis of the plea in violation of section 1192.5." The People argue that "defense counsel's stipulation was sufficient under section 1192.5," citing People v. Palmer (2013) 58 Cal.4th 110, 164 (Palmer).
The People contend that defendant's claims regarding "the validity of her plea must be dismissed because she failed to obtain a certificate of probable cause." As noted ante, however, defendant requested the certificate of probable cause, and the trial court granted defendant's request for certificate of probable cause.
In Palmer, the California Supreme Court explained that "[s]ection 1192.5 requires the trial court to make an inquiry to satisfy itself that there is a factual basis for a conditional plea," and that a" 'stipulation by counsel to the plea's factual basis is consistent with the legislative purpose of the statute.'" (Palmer, supra, 58 Cal.4th at p. 118.) The court noted that the" 'better approach'" is for counsel to stipulate to a particular document that provides an adequate factual basis for the plea. (Ibid.) Doing so would eliminate "any uncertainty regarding the existence of a factual basis." (Ibid.)
The Supreme Court, however, stated "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.) Therefore, "a bare stipulation without reference to any document describing the facts may, in an appropriate case, satisfy the requirements of section 1192.5." (Id. at p. 114.)
" '[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court's acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion.'" (Palmer, supra, 58 Cal.4th at pp. 118-119.) "A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea." (People v. Holmes (2004) 32 Cal.4th 432, 443.)
In this case, at a hearing on August 8, 2022, defendant withdrew a plea of not guilty. At the hearing, the trial court, defendant, the prosecutor, and defense counsel had the following discussion:
"The Court: You [defendant] submitted these 3-page documents to the Court. Did you place your initials in the boxes on [the] right-hand side of each page and sign the third page only after you made sure you understood everything on these documents?
"The Defendant: Yes.
"The Court: Did you have enough time to review your rights, the evidence against you and any possible defenses you may have with your lawyer?
"The Defendant: Yes.
"The Court: My understanding of your argument, you would be pleading guilty to a violation of Penal Code Section 273(a)(a). That's child endangerment. That is a felony. It carries two, four or six years in custody.... [¶] In exchange for your plea, you will receive a total grant of four years probation. It will be four years for the child endangerment.... Is that your understanding of this agreement?
"The Defendant: Yes. [¶] . . . [¶]
"The Court: Were you forced or threatened in any way?
"The Defendant: No. [¶] . . . [¶]
"The Court: Do you have any questions?
"The Defendant: No.
"The Court: With all those rights in mi[n]d, then, how do you plead to the violation [of] Penal Code Section 273[a](a) child endangerment as a felony? [¶] . . . [¶]
"The Defendant: Guilty. [¶] . . . [¶]
"The Court: Counsel join?
"[Defense Counsel]: Yes.
"The Court: And as well, both counsel stipulate that factual basis exists?
"[The Prosecutor]: So stipulated.
"[Defense Counsel]: So stipulated.
"The Court: I will make the following findings, the defendant's plea waiver was done both orally and in writing. She understands the nature and consequences of her plea as well as each of her constitutional rights. [¶] The plea and waiver [were] knowing[,] intelligent, freely and voluntarily given. Further, I find that a factual basis exists for plea."
Here, during this colloquy between defendant, defense counsel, the People and the trial court, defendant affirmed that she initialed and signed the plea agreement only after she made sure she understood everything in the agreement. Moreover, defendant agreed that she had adequate time to review her rights, the evidence against her, and any possible defenses she may have with defense counsel. When asked if she had any questions prior to pleading guilty, defendant answered "no."
Moreover, in the change of plea form, initialed and signed by defendant, and signed by her counsel, defendant stated she (1) understood the charges to which she was pleading guilty; (2) waived her constitutional rights; (3) was aware of the consequences of the plea; and (4) that there was a factual basis for her guilty plea. Defense counsel also affirmed that he "personally read and explained the contents of the above Declaration to the Defendant" and that he "personally observed the Defendant sign said Declaration."
On March 14, 2023, we granted the People's March 8, 2023, motion to augment and correct the record to include the plea signed by defendant in the underlying case.
Considering the record as a whole, we find that the record in this case establishes that defendant's plea was voluntary and intelligent, and it reveals that defendant "discussed the elements of the crime and any defenses with . . . her counsel and [was] satisfied with counsel's advice." (Palmer, supra, 58 Cal.4th at p. 118.)
Notwithstanding Palmer's applicability to this case, in her response brief, defendant contends that her case is distinguishable form Palmer because, "[i]n Palmer, the defendant discussed the elements of the crime and any defenses with counsel, therefore, the California Supreme Court concluded although the stipulation did not reference specific court documents; the plea colloquy satisfied the requirement that a factual basis was found prior to acceptance of the conditional plea." Defendant claims that in her case, "there was no reference to appellant reviewing the elements of the charged crime with her counsel, nor does the signed plea agreement make any reference to the charged elements of the crime she was pleading guilty to."
We disagree with defendant's assessment of the evidence in the record. As discussed in detail ante, at the change-of-plea hearing, the trial court specifically asked defendant if she had enough time to review her rights, the evidence against her, and any possible defenses she may have with defense counsel. She responded, "Yes." Moreover, defendant also acknowledged that she would be pleading guilty to section 273a, subdivision (a). Furthermore, in the change of plea form, she acknowledged the same.
Defendant's reliance on People v. Tigner (1982) 133 Cal.App.3d 430 is misplaced. In Tigner, the defendant argued that his motion to withdraw his guilty plea should have been granted because "the trial court failed to inquire as to the factual basis of the charges at the time he entered his plea, thus violating Penal Code section 1192.5." (Id. at p. 432.) The Tigner court stated, "[a]s the trial court in the instant case failed to make an on-the-record inquiry as to a factual basis for appellant's pleas, the trial court failed to comply with the factual basis requirement of Penal Code section 1192.5. [Citation.] We hold that a mere recitation by the court concluding 'There's a factual basis' without developing the factual basis on the record is not sufficient to meet the requirements of Penal Code section 1192.5." (Tigner, supra, 133 Cal.App.3rd at p. 435.) The Tigner case was decided in 1982, before the 2013 Palmer decision.
In 2013, the California Supreme Court held that a defense counsel's stipulation to factual basis need not refer to a document in the record. After citing cases that it relied on, which included Tigner, the Supreme Court stated:
"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, supra, 58 Cal.4th at p. 118.)
In this case, just as in Palmer, "defense counsel and the prosecutor, both officers of the court, stipulated to a factual basis for defendant's plea." (Palmer, supra, 58 Cal.4th at p. 119.) Moreover, during the plea colloquy, defendant affirmed that she was pleading guilty to child endangerment under section 273a, subdivision (a), and that she had enough time to review her rights, the evidence against her, and possible defenses to the charge with her counsel. Furthermore, just like the defendant in Palmer, "[a]t no time did [she] protest [her] factual innocence." (Ibid.) "On this record, the stipulation satisfied the requirements of section 1192.5, and the trial court acted within its discretion in accepting defendant's plea." (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J. FIELDS J.