Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. BF116913A, Michael B. Lewis, Judge.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.
Willie Raul Harris-Velasquez pled guilty to one count of receiving stolen property (Pen. Code, § 496, subd. (a)) in exchange for (1) a mitigated sentence of 16 months in state prison, (2) dismissal of a second charge, (3) dismissal of a prior prison term enhancement, and (4) his codefendant being allowed to plead guilty to a misdemeanor charge. Prior to sentencing, Harris-Velasquez moved to withdraw his plea. The trial court denied the motion and sentenced Harris-Velasquez to the agreed-upon term of 16 months. Harris-Velasquez appeals the denial of his motion to withdraw his plea and the trial court’s failure to obtain an adequate factual basis for the plea as required by section 1192.5. We affirm the judgment.
Mr. Harris-Velasquez has used several names but has stated he prefers “Harris-Velasquez” as a last name. We will accede to his preference. As a result, we will direct the trial court to prepare an amended abstract of judgment reflecting the preferred name and forward a copy to the appropriate agencies.
All further statutory references are to the Penal Code unless otherwise stated.
DISCUSSION
I. Motion to Withdraw the Plea
Section 1018 provides in relevant part that on defendant’s motion made “at any time before judgment … the court may … for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.… This section shall be liberally construed to effect these objects and to promote justice.” The moving defendant bears the burden to prove good cause exists to withdraw his plea by clear and convincing evidence. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456 (Nance), and the cases cited therein.) “Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion. [Citation.]” (Ibid.)
Harris-Velasquez cites to the concurring opinion in Nance to suggest the defendant’s burden of proof should be by a preponderance of the evidence. The concurring opinion in Nance did reach this conclusion “to generate needed discussion and analysis of the issue within and by the legal community .…” (Nance, supra, 1 Cal.4th at p. 1459 (conc. opn. of Timlin, J.).) Nance has been cited by 100 cases and, while we have not reviewed each case, Harris-Velasquez has not cited a single case that has adopted the approach urged by the concurring opinion. Accordingly, we are confident that the clear and convincing evidence standard enunciated in the Nance majority opinion and the cases cited therein has been accepted as the proper standard of proof in a section 1018 motion to withdraw a guilty plea.
Harris-Velasquez argues that his motion should have been granted because a proper investigation was not conducted into possible defenses to the charges. We disagree. Harris-Velasquez’s trial counsel testified at the hearing on the motion. Trial counsel admitted he had not conducted any investigation into the charges and possible defenses because the plea was entered only 10 days after the case was assigned to the public defender’s office. Trial counsel had visited Harris-Velasquez for approximately one hour while he was incarcerated wherein they discussed the contents of the police report, and he informed Harris-Velasquez of the offer made by the People to resolve the case. Harris-Velasquez stated that he wanted to accept the plea to allow the codefendant to plead to a misdemeanor. Trial counsel advised Harris-Velasquez that it would be better to wait until the preliminary hearing to decide on the plea so Harris-Velasquez could discuss the matter with his wife. Trial counsel did not discuss withdrawal of the plea with Harris-Velasquez.
It is clear from this testimony, which was not contradicted, that the lack of investigation was the direct result of Harris-Velasquez’s decision to ignore the advice of counsel and enter a plea before the preliminary hearing. Under these circumstances, trial counsel was not ineffective for failing to conduct an adequate investigation into potential defenses to the charges.
Harris-Velasquez also argues that he should be allowed to withdraw his plea because he was told he could do so, but was not told he would have to establish good cause before his motion would be granted.
The record demonstrates that Harris-Velasquez was not informed by trial counsel or the trial court that he could not withdraw his plea except upon a showing of good cause. It appears the topic was not discussed. However, no statute or decision holds that a trial court must advise a defendant that he may not withdraw a plea except upon a showing of good cause. Indeed, the Boykin-Tahl line of cases is limited to advisements of the right to remain silent, the right to a jury trial, the right not to incriminate one’s self, the right to confront witnesses, and the right to subpoena witnesses to testify at trial. We cannot perceive of any good reason to impose an obligation on trial courts to inform defendants who choose to plead guilty (or no contest) that they may not change their mind unless good cause exists. Accordingly, we decline the invitation to do so.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Nor does trial counsel’s failure to inform Harris-Velasquez of what he must prove to change his plea constitute good cause to permit Harris-Velasquez to withdraw his plea. Harris-Velasquez entered his plea against his attorney’s advice. Harris-Velasquez asserted in his declaration that he “understood” that he could “withdraw [his] plea and start over.” He does not state how or why he came to this understanding. Apparently, his attorney did not so inform him. In the absence of either the trial court or trial counsel so informing Harris-Velasquez, his understanding is irrelevant.
Also, the trial court’s comment referred to by Harris-Velasquez does not form a basis for a good cause finding. The trial court explained that the plea agreement was dependent on both Harris-Velasquez and his codefendant pleading guilty. If either defendant did not plead guilty, or later withdrew his plea, the matter would be reinstated as to both defendants. The trial court did not state that Harris-Velasquez could withdraw his plea for any reason. Harris-Velasquez may have assumed he could withdraw his plea for any reason, but this assumption does not constitute the good cause required by section 1018.
When taking Harris-Velasquez’s plea, the trial court explained that the plea for Harris-Velasquez and his codefendant were “a package deal.” “Now, those pleas will remain in effect as long as each party -- as long as the plea remains in effect as to each defendant. That means it’s a package deal. [¶] If either defendant withdraws their plea, that matter is withdrawn as to the other defendant, all charges are reinstated, and we start all over again just as if the plea had never been entered.”
Since Harris-Velasquez did not demonstrate good cause for withdrawing his plea, the trial court did not abuse its discretion in denying his motion.
II. Factual Basis for the Plea
Section 1192.5 provides, in relevant part, that when accepting a plea agreement to a felony, the trial court must satisfy itself that there is a factual basis for the plea. The trial court “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 (2004) 32 Cal.4th 432, 436 (Holmes).)
People v. Willard (2007) 154 Cal.App.4th 1329, 1334-1335 held that a stipulation by the attorneys that a factual basis for the plea exists without reference to a specific document does not meet the requirements of section 1192.5. In this case, the trial court accepted a stipulation by the parties without reference to a specific document. Accordingly, the People concede the trial court did not comply with section 1192.5.
However, “[a] finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea. [Citation.]” (Holmes, supra, 32 Cal.4th at p. 443.) The People argue the error in this case was harmless because an adequate factual basis for the plea can be found in the probation report contained in the record. We agree.
The probation report states that on November 12, 2006, officers responding to a report of a burglary in progress observed Harris-Velasquez standing outside of the residence. The victim, Patricia Johnson, identified Harris-Velasquez as the individual she had seen inside the residence. The codefendant, Sheila Loll, Harris-Velasquez’s sister-in-law, was located in a vehicle a short distance from the residence where Harris-Velasquez was being detained. Loll stated that Harris-Velasquez used a key to enter the residence and then removed items from inside the residence. The vehicle was searched and items belonging to the victim were recovered. Plainly, these facts adequately support the plea.
Harris-Velasquez argues that the probation report cannot be considered because it is hearsay and was not prepared until six months after he entered his plea. We reject both arguments. First, the record need only establish a prima facie factual basis for the charges. (Holmes, supra, 32 Cal.4th at p. 441.) Indeed, a sufficient factual basis can be obtained from trial counsel, which is hearsay, or from a police report, which also is hearsay. Obviously, it is not necessary that the documents in the record meet the evidentiary requirements for admission at trial.
Second, the standard set forth in Holmes does not require that harmless error analysis be limited to those documents in the file at the time the plea was entered into by the parties. We may refer to the entire record. In this case, the entire record establishes a factual basis for the plea that meets the requirement of section 1192.5.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the name “Harris-Velasquez” as appellant’s last name and forward a copy to the appropriate agencies. (See footnote 1, ante.)