Opinion
A148998
08-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ROMER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR179358)
As part of a negotiated disposition, defendant Joseph Romer pleaded no contest to felony grand theft from the person and was sentenced to 32 months in prison. On appeal, Romer argues that the trial court failed to make an adequate inquiry into the factual basis for his plea, and asks us to reverse the judgment and direct the superior court to allow him to withdraw his plea. We find no error, and we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are summarized in the Napa County Criminal Justice System Arrest/Detention/Complaint Form, which includes this description of "probable cause for arrest," prepared by Officer K. Smith of the American Canyon Police Department: On March 25, 2016, "[o]fficers responded to Walmart due to report of loss prevention attempting to detain a combative suspect. Victim, loss prevention associate for Walmart, had Romer in custody upon police arrival. Victim said he observed Romer hiding merchandise in his pants then leave the store without paying. Victim said he ID'ed himself to Romer, who then attempted to flee. Victim grabbed Romer's upper arm. Romer grabbed both of victim's wrists and tried to wrestle him to the ground. Romer admitted to stealing and said he tried to push victim away. Romer said victim did not ID himself."
The district attorney filed a complaint on March 30, 2016, in the Napa County Superior Court charging Romer with one count of second degree robbery (Pen. Code, § 211), a felony, for "tak[ing] personal property from the person, possession, and immediate presence of" the loss prevention associate by means of force and fear. The complaint also alleged a prior strike conviction in 2008 for robbery (Pen. Code, § 211). (Pen. Code, § 667, subds. (b) - (i).)
Statutory references are to the Penal Code unless otherwise stated.
As part of a negotiated disposition, on May 6, 2016, the district attorney filed an amended complaint in the Napa County Superior Court adding a count of felony grand theft from the person (§ 487, subd. (c); count 2) for "unlawfully tak[ing] property from the person of" the loss prevention associate. That same day, Romer pleaded no contest to the second count—felony grand theft from the person—and admitted the prior strike, pursuant to the agreement between the parties, reflected on a written Plea Form, that he would "Plead No Contest to added Ct 2, PC 487(c); Stipulate no P47, admit 1 strike prior, low term doubled for a total of 32 months prison. Defendant waives eligibility for proposition 47 reduction in exchange for dismissal of strike 211."
The references to Proposition 47 in the plea agreement suggest that in exchange for the prosecution dismissing the charge of robbery (§ 211), which would have been Romer's second strike, Romer agreed to plead to felony grand theft from the person, "waiving" the provisions of Proposition 47 under which the definition of felony grand theft from the person was changed to require that in most circumstances the items taken have a value of more than $950. (People v. Romanowski (2017) 2 Cal.5th 903, 908; § 487, subd. (c); § 490.2, subd. (a).) The Probation Department's presentence report states that the "[t]otal stolen merchandise was determined to be $52.53, and all property was returned to Wal-Mart."
In the signed plea form, Romer "stipulate[d] there is a factual basis for [his] plea(s) in the police report," and "underst[ood] the nature of the charge(s) against [him] and the possible pleas and defenses." His attorney and the district attorney also stipulated in the plea form that "there is a factual basis" for the plea "in the police report." Romer's attorney further stated in the plea form, "I have gone over this form . . . with my client. . . . I have discussed the facts of the case with the defendant and have explained the nature of the charges, the elements of the offense(s), any possible defenses, and the consequences of the plea(s)."
At the hearing, the superior court judge questioned Romer and his attorney:
"THE COURT: All right. So at this point, Mr. Romer, I'm holding a three page Plea Form, sir. It appears that you're going to be pleading to Count Two. Have you had a chance to read the three page Plea Form?
"DEFENDANT ROMER: Yes, your Honor. I also signed it.
"THE COURT: Okay. These are also your initials, sir?
"DEFENDANT ROMER: Yes.
"THE COURT: Have you had adequate time to talk to your attorney about this case?
"DEFENDANT ROMER: Yes, your Honor.
"THE COURT: Do you have any questions for the court?
"DEFENDANT ROMER: No, your Honor.
"THE COURT: How do you plead to Count Two which is a grand theft of person as a felony, sir?
"DEFENDANT ROMER: I plead no contest, your Honor.
"THE COURT: Do you also admit the prior strike allegation, the conviction date August 19, 2008, for a PC 211 robbery?
"DEFENDANT ROMER: Yes, your Honor. I plead to that.
"THE COURT: You understand the plea agreement at this point is to impose the low term on Count Two and double it as a result of the strike for a total of 32 months?
"DEFENDANT ROMER: Yes, your Honor.
"THE COURT: [to Romer's attorney] At this point, Miss Hendry, do you join in the waiver, consent to the plea?
"MS. HENDRY: I do.
"THE COURT: Stipulate to a factual basis?
"MS. HENDRY: Yes.
"THE COURT: The court will find that Mr. Romer has made a knowing, intelligent, voluntary waiver of his rights. And the court is adopting the findings on page three of the Plea Form."
The superior court judge signed the Court's Findings and Order on the third page of the plea form. The Court's Findings and Order include the statement, "having reviewed this form, together with any attachments, and having questioned the defendant concerning his or her constitutional and statutory rights, finds that the defendant understands his or her rights and that the defendant expressly, knowingly, voluntarily, and intelligently waived those rights. . . . The Court finds there is a factual basis for the plea(s) and admission(s)." The minute order from the hearing likewise states, "Court finds . . . there was a factual basis for said plea."
On June 3, 2016, the court imposed the agreed-upon sentence of 32 months. Romer timely filed a notice of appeal and a request for a certificate of probable cause, which the superior court granted.
DISCUSSION
A. Applicable Law and Standard of Review
A defendant who enters a plea of guilty or no contest waives all errors arising before entry of the plea, except for those questioning the "constitutional, jurisdictional, or other grounds going to the legality of the proceedings" that resulted in the plea. (§ 1237.5, subd. (a); see also People v. DeVaughn (1977) 18 Cal.3d 889, 895-896; People v. Kaanehe (1977) 19 Cal.3d 1, 9.) In order for a court to accept a plea of guilty or no contest to a felony in the context of a negotiated disposition, the trial court is required by statute 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." (§ 1192.5.) "The purpose of the factual basis requirement is to help ensure that the constitutional standards of voluntariness and intelligence are met." (People v. Palmer (2013) 58 Cal.4th 110, 118 (Palmer), citing People v. Holmes (2004) 32 Cal.4th 432, 438-439 (Holmes). Although the factual basis inquiry is not a constitutional requirement, "such an inquiry furthers constitutional considerations attending a guilty plea [citation], protects against the entry of a guilty plea by an innocent defendant, and makes a record in the event of appellate or collateral attacks on that plea. [Citation.] Given these significant policy considerations, a failure to make a sufficient inquiry, while not a constitutional or jurisdictional requirement, is one of the 'other' grounds going to the legality of the proceedings in the trial court." (People v. Marlin (2004) 124 Cal.App.4th 559, 571.)
The Attorney General argues that Romer's claim is not cognizable on appeal and that the appeal should therefore be dismissed. We disagree. Our Supreme Court in Palmer held that a claim that the trial court failed to satisfy the inquiry requirements of section 1192.5 is cognizable on appeal as a challenge to "the superior court's procedure in soliciting facts." (Palmer, supra, 58 Cal.4th at p. 115.)
Section 1192.5 requires the " ' "inquiry to be made of defendant," ' " but our Supreme Court has confirmed 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, quoting Holmes, supra, 32 Cal.4th at p. 440, fn. 5.) Section 1192.5 "does not require more than establishing of a prima facie factual basis for the charges." (Holmes, supra, 32 Cal.4th at p. 441.) It does not require the court to inquire as to possible defenses to the crime or to be convinced that the defendant is guilty. (Ibid.) The trial court may fulfill its duty to conduct an inquiry by "directly questioning the defendant, or by garnering statements and admissions by his counsel." (Id. at p. 440.) "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." (Id. at p. 444.) The requirement can also be met by a "bare stipulation" from counsel "without reference to any document describing the underlying facts" in an appropriate case, such as a case where "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 pp. 115, 118.)
The trial court has "wide discretion in determining whether a sufficient factual basis exists" for a plea. (Holmes, supra, 32 Cal.4th at p. 443.) After a court has pursued an inquiry to satisfy itself that there is a factual basis for the plea, its acceptance of the plea is reversed only for abuse of discretion. (Ibid.) B. Analysis
Romer argues that the trial court erred by "fail[ing] to make an adequate inquiry into" his plea. We disagree.
In his opening brief on appeal, Romer claimed incorrectly that the superior court "failed to make a finding that there was a factual basis for the plea." As Romer concedes in his reply brief, the superior court did make that finding. Romer then attempted to argue that this finding was "without reference to any document," but that is not accurate either, as we will discuss.
Our Supreme Court has made clear that the trial court may fulfill its duty under section 1192.5 to satisfy itself that there is a factual basis for the plea by accepting a stipulation from counsel that a factual basis for the plea exists. (Palmer, supra, 58 Cal.4th at p. 118.) In Palmer, the Supreme Court agreed 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." (Id. at pp. 117-118.) The inclusion in the stipulation of a reference to a document that provides an adequate factual basis is "desirable," but not required. (Id. at p. 118.)
Here, Romer's defense counsel stipulated that there was a factual basis for the plea, and on the plea form defense counsel stipulated that the police report provided a factual basis for the plea. So did the prosecutor. Defense counsel also stated on the plea form that she had explained the charges and possible defenses to Romer. The plea form also included a signed statement from Romer stipulating that there is "factual basis for [his] plea in the police report," and that he "underst[ood] the nature of the charge(s) against [him] and the possible pleas and defenses." In the plea colloquy in the courtroom, Romer confirmed that he read and signed the plea form, stated that he had adequate time to talk to his attorney about the case, and declined the opportunity to ask questions of the court. The trial court, finding "a knowing, intelligent, voluntary waiver" of rights, then adopted the findings on page three of the plea form. These findings included a factual basis for the plea based on the court "having reviewed" the plea form, which included the stipulation that the police report provided a factual basis for the plea. In these circumstances, we find no basis to conclude that the superior court's inquiry into the factual basis of the plea was insufficient. (Palmer, supra, 58 Cal.4th at p. 118; Holmes, supra, 32 Cal.4th at p. 444.)
We are not persuaded by Romer's argument that "[t]here is no indication in the record that the court read the police report or any other document which purported to establish a factual basis." As Palmer explains, there is no requirement that the trial court read any such document or that such a document be referenced. (Palmer, supra, 58 Cal.4th. at p. 118.) In any event, the record here contains the plea form, which the superior court judge reviewed, and in which defendant and his counsel and the prosecuting attorney stipulated that the police report provides a factual basis for the plea.
Because we conclude that the trial court did not err in conducting the inquiry into factual basis that is required by section 1192.5, we do not reach the question whether the claimed error was harmless. (Holmes, supra, 32 Cal.4th at p. 443.)
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. I concur: /s/_________
Richman, J. Concurring opinion of Kline P.J.
I agree with appellant that the record does not actually provide a factual basis for his plea but do not consider that a sufficient reason to find that the trial court did not sufficiently inquire into the factual basis. I write separately to explain why.
Penal Code section 1192.5 states that where, as here, the trial court approves a plea, it shall "cause an inquiry to be made of the defendant" to satisfy itself not just that the plea is freely and voluntarily made, but as well "that there is a factual basis for the plea."
All undesignated statutory references are to the Penal Code.
The historical purpose of the factual basis requirement is not simply "to help ensure that the constitutional standards of voluntariness and intelligence are met" (People v. Palmer (2013) 58 Cal.4th 110, 118 (Palmer), citing People v. Holmes (2004) 32 Cal.4th 432, 440, fn. 5), but also to serve several other important purposes. "First, it assures that a defendant who seeks to plead guilty is in fact guilty. Our system has concluded, in order to protect the innocent, that persons whose conduct does not fall within the charges brought by the prosecutor should not be permitted to plead guilty. Nor should defendants be coerced into foregoing their trial rights. Unless the court inquires into the factual basis for the plea, there is a risk of innocent persons being adjudicated guilty. Putting the factual basis on the record promotes public confidence in the integrity of the result. In addition, the inquiry into a factual basis for the plea, when made a matter of record, eliminates the need for post-conviction factfinding proceedings when a plea is challenged. Finally, the information developed in assessing the factual foundation of the plea is also quite useful to the court at sentencing." (ABA Stds. for Pleas of Guilty (3d ed. 1999) com. on std. 14-1.6, p. 66; see Holmes, at p. 438, fn. 2, quoting ABA com.)
With exceptions not here relevant, the offense of felony grand theft of property taken from the person of another (§ 487, subd. (c)), to which appellant pleaded no contest, requires the taking of property of a value exceeding $950. (§ 487, subd. (a).)
The only document in the record indicating the value of the property appellant took from Walmart is the presentence report filed with the court by the Probation Department on May 27, 2016, shortly after the district attorney filed the amended complaint to conform to the negotiated disposition. The presentence report states that the "[t]otal stolen merchandise was determined to be $52.53, and all property was returned to Wal-Mart."
The trial judge, defense counsel, and the prosecutor were all undoubtedly aware that the record provided no factual basis for appellant's plea to grand theft, but subordinated his innocence of that offense to competing considerations. From appellant's perspective, conviction of grand theft, which would not constitute a strike, was more advantageous than conviction of the robbery with which he was initially charged, which would constitute appellant's second strike. Appellant's plea of no contest to an offense known by court and counsel to have no factual basis was not, strictly speaking, a so-called Alford plea (North Carolina v. Alford (1970) 400 U.S. 25 (Alford)), as he did not affirmatively assert his innocence of the crime to which he pled; but there is some similarity because he pled no contest rather than guilty.
It can be and has been argued that Alford and no contest pleas are unwise and should be abolished (see, e.g., Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas (2003) 88 Cornell L.Rev. 1361); and many courts have noted that such pleas are particularly problematic when the trial court does not rigorously insure that there is a factual basis for the plea. Indeed, Alford itself points out that, due to "the importance of protecting the innocent and of insuring that guilty pleas are a product of free and intelligent choice, various state and federal court decisions properly caution that pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea [citations]." (Alford, supra, 400 U.S. at p. 38, fn. 10.)
The gist of this article is that Alford and no contest pleas "undermine the procedural values of accuracy and public confidence in accuracy and fairness, by convicting innocent defendants and creating the perception that innocent defendants are being pressured into pleading guilty. More basically, they allow guilty defendants to avoid accepting responsibility for their wrongs. Guilty defendants' refusal to admit guilt impede their repentance, education, and reform, as well as victims' healing. . . . Both kinds of pleas, but especially Alford pleas, equivocate: one might call them 'guilty-but-not-guilty' pleas. They permit equivocation and ambiguity when clarity is essential. . . . Thus, guilty pleas should be reserved for those who confess. Jury trials should serve not only to acquit innocent defendants, but also to teach guilty defendants and vindicate their victims and the community's moral norms. They are morality plays. Because criminal law's norms include honesty and responsibility for one's actions, criminal procedure should not let guilty defendants dishonestly dodge responsibility and the truth." (Harmonizing Substantive-Criminal-Law Values and Criminal Procedure, supra, 88 Cornell L.Rev. at pp. 1363-1364, fns. omitted.)
The critique of Alford and no contest pleas is a subset of the larger debate about plea bargaining itself, which takes place largely between legal academics, most of whom oppose plea bargaining (see, e.g., Schulhofer, Plea Bargaining as Disaster (1992) 101 Yale L.J. 1979, and judges and lawyers, most of whom defend the practice. (See, e.g., Easterbrook, Plea Bargaining as Compromise (1992) 101 Yale L.J. 1969.)
I concur in my colleagues' conclusion that the trial court's superficial inquiry into the factual basis of appellant's plea satisfied the requirements of section 1192.5 only because, like my colleagues, I believe we are compelled to do so by Palmer, which—astonishingly—is wholly ignored not just by appellant but as well by the Attorney General.
As Justice Miller explains, the Palmer court accepted the People's argument "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, italics added.) The Palmer court endeavored to "now make clear" that, while it is desirable for counsel stipulating to a factual basis to include reference in the stipulation to a particular document that provides an adequate factual basis, such a reference is not required. As the Supreme Court stated, "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.)
As I see it, by permitting defense counsel to speak for the defendant, relieving counsel of the need "to recite facts or refer to a document in the record" (Palmer, supra, 58 Cal.4th at p. 112) when stipulating to a factual basis, and requiring only a showing "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), Palmer reduces, or permits the reduction of, the factual basis requirement embodied in section 1192.5 to that of a virtual factual basis, not a real one. This is justified, Palmer says, because it "is consistent with defense counsel's broad authority to stipulate to factual and procedural matters on his client's behalf. Even at trial, counsel may stipulate to the existence or nonexistence of essential facts. [Citation.] Counsel may also stipulate to the admissibility of evidence or to narrow the range of litigable issues. [Citations.] Stipulations obviate the need for proof and are independently sufficient to resolve the matter at issue in the stipulation. [Citation.]" (Palmer, at p. 118.) In other words, if defense counsel and the People represent that there is a factual basis for the defendant's plea, the representation cannot be judicially questioned.
Prior to Palmer, courts had found that a general stipulation by counsel without reference to documents containing factual allegations was insufficient. (People v. Willard (2007) 154 Cal.App.4th 1329, 1335; People v. Tigner (1982) 133 Cal.App.3d 430, 435; but see People v. McGuire (1991) 1 Cal.App.4th 281 .) In People v. Holmes, supra, 32 Cal.4th 432, after pointing out that the factual basis required by section 1192.5 does not require more than establishing a prima facie factual basis for the charges, the Supreme Court noted that "[a] closer question is raised when counsel stipulates to a factual basis for the plea under section 1192.5, absent reference to a particular document that provides an adequate factual basis," quoting Justice Poche's statement that " '[s]uch a stipulation reveals no more of a factual basis supporting the plea than the plea itself." (Holmes, at p. 441, fn. 8, quoting McGuire, at p. 286 (dis. opn. of Poche', J.).) The repudiation by Palmer of Justice Poche's view, which had been adopted in Willard and Tigner, alters the character of not just the factual basis inquiry, but the requirement that there need be a factual basis for a plea of guilty or no contest. It is not now clear to me whether this alteration in the law is for the better or the worse, but it is clear that the alteration has been made.
/s/_________
Kline, P.J.