Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 194190
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On April 6, 2007, defendant and appellant Michael Masliakoff (appellant) filed a notice of appeal with respect to superior court case number 194190/municipal court case number 2183755 (hereinafter “case number 194190/2183755”). Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asking that we independently review the record in order to determine whether it contains any arguable sentencing issues or other post-plea issues. Having done so, we affirm.
Facts & Procedural Background
On September 29, 2004, a criminal complaint was filed against appellant in case number194190/2183755 alleging in three counts that appellant “threaten[ed] to commit a crime which would result in death and great bodily injury to another person,” in violation of California Penal Code section 422. In count one, the alleged victim was Megan Stevens, in count two it was Christina Raftery, and in count three, Susan Coleman. The complaint contained no specific details on the nature of the alleged threats.
Further statutory references are to the Penal Code unless otherwise noted.
At a change of plea hearing on December 9, 2004, the prosecutor without objection asked leave of the court to amend count two of the complaint to a felony charge of violating section 136.1, “that is, dissuading a witness from testifying or contacting a witness for those purposes.” Also, the prosecutor asked that the name of the victim in the section 136.1 count be “Megan Stevens which is the alleged victim in count 1 of the original complaint.” No details of the alleged section 136.1 offense were provided to the court at that time. Defense counsel then informed the court that appellant “wants to enter a plea of guilty to the charge of 136.1.” Defense counsel stated the plea is offered pursuant to a negotiated disposition for a recommended sentence of three years probation with one year to be served in county jail. Appellant was advised and informed of his constitutional rights. The court found that appellant voluntarily and intelligently waived his rights and accepted the plea. However, the change of plea transcript provides no indication that the trial court established a factual basis for the plea, as required by section 1192.5.
On January 6, 2005, appellant was sentenced in accordance with the negotiated plea and disposition. On August 29, 2005, the District Attorney filed a notice of motion and motion to revoke probation for new burglary and theft charges following appellant’s arrest on August 25, 2005, at a department store in San Francisco.* On October 5, 2005, appellant was arraigned on a new felony complaint in case number 2237266, alleging four counts of robbery in violation of section 211.* The complaint alleged that appellant used a knife in the taking of merchandise from personnel at Circuit City at 1200 Van Ness Avenue in San Francisco.* The motion to revoke probation in case number 194190/2183755 trailed behind the new felony case.*
This fact is taken from the People’s opposition to appellant’s motion to withdraw his guilty plea in case number 194190/2183755. The record does not include the transcript of this sentencing hearing in case number 194190/2183755. Other facts taken from the People’s opposition brief are designated by an asterisk [*]. Also, the Clerk’s Transcript on this appeal does not contain an Abstract of Judgment reflecting the judgment and sentence in case number 194190/2183755.
The Clerk’s Transcript on this appeal does not contain a file-stamped copy of the criminal complaint filed in case number 2237266.
On April 17, 2006, pursuant to a negotiated settlement, appellant entered a guilty plea in 2237266 to one count of robbery for a sentence of three years in state prison.* From June 28, 2006 to February 15, 2007, sentencing on the robbery case (2237266) was continued, so appellant could explore whether he had grounds to withdraw his plea in case number 194190/2183755.* The motion to revoke probation in case number 194190/2183755 trailed any prospective motion to withdraw plea.* On or about February 15, 2007, appellant filed a motion to withdraw his guilty plea in case number 194190/2183755. In his motion, appellant argued his plea was involuntary because he was not informed that his guilty plea to the section 136.1 count was a “strike” offense, as defined in section 667, subdivisions (d) and (e).
At a hearing on March 23, 2007, the trial court denied appellant’s motion to withdraw his guilty plea in case number 194190/2183755. On March 26, 2007, a sentencing hearing was held in case number 2237266. The trial court stated: “I have read and considered the presentence report in this matter. The judgment and sentence of the Court on [appellant’s] plea of guilty on April 17, 2006, to a violation of Penal Code Section 212.5(c), a felony, is the following: [¶] The defendant is sentenced to three years state prison. . . .” As to the still-pending motion to revoke probation in case number 194190/2183755, the court asked whether the parties “contemplated as part of the negotiated disposition that that be terminated unsuccessful?” To which the prosecutor replied, “Yes, Your Honor,” and the court so ordered. On April 6, 2007, appellant filed a notice of appeal with respect to the court’s ruling of March 23, 2007, in case number 194190/2183755, denying his motion to withdraw his guilty plea.
The Clerk’s Transcript for this appeal does not contain a copy of the Abstract of Judgment for case number 2237266. So far as we are aware, no appeal was filed against the judgment or sentence imposed in case number 2237266.
Discussion
As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellant’s counsel has filed a Wende brief raising no arguable issue, counsel informed appellant of his right to file a supplemental brief, and appellant did not file such a brief. We have also independently reviewed the entire record for potential error.
Appellant’s motion to withdraw his guilty plea was based on the fact that he was not informed that his guilty plea to a section 136.1 offense would qualify as a serious or violent felony (or “strike”) under section 667, subdivisions (d) and (e), and section 1170.12, subdivisions (b) and (c). A defendant must be advised of the “direct consequences of conviction.” (People v. Moore (1998) 69 Cal.App.4th 626, 630.) On the other hand, the court is not obligated to inform a defendant about “secondary, indirect or collateral consequences” of conviction. (People v. Moore, supra, 69 Cal.App.4th at p. 630.) “A consequence is considered ‘collateral’ if it ‘does not “inexorably follow” from a conviction of the offense involved in the plea.’ (Citation).” (Ibid.) “Collateral consequences include[] the possibility of enhanced punishment in the event of a future conviction.” (Ibid. [citations omitted].) Likewise, whether a charge is a one subject to the Three Strikes law is merely of collateral interest because only if the defendant reoffends does the distinction have any consequence at all. (People v. Bernal (1994) 22 Cal.App.4th 1455, 1457 [“[D]efendant need not be advised of the possible future use of a conviction in the event the defendant commits a later crime.”]; see also People v. Gurule (2002) 28 Cal.4th 557, 634; People v. Crosby (1992) 3 Cal.App.4th 1352, 1355.) Thus the trial court did not err in denying appellant’s motion to withdraw his guilty plea.
However, our review of the record indicates that the trial court did not ascertain a factual basis for appellant’s plea of guilty on the section 136.1 charge. In People v. Holmes (2004) 32 Cal.4th 432, our Supreme Court concluded “that in order for a court to accept a conditional plea, it must garner information regarding the factual basis for the plea from either defendant or defense counsel to comply with section 1192.5. If the trial court inquires of the defendant regarding the factual basis, the court may develop the factual basis for the plea on the record through its own examination by having the defendant describe the conduct that gave rise to the charge (citation), or question the defendant regarding the factual basis described in the complaint or written plea agreement. (Citations.) If the trial court inquires of defense counsel regarding the factual basis, it should request that defense counsel 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.) Under either approach, a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate. (Citation.)” (People v. Holmes, supra, 32 Cal.4th at p. 436.) In this case, the trial court failed to ascertain the factual basis for the offense by any of these means.
However, even if the trial court erred by failing to ascertain a factual basis for the plea, such error is harmless “where the contents of the record support a finding of a factual basis for the conditional plea.” (People v. Holmes, supra, 32 Cal.4th at p. 443.) The harmlessness of such error is assessed against any evidence in the record supporting a factual basis for the offense, including police reports and probation reports. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1565 (Mickens) [trial court’s error harmless because “an adequate factual basis for the plea could have been established” from the probation report].)
The probation report in this case states: “Hayward Police had received information that the defendant’s girlfriend told officers that [appellant] had made threats to his grandmother that he will burn down his girlfriend’s house in Hayward. It was noted in the report that [appellant’s] girlfriend lives with his grandmother’s daughter, Susan C. in Hayward. [¶] Police reported to [appellant’s] grandmother’s apartment. She said [appellant] had made threats to burn down his girlfriend’s house in Hayward, California. She believed the threats were credible.” Also, it states, “In the present offense, [appellant] pled guilty to violation of Section 136.1 PC/F (Prevent/Dissuade Victim/Witness). [Appellant], feeling distraught over his separation from his former girlfriend, went to her home in Hayward and threatened her as well as his aunt and grandmother. He also threatened to burn down his aunt’s home. He was arrested in San Francisco for the offense.” As in Mickens, supra, we conclude an adequate factual basis for appellant’s section 136.1 plea of guilty can be established from these statements in the probation report. (Mickens, supra, 38 Cal.App.4th at pp. 1564-1565.) Accordingly, because the trial court’s failure to comply with the requirements of section 1192.5 was harmless error, the trial court “acted within its discretion in denying appellant’s motion to withdraw his guilty plea.” (Mickens, supra, 38 Cal.App.4th at p. 1565.) In sum, our independent review of the record reveals no error.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.