P. v. Hernandez

Filed 11/30/05 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Appellant, v. JOSE IGNACIO ELORZA HERNANDEZ, Defendant and Respondent.

F047634 (Super. Ct. No. VCF129593) OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.

Phillip J. Cline, District Attorney, and Barbara J. Greaver, Deputy District Attorney, for Plaintiff and Appellant.

Jose Ignacio Elorza Hernandez, in pro. per., for Defendant and Respondent.

-ooOoo-

Jose Ignacio Hernandez was charged by information with committing a lewd or lascivious act against a child under the age of 14 (Pen. Code, § 288, subd. (a);^[1] count 1) and failing to register as a sex offender (§ 290, subd. (a)(1)(A); count 2). The information also contained various special allegations, including that in 1998 Hernandez had suffered a conviction of violating section 288(a) that qualified as both a “strike”^[2] and a prior serious felony conviction (§ 667, subd. (a)).

Hernandez requested that the court strike, pursuant to section 1385, the allegation that he had suffered a prior conviction of violating section 288(a), on the grounds that his plea of no contest to that offense was invalid. The court struck the allegation and indicated a sentence of six years. Hernandez pled no contest to the count 1 offense, and the court imposed a prison sentence of six years, consisting of the midterm for that offense.

The People have appealed. On appeal, the People contend, and Hernandez does not dispute, that the court erred in striking the prior conviction allegation.^[3] We will reverse and remand for further proceedings.

PROCEDURAL BACKGROUND^[4]

In the 1998 proceeding, Hernandez was charged with two counts of violating section 288(a) and two counts of violating section 288, subdivision (b) (committing a lewd or lascivious act against a child under the age of 14 by use of force, violence, duress, menace or fear of immediate and unlawful bodily injury to the victim or another person). In that proceeding, he executed an “ADVISEMENT OF RIGHTS, WAIVER AND PLEA FORM” (plea waiver form) in which he indicated, inter alia, the following: he understood he had, and gave up, constitutional rights to confront witnesses against him, have a trial by jury and not incriminate himself; he was entering his plea “freely and voluntarily”; he had been advised of various consequences of his plea, including that the maximum sentence for the offense to which he was agreeing to plead no contest was eight years; the district attorney had advised him that if he plead no contest to one count of violating section 288(a), the remaining charges would be dismissed and he would receive a prison sentence of no more than three years; he “[had] spoken with [his] lawyer”; and he “believe[d] he [had] had enough time to talk with him/her about [the] case.” On that same form, Hernandez’s attorney “stipulate[ed] that there is a factual basis for the plea of guilty [sic] herein.”

Subsequently, in open court, defense counsel informed the court that Hernandez was charged with four offenses, and that an agreement had been reached with the prosecutor under which Hernandez would plead no contest to a single count of violating section 288(a), and “[would] not get probation.” Defense counsel then stated: “The previous offer from Judge Drew^[[5]] was a three-year sentence, which is the mitigated term. I believe he’s prepared to do that if the Court is prepared to offer that same indication.” The court responded, “I am.” At that point the matter was trailed, and shortly after the hearing resumed the following colloquy occurred:

“THE COURT: I’ll ask Mr. Ignacio Hernandez, Mr. Hernandez, did you read this form as it was interpreted to you?

“THE DEFENDANT: Yes, it was read to me.

“THE COURT: Do you have any questions about it?

“THE DEFENDANT: No.

“THE COURT: Is this your signature and your initials?

“THE DEFENDANT: Uh-huh.

“THE COURT: How -- yes?

“THE DEFENDANT: Yes.”

At that point, the court asked Hernandez how he pled to the charge of violating section 288(a), and Hernandez responded, “No contest.”

Later in the hearing, the court inquired as to whether Hernandez was willing to waive preparation of a presentence report. The prosecutor interjected: “We would ask the court to go ahead and get the sentencing report. We’re not in agreement with the sentence.”

In the instant case, in ruling on Hernandez’s motion to strike his 1998 conviction of violating section 288(a), the court stated as follows: “The Court [in the 1998 proceeding] failed to find that the defendant had made a knowing, intelligent, and full understanding waiver of his constitutional rights, which is a constitutional issue and defect. [¶] The court failed to find that the defendant’s plea was freely and voluntarily made, with an understanding of the nature and consequences thereof. And the Court failed to make a factual basis, finding that the plea was, as to what the source of the factual basis for the plea was. In fact, the Court didn’t make a finding that there was a factual basis for the plea at all. [¶] Based upon that, I believe . . . that this Court must strike the prior as a violation of the defendant’s constitutional rights to have a court make a finding that there is a knowing, voluntary, expressed, explicit, and understanding waiver of his constitutional rights and that the defendant’s plea was freely and voluntarily made with an understanding and nature of the consequences thereof, and the Court’s failure to find that there was factual basis for the plea. Therefore, the request to strike the prior is granted, reluctantly.”

DISCUSSION

Under section 1385, a trial court may strike a prior felony conviction allegation “in furtherance of justice.” (§ 1385.) “On appeal, we review the court’s ruling [to strike or not strike a prior conviction under section 1385] under the abuse of discretion standard.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) The People first argue that the court abused its discretion in invalidating Hernandez’s plea in the 1998 case because, the People assert, it is of no moment that the court in the 1998 proceeding failed to “find” Hernandez (1) knowingly and intelligently waived his Boykin-Tahl rights, i.e., the right to jury trial, the right to confrontation of witnesses and the privilege against self-incrimination;^[6] (2) freely and voluntarily entered his plea; and (3) understood the consequences of his plea. We agree.

We first note that to the extent the court’s remarks indicate it found appellant’s 1998 plea invalid because of the lack of express findings, the court erred. We are aware of no requirement that the court make express findings that a plea was knowingly and voluntarily entered or that the defendant was advised of his Boykin-Tahl rights or the direct consequences of his plea. (Cf. People v. Smith (2003) 110 Cal.App.4th 492, 502 [court not required to make express finding of waiver of right to jury trial].)

We recognize that as a constitutional matter, a guilty plea is valid only when it is knowing, intelligent and voluntary, and a defendant who pleads guilty must be advised of and must waive his Boykin-Tahl rights. (Boykin v. Alabama, supra, 395 U.S. 238; In re Tahl, supra, 1 Cal.3d 122.) And a judicially created rule of nonconstitutional dimension requires that “before taking a guilty plea the trial court must admonish the defendant

of . . . the direct consequences of the plea.” (People v. Walker (1991) 54 Cal.3d 1013, 1022.) However, “a court may rely upon a defendant’s validly executed waiver form as a proper substitute for a personal admonishment [of the defendant’s Boykin-Tahl rights.]” (People v. Panizzon (1996) 13 Cal.4th 68, 83.) And a validly executed waiver form may also substitute for an admonishment by the court of the direct consequences of a plea. (People v. Ramirez (1999) 71 Cal.App.4th 519.) “[A] defendant who has signed a waiver form upon competent advice of his attorney has little need to hear a ritual recitation of his rights by a trial judge. The judge need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney. If the questioning of defendant and his attorney leads the judge to believe that the defendant does not in fact fully comprehend his rights, or the consequences of pleading guilty, however, the judge must conduct further canvassing of the defendant to ensure a knowing and intelligent waiver of rights.” (In re Ibarra (1983) 34 Cal.3d 277, 286, disapproved on other grounds, People v. Howard (1992) 1 Cal.4th 1132, 1174-1175.) In other words, the written waiver of Boykin-Tahl rights is sufficient, unless events during the hearing raise a doubt that defendant understood and knowingly waived his rights. (People v. Castrillon (1991) 227 Cal.App.3d 718, at p. 722) “So long as the waiver form contains sufficient information, and both the defendant and his counsel attest to its valid execution, the judge may, in his discretion, dispense with further explanation to the defendant of his rights.” (In re Ibarra, supra, 34 Cal.3d at p. 286.)

Here, there is nothing in the record to raise a doubt that Hernandez understood his rights and the consequences of his plea and knowingly waived his rights, so as to prompt additional inquiry by the court. As indicated above, in executing the plea waiver form Hernandez indicated he understood his rights and gave them up; he understood the consequences of his plea, including the maximum term he could receive; he had spoken with his attorney and had had sufficient time to discuss his case; and he was entering his plea knowingly and voluntarily. And in court, in response to questioning from the court Hernandez attested that the plea waiver form had been read to him, he had executed it and he had no questions about it.

On this record, we conclude the court abused its discretion in finding Hernandez’s 1998 plea was invalid based on the absence of findings regarding the required admonishments and the knowing and voluntary nature of the plea.

The People next argue that the court abused its discretion in invalidating Hernandez’s plea based on the failure of the court in the 1998 proceeding to find a factual basis for Hernandez’s plea. On this point too we agree, although we reach this conclusion by a different route than that taken by the People.

“Section 1192.5 provides that for a conditional plea of guilty or no contest, the trial court is required 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.’ ” (People v. Holmes (2004) 32 Cal.4th 432, 438, emphasis added; accord, People v. Hoffard (1995) 10 Cal.4th 1170, 1180-1182.) A “conditional plea,” as that term is used in this context, is a plea as described in section 1192.5: an agreement between the prosecution and the defense that is approved by the court. (People v. Hoffard, supra, 10 Cal.4th at p. 1181.) “The first paragraph of section 1192.5 authorizes, for all but certain listed felonies, a plea of guilty, specifying the manner in which the court shall exercise its sentencing or other posttrial powers. The second paragraph provides that when ‘the plea’ is accepted by the prosecutor and approved by the court, the defendant cannot be sentenced to a punishment more severe than that specified by the plea. The third paragraph[] . . . contains the factual-basis requirement . . . .” (Ibid., emphasis added.) Thus, our Supreme Court held in Hoffard, the type of plea to which the factual-basis requirement applies “can only be the conditional plea made pursuant to the first paragraph and accepted and approved pursuant to the second paragraph.” (Ibid., emphasis added.) The court recognized that “[c]onducting a factual basis inquiry before accepting or entering judgment on a guilty plea may further important interests, even where such an inquiry is not required by section 1192.5,” but specifically declined to extend the requirements of section 1192.5 to cases not covered by the statute. (Id. at p. 1183.)

The People argue that the court failed to comply with section 1192.5 but that such error was harmless. A more fundamental issue, however, is whether section 1192.5 is applicable in the instant case, and the answer to that question depends, in turn, on whether appellant’s plea was a “conditional” one. (People v. Holmes, supra, 32 Cal.4th at p. 438.) As indicated above, although the prosecutor and defense reached an agreement that appellant would plead guilty to one offense and would receive a prison term, there was no agreement as to the length of that term. Thus, the court’s proposed disposition was not “accepted” by the prosecutor. (§ 1192.5, 2d par.) Indeed, the prosecutor specifically stated he objected to the three-year term indicated by the court. Therefore, in the 1998 proceeding the court had no duty to inquire into, and satisfy itself as to, the factual basis for Hernandez’s guilty plea. (People v. Hoffard, supra, 10 Cal.4th at p. 1184.)

And even if section 1192.5 did apply, as appellant asserts, the court’s failure to comply must be deemed harmless. A court’s error in failing to comply with section 1192.5 “will qualify as 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.) Thus, “when trial counsel stipulates to a factual basis for a plea, but appellate counsel claims the plea lacks an adequate factual basis, an appellate court may review the record to determine if it meets the factual basis requirement.” (People v. Mickens (1995) 38 Cal.App.4th 1657, 1664.) The court in Mickens found that an adequate factual basis was established by the probation officer’s report. Similarly, in People v. Watts (1977) 67 Cal.App.3d 173 the appellate court held the trial court erred in failing to conduct the inquiry required by section 1192.5, but such error was harmless because the grand jury transcript, which provided an ample factual basis for the charges, was “contained in the superior court file.” (Id. at p. 181.)

In the instant case, counsel stipulated to the factual basis in the plea waiver form and the court had in its file the preliminary hearing transcript. We have examined that transcript, and determined it clearly establishes a factual basis for Hernandez’s 1998 plea. On this record, the court’s invalidation of that plea on section 1192.5 grounds constituted an abuse of discretion.

DISPOSITION

The judgment is reversed. The matter is remanded to allow Hernandez to withdraw his plea; afford the People the opportunity to reinstate the original charges and special allegations; and allow the court to conduct further proceedings as appropriate.

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^* Before Dibiaso, Acting P.J., Levy, J., and Cornell, J.

^[1] All statutory references are to the Penal Code. We refer to subdivision (a) of section 288 as section 288(a).

^[2] We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^[3] Hernandez has not filed a brief in the instant appeal.

^[4] The facts of the instant offense are not relevant to the issues raised on appeal. Therefore, we will forgo recitation of those facts.

^{[[5] ]} A different judge presided at the 1998 hearing discussed here.

^[6] (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.)