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Evaluating the Factual Basis of the Plea as a Potential Issue On Appeal

 

Introduction

A critical aspect of a negotiated/conditional plea of guilty or no contest is the requirement that there be a factual basis for the plea. Therefore, when evaluating potential issues on appeal following such a plea, appellate counsel should consider whether the trial court fulfilled its duty to satisfy itself that there is a factual basis for the plea. Identifying and successfully arguing the trial court’s failure to discharge this duty may afford the client an opportunity to withdraw his plea.

 

The Source of the Duty

In California, there are two types of guilty or no contest pleas: (1) a negotiated or conditional plea, where the plea is conditioned upon receiving a particular disposition; and (2) an open or unconditional plea. (People v. Hoffard (1995) 10 Cal.4th 1170, 1181.) When taking a negotiated/conditional plea of guilty or no contest to a felony charge, Penal Code section 1192.5 requires the trial court 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.” Penal Code section 1192.5 appears to be the sole source of this duty, as absent special circumstances, there is no federal constitutional requirement for this factual basis inquiry. (See Hoffard, supra, 10 Cal.4th at p. 1182, fn. 11; see also Rodriguez v. Ricketts (9th Cir. 1985) 777 F.2d 5267, 528.)

That being said, one could argue this requirement has grown out of constitutional considerations. In Santobello v. New York (1971) 404 U.S. 257 [30 L.Ed.2d 427, 92 S.Ct. 495], the United States Supreme Court addressed the federal counter-part to Penal Code section 1192.5, Rule 11 of the Federal Rules of Criminal Procedure. Chief Justice Burger, writing for the majority, stressed the necessity for developing the factual basis for the plea on the record, noting heavy workloads may explain, but not excuse, failures to do so. In a concurring opinion, Justice Douglas commented, “However important plea bargaining may be in the administration of criminal justice, our opinions have established that a guilty plea is a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial, Duncan v. Louisiana, 391 U.S. 145, to confront one’s accusers, Pointer v. Texas, 380 U.S. 400, to present witnesses in one’s defense, Washington v. Texas, 388 U.S. 14, to remain silent, Malloy v. Hogan, 378 U.S. 1, and to be convicted of proof beyond all reasonable doubt, In re Winship, 397 U.S. 358.” (Santobello, supra, 404 U.S. at p. 265; see also Boykin v. Alabama (1969) 395 U.S. 238, 242-243 [23 L.Ed.2d 274, 89 S.Ct. 1709] [“a plea of guilty is more than an admission of conduct, it is a conviction”].)

Accordingly, one could argue the necessity for a factual basis for the plea arises out of the due process right to be convicted on proof beyond a reasonable doubt. Importantly, the factual basis requirement prevents a defendant from entering a plea to an offense not supported by the evidence and “helps ensure that ‘the constitutional standards of voluntariness and intelligence are met.’” (People v. Holmes (2004) 32 Cal.4th 432, 438, citing Hoffard, supra, 10 Cal.4th at p. 1182, fn. 11; People v. Watts (1977) 67 Cal.App.3d 173, 178, citing 1 Wright, Federal Practice and Procedure (1969) § 174, pp. 376-377.)

In fact, in an unpublished decision, In re Michael V., F035974, the Fifth District found the juvenile court’s failure to establish a sufficient factual basis for the appellant’s admission to be an error of constitutional dimension and reversed the “true” finding. However, in his dissenting opinion, Justice Ardaiz asserts the error is not of constitutional dimension. Further, another court has found that section 1192.5 is not expressly applicable to negotiated dispositions in juvenile court because there is no comparable provision in the Welfare and Institutions Code. (In re Jermaine B. (1999) 69 Cal.App.4th 634, 640.)

 

The Scope of the Requirement

In Holmes, supra, 32 Cal.4th 432, the California Supreme Court addressed for the first time what a trial court must do to comply with the statutory mandate of Penal Code section 1192.5. In Holmes, as part of a plea bargain, the defendant pleaded guilty to count one of the complaint. In addition to the charged offense, the complaint set out the names of the defendant and victim, date and location of the crime, and a brief description of the factual basis. In the plea colloquy, the trial judge asked the defendant “[d]id you do what it says you did in Count 1 on March 24th 2000, in Riverside County?” Defendant answered “yes.” (Id. at p. 437.) The Court found the inquiry sufficient. It reasoned the complaint provided a “sufficiently precise factual account of the charged offense,” and the trial court’s questioning of the defendant was “adequate to establish that defendant was cognizant that his acts did constitute the offense with which he was charged, notwithstanding [his] letters to the court contesting his guilt.” (Id. at p. 443.)

In so reasoning, the Court examined the statutory language and legislative history of Penal Code section 1192.5, as well as Court of Appeal cases construing this section, and concluded that in order for a trial court to accept a conditional plea, it must inquire of either the defendant or defense counsel regarding the factual basis for the plea. The Court set out guidelines to assist the trial court in complying with this duty to inquire. For example, if the trial court inquires of the defendant, it may develop the factual basis on the record by questioning the defendant about the factual basis described in the complaint or written plea agreement or by having the defendant describe the conduct that gave rise to the charge. If the trial court inquires of defense counsel, it should request that counsel stipulate “to a particular document that provides a factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement.” (Holmes, supra, 32 Cal.4th at p. 442.) Because the statute requires that only a prima facie factual basis for the charge be established, the trial court need not interrogate the defendant about possible defenses nor be convinced the defendant is guilty. (Id. at p. 441.) However, the Court reiterated that under either approach, a summary statement by the judge that a factual basis exists, absent inquiry or any attempt to develop the factual basis, is inadequate. (Id. at p. 441.) The trial court’s acceptance of a plea after an inquiry as to the factual basis will be reversed only for abuse of discretion. (Id. at p. 434.) And a finding of error under this standard will be deemed harmless where the contents of the record support a finding of a factual basis for the plea.1 (Id. at p. 443.)

The Court in Holmes did not decide whether reference to a criminal complaint will be sufficient in a complex case and noted some federal cases have decided otherwise in related contexts. (Id. at p. 441-442, fn. 6.) The Court also declined to address whether defense counsel’s stipulation to a factual basis, absent reference to a particular supporting document, is adequate. (Id. at p. 442, fn. 8.) The Court approved of, but did not require, attaching a detailed and signed factual basis account to the plea agreement. (Id. at p. 442, fn. 7.)

 

Cognizability

In evaluating this issue, appellate counsel should be mindful of lurking cognizability issues. For example, in the unpublished decision of In re Michael V., supra, the Fifth District addressed the issue of whether the fact that a juvenile appellant did not move to withdraw his plea in the trial court precluded review of the factual basis for the plea on appeal. Both parties and the court agreed that where a juvenile files a timely notice of appeal, the court may review the record to determine if a factual basis for the plea exists. That is because the requirement for a certificate of probable cause, which is required under Penal Code section 1237.5 for appellant review of issues arising from a plea of guilty or no contest in an adult case, is inapplicable in juvenile cases. Similarly, the provisions of Penal Code section 1018, which provides that a motion to withdraw a plea of guilty or no contest in an adult case must be made prior to the entry of judgment, is inapplicable in juvenile cases. In contrast, Justice Ardaiz, in his dissenting opinion, concluded any error was waived under People v. Scott (1994) 9 Cal.4th 331 because it was not brought to the trial court’s attention. Therefore, he concluded any error in this regard must be raised by habeas.

As the foregoing suggests, in a case where the appellant never moved to withdraw his plea in the trial court, appellate counsel should be prepared to address waiver. (See also People v. Suite (1980) 101 Cal.App.3d 680, 689 [“As appellant’s guilty plea in effect admitted that the devices he possessed were explosive devices within the meaning of the statute, he cannot now raise that issue on appeal”].) Moreover, in an adult case, even if the appellant moved to withdraw his plea in the trial court, the issue is not reviewable on appeal unless the appellant obtained a certificate of probable cause. (People v. Ribero (1971) 4 Cal.3d 55, 63.

 

CONCLUSION

This issue is best presented in a case where the defendant entered a conditional plea, the trial court made no inquiry into the factual basis for the plea, defendant obtained a certificate of probable cause after he unsuccessfully moved to withdraw his plea in the trial court, and there is nothing in the record which the appellate court might review to conclude the error in accepting the plea without a factual basis was harmless. Because the oral plea is usually supplemented by a written plea form, counsel should be sure to review the written plea form as well in evaluating this issue.

1 If the only documents which would support the factual basis for the plea are not contained in the superior court file or record on appeal, odds are that the court taking the plea did not review them. In that case, appellate counsel could argue that since the trial court did not review them, the Court of Appeal cannot. Any attempt to argue that the trial court considered them, even if they are not part of the file, should be countered with a due process deprivation claim based on there being no reviewable record for appeal.

 

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