Opinion
No. 35785-2-II.
January 29, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-05089-0, Katherine M. Stolz, J., entered December 8, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J.; Quinn-Brintnall, J., concurring separately.
Jake Wayne Vigil-Cross appeals his convictions of second degree manslaughter, first degree assault, and second degree assault, arguing that the trial court erroneously accepted his guilty pleas because there was an insufficient factual basis for the pleas and because he was unaware of the State's burden of proof on self-defense. Because Vigil-Cross did not challenge the factual basis of his plea before the trial court, he failed to preserve this issue for appeal. And because informing a defendant about the State's burden of proof is not constitutionally mandated, the trial court did not err in accepting his plea. Accordingly, we affirm.
FACTS
The State charged Jake Wayne Vigil-Cross with one count of first degree murder and two counts of first degree assault. The State's probable cause declaration stated that Vigil-Cross and several companions verbally confronted a group of people sitting outside a house. When the group told Vigil-Cross and his companions to leave, Vigil-Cross pulled out a handgun and began firing. He shot Nathanial Allen, who died. He also shot Anthony Po-Ching multiple times in the back and Tina Attinello in the back of the leg as they tried to run away. Police believed that only one gun was fired, and that Vigil-Cross fired eight or more shots. Vigil-Cross admitted the shootings to a friend, but claimed that Allen had pulled a gun first and was pointing it at Vigil-Cross's head.
In an amended information, as part of a plea bargain, the State charged Vigil-Cross with one count of second degree manslaughter, one count of first degree assault, and one count of second degree assault. The prosecutor's supporting statement explained that there were "substantial problems" with the State's case as originally charged. Clerk's Papers (CP) at 26. Allen had been wearing a bullet-proof vest and holding a gun in his hand when Vigil-Cross shot him, lending some support to VigilCross's self-defense claim. Allen's companions had removed the gun from his hand before the police arrived and denied that he had a gun at the scene. Also, Attinello was not cooperating with the police and it was unclear whether she would appear at trial.
Vigil-Cross entered an Alford/Newton plea to the charges in the second amended information. His written statement to the court provided:
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
I do not believe I have committed these crimes. However, after reviewing the evidence with my attorney I believe there is a substantial likelihood the jury would find me guilty of these crimes. I am pleading guilty to accept? the State's agreement to reduce the charges and the sentencing recommendation.
CP at 35. At his sentencing hearing, Vigil-Cross stated that he believed he had a valid self-defense claim.
ANALYSIS I. Factual Basis For the Pleas
Vigil-Cross asserts that the trial court erred in accepting his guilty pleas because the materials the trial court relied on in determining whether there was a sufficient factual basis for the pleas did not establish that the State could disprove his self-defense claim beyond a reasonable doubt. The State counters that by pleading guilty, Vigil-Cross waived the right to challenge the factual basis for the plea.
Generally, we do not review issues raised for the first time on appeal unless the issue involves a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 684, 757 P.2d 492 (1988). CrR 4.2(f) allows a defendant to withdraw a guilty plea if necessary to correct a manifest injustice. But Vigil-Cross did not move to withdraw his guilty pleas below. Accordingly, he has waived this issue unless it is a manifest error affecting a constitutional right.
The constitutional requirements of a voluntary guilty plea are that the defendant be aware (1) that he is waiving the rights to remain silent, to confront his accusers, and to a jury trial; (2) of the essential elements of the offense charged; and (3) of the direct consequences of pleading guilty. In re Pers. Restraint of Hilyard, 39 Wn. App. 723, 727, 695 P.2d 596 (1985) (citing State v. Holsworth, 93 Wn.2d 148, 153-57, 607 P.2d 845 (1980)); see also Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The requirement in CrR 4.2(d) that there be a factual basis for the plea is procedural. In re Pers. Restraint of Hews, 108 Wn.2d 579, 592 n. 2, 714 P.2d 983 (1987). The procedural requirements of CrR 4.2 are not constitutionally mandated. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228 (1996). The factual basis of a plea, however, may be constitutionally significant where it relates to the defendant's understanding of his plea. Hews, 108 Wn.2d at 591-92.
Vigil-Cross does not argue that he did not understand his plea because of a lack of a factual basis. Instead, he argues that the information in the declaration for determination of probable cause and prosecutor's statement supporting the amended information is insufficient for a jury to conclude that he did not act in self-defense. Accordingly, Vigil-Cross has not shown a manifest constitutional error, and we decline to review the issue.
II. State's Burden of Proof
Vigil-Cross next argues that his guilty plea was based on an inadequate understanding of the nature of the charges against him because he was not aware that the State had to disprove self-defense beyond a reasonable doubt. Because awareness of the nature of the offenses charged is a constitutional element of a valid guilty plea, we address the issue. RAP 2.5(a)(3).
Vigil-Cross cites no case directly requiring the trial court to inform the defendant of the State's burden to disprove self-defense beyond a reasonable doubt. In In re Personal Restraint of Montoya, 109 Wn.2d 270, 744 P.2d 340 (1987), our Supreme Court rejected this argument where there was no evidence to support a self-defense claim in that case. Montoya, 109 Wn.2d at 279-80. The court stated, "The trial court certainly had no obligation to inform Montoya of the burden of proof on a purely hypothetical claim." Montoya, 109 Wn.2d at 280. But it never held that the trial court must inform the defendant of this burden if there is evidence to support the claim. Similarly, in State v. Haydel, 122 Wn. App. 365, 95 P.3d 760 (2004), Division One held that the State had no obligation to inform the defendant of its burden of proof on self-defense where he presented no evidence of self-defense. Haydel, 122 Wn. App. at 371. Again, the court did not hold that the opposite is true where there is evidence of self-defense.
Division One has held that a guilty plea may be valid even though the court did not advise the defendant that the State had the burden to prove all the elements of the crime beyond a reasonable doubt. State v. Rigsby, 49 Wn. App. 912, 917, 747 P.2d 472 (1987). The court noted that, even though the State's burden of proof is constitutional, no United States or Washington State Supreme Court case has required the court to expressly advise the defendant of the State's burdens of proof. Rigsby, 49 Wn. App. at 917 (citing Boykin, 395 U.S. at 242-44; State v. Chervenell, 99 Wn.2d 309, 662 P.2d 836 (1983); Holsworth, 93 Wn.2d at 153).
Vigil-Cross does not explain why we should require the trial court to inform him of the State's burden to disprove self-defense beyond a reasonable doubt when it has no obligation to inform him of the State's burden to prove the other elements of the crime beyond a reasonable doubt.
Because Vigil-Cross was aware that he waived the rights to remain silent, to confront his accusers, and to a jury trial, was aware of the essential elements of the offenses, and was aware of the direct consequences of pleading guilty, his plea was voluntary.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C. J., concur.
In this appeal, Jake Wayne Vigil-Cross asserts that the trial court erred in accepting his guilty pleas because the materials the trial court relied on in determining whether there was a sufficient factual basis for the pleas did not establish that the State could disprove his self-defense claim beyond a reasonable doubt.
To the extent that Vigil-Cross is arguing that his plea was involuntary because he was not informed of the State's burden to prove its case beyond a reasonable doubt, his argument is not well taken. The amended information stated that Vigil-Cross unlawfully and feloniously committed each of the crimes charged. Because a killing done in self-defense is not unlawful, Vigil-Cross was on notice that if he went to trial, the State would have the burden of proving the unlawfulness of his actions beyond a reasonable doubt. See State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977).
More importantly, in his statement of defendant on plea of guilty, Vigil-Cross gave up the right to have the State prove its case beyond a reasonable doubt. Paragraph 5 provides:
I UNDERSTAND THAT I HAVE THE FOLLOWING IMPORTANT RIGHTS, AND I GIVE THEM ALL UP BY PLEADING GUILTY:. . . . (e) I am presumed innocent unless the charge is proven beyond a reasonable doubt or I enter a plea of guilty.
Clerk's Papers (CP) at 29.
But Vigil-Cross may challenge the factual basis for the trial court's acceptance of his guilty plea for the first time on appeal. To accept a valid voluntary guilty plea, the trial court must satisfy CrR 4.2(d), which requires a factual basis:
The court shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
CrR 4.2 does not define "factual basis." But our Supreme Court recently reiterated that '"[t]he factual basis requirement of CrR 4.2(d) does not mean the trial court must be convinced beyond a reasonable doubt that defendant is in fact guilty;' there must only be sufficient evidence, from any reliable source, for the jury to find guilt." State v. Zhao, 157 Wn.2d 188, 198, 137 P.3d 835 (2006) ( quoting State v. Newton, 87 Wn.2d 363, 370, 552 P.2d 682 (1976)).
In his statement of defendant on plea of guilty, Vigil-Cross stipulated that the court could review the prosecutor's November 1, 2004 statement of probable cause to establish a factual basis for the plea. That statement reads in relevant part as follows:
That in Pierce County, Washington, on or about the 10th day of September, 2004, [Vigil-Cross] did shoot into a group of people, killing Nathaniel Allen and injuring Anthony Po-Ching and Tina Attinello.
[Vigil-Cross] and several companions arrived at an outdoor party, uninvited, in the early morning hours of September 10th, 2004. The location of the party and the murder was 3220 ?? E. Roosevelt in Tacoma. A verbal confrontation occurred and [Vigil-Cross] and the others were told to leave.
[Vigil-Cross] pulled out a handgun he carried to the scene and began firing at the victims, who tried to run away. As many as eight or more shots were fired. The police evaluated the crime scene and believe that only one gun was fired.
The deceased, Nathaniel Allen was struck multiple times. Victim Anthony Po-Ching was struck multiple times in the back. Victim Tina Attinello was struck in the back of a leg as she tried to escape. [Vigil-Cross] and his friends ran away.
[Vigil-Cross] has admitted to a friend that he did the shooting, claiming however, that victim Nathaniel Allen had first pulled out a gun and was pointing it at [Vigil-Cross's] head. No eye witnesses confirm this claim. Two of the shooting victims, so far, have identified [Vigil-Cross] from a photo lineup as the shooter. The investigation is continuing.
CP at 4.
Vigil-Cross does not argue that he did not understand his plea because of a lack of a factual basis nor did he move to withdraw his guilty plea below. Instead, he argues that the information in the declaration for determination of probable cause and the prosecutor's statement supporting the amended information is insufficient for a jury to conclude that he did not act in self-defense. But as shown above, Vigil-Cross misstates the factual basis standard. Zhao, 157 Wn.2d at 198. When the record, as here, establishes that the Vigil-Cross knowingly and voluntarily entered a guilty plea and that at least there exists a factual basis for the original charge, the factual basis for the original charge establishes a factual basis for the plea as a whole. Zhao, 157 Wn.2d at 200.
Accordingly, the record amply supports the trial court's decision to accept Vigil-Cross's knowing and voluntary guilty plea to the amended information, and I concur with the majority's decision to affirm.