Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVA701280, Jon D. Ferguson, Judge.
Geoffrey M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
Defendant pled guilty to identity theft (count 1—Pen. Code, § 530.5, subd. (a)), resisting an executive officer (count 5—§ 69), and false imprisonment by violence (count 7—§ 236). On appeal, defendant claims his plea was constitutionally defective because neither the court nor defense counsel adequately apprised him of the nature and elements of the count 7 offense. We find that defendant’s plea was voluntary and intelligent under a totality of the circumstances and, therefore, affirm the judgment in full.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTAUL AND PROCEDURAL BACKGROUND
After officers were dispatched to Costco, a loss prevention officer informed them that defendant was attempting to use a Costco card that had been flagged for suspicious activity. When one of the officers located defendant, defendant immediately grabbed objects off the counter and ran into the women’s restroom.
The officer followed. Defendant ran into one of the stalls, closed the door, and prevented the officer from entering. Defendant began pulling items from his pockets and flushing them down the toilet. The officer observed large sums of cash and receipts fall to the ground of the stall. The officer kept yelling at defendant to exit the stall and attempted to gain access by kicking the door.
When the officer finally gained access to the stall, defendant crawled underneath the partition into the adjacent stall. Defendant crossed again into a third stall, which was occupied by a woman. The woman screamed for the officer’s help. The officer told the woman to exit the stall. She replied that she could not because defendant was holding her. The woman eventually climbed over the partition and exited the restroom. Another officer arrived and then both officers were able to enter the stall; defendant attempted to resist apprehension by hitting one of the officers. Defendant was eventually subdued, handcuffed, and taken into custody.
The Costco card defendant attempted to use belonged to Mark Andrews. The next day, loss prevention turned over an identification card they had found in the same name. Mr. Andrews informed officers that he did not know defendant and did not give defendant permission to use his name or identity.
The People charged defendant by first amended information with identity theft (count 1—§ 530.5, subd. (a)), second degree burglary (count 2—§ 459), attempted grand theft of personal property (count 3—§§ 664, 487, subd. (a)), false imprisonment of a hostage (count 4—§ 210.5), resisting an executive officer (count 5—§ 69), and destroying evidence (count 6—§ 135). The People additionally alleged defendant had sustained a prior prison term.
Prior to orally entering his plea, defendant signed and initialed a three-page plea agreement. The agreement provided that defendant would plead guilty to counts 1, 5, and an additional amended count 7 which would be added by the People. The additional count 7 was listed as “236 PC” and “false imprisonment.” The sentencing range for the count 7 offense was listed as “16-2-3.” Defendant initialed the box next to item 19, which states: “I have had sufficient time to consult with my attorney concerning my intent to plead guilty/no contest to the above charge(s) . . . . My lawyer has explained everything on this declaration to me, and I have had sufficient time to consider the meaning of each statement. I have personally placed my initials on certain boxes on this declaration to signify that I fully understand and adopt as my own each of the statements which correspond to those boxes.” The plea agreement additionally provided for the dismissal of counts 2, 3, 4, and 6, as well as the prior prison allegation. The agreed sentence was to be two years’ incarceration in state prison, concurrent on all counts. Defense counsel signed the portion of the plea agreement providing that he had “personally read and explained the contents of the [plea agreement] to the defendant; that [he] personally observed the defendant sign [the agreement]; that [he] concur[red] in the defendant’s withdraw of [his] plea(s) of not guilty; and that [he] concur[red] in the defendant’s plea(s) of guilty . . . as set forth by the defendant in the above [agreement].”
At the taking of defendant’s plea, the court asked if defendant had gone over and understood everything on the plea form. Defendant replied that he had and did. The court asked if defendant had adequate time to go over the plea agreement with his counsel. Defendant again replied that he had. Finally, the court asked defense counsel if he had gone over the plea form with defendant and whether he believed defendant understood everything on the form. Defense counsel replied that he had and defendant did. The court took the oral motion of the People to add the count 7 allegation of “false imprisonment by violence[.]” The court found that defendant understood “the nature of the charges to which [he was] pleading[.]” Defendant orally entered a plea of guilty to count 7 as explicitly read by the court to be “false imprisonment by violence, in violation of Penal Code Section 236, a felony[.]”
The court sentenced defendant in accordance with his plea. The additional counts and allegation were dismissed. Defendant received a total of 374 days of custody credits.
II. DISCUSSION
Defendant contends that his guilty plea on the count 7 offense was not knowing, intelligent, and voluntary and, hence, constitutionally defective because there was no explicit explanation of the elements of the offense on the record. We find that, under a totality of the circumstances, defendant’s plea was voluntary and intelligent and, therefore, constitutionally valid.
“A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.’ [Citation.] Where a defendant pleads guilty to a crime without having been informed of the crime’s elements, this standard is not met and the plea is invalid. [Citation.]” (Bradshaw v. Stumpf (2005) 545 U.S. 175, 182-183.) However, “we have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel. [Citation.] Where a defendant is represented by competent counsel, the court usually may rely on that counsel’s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty.” (Id. at p. 183.)
Indeed, “even without such an express representation [that the judge or defense counsel have explained the charge to defendant], it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” (Henderson v. Morgan (1976) 426 U.S. 637, 647.) The test for determining whether a defendant’s plea admission is valid under both the federal and state Constitutions is whether, under the totality of the circumstances, the defendant’s admission is intelligent and voluntary. (People v. Mosby (2004) 33 Cal.4th 353, 360-361.) “[T]he reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. [Citation.]” (Ibid.)
After conducting an examination of the entire record, we conclude that defendant’s plea was voluntary and intelligent under a totality of the circumstances. It is true that neither defense counsel nor the court explained, on the record, the elements of the count 7 offense to defendant. It is further correct that the count 7 offense was added to the allegations against defendant at a late date and that he, therefore, did not have as lengthy a time to reflect upon or question his counsel regarding the nature of that offense as opposed to the other two counts to which he pled guilty. Nevertheless, it is abundantly clear that prior to entering his oral admission to the offense, defense counsel fully explained the nature of the plea agreement to defendant, including the elements of the count 7 offense.
Defendant was initially charged by complaint on August 7, 2007, with false imprisonment of a hostage under section 210.5. That charge survived the preliminary hearing held on September 25, 2007, and remained an allegation in the information filed on October 9, 2007, and the first amended information filed on April 11, 2008. It is notable that the elements of the crime of false imprisonment of a hostage under section 210.5 are substantially similar to those requisite to prove false imprisonment by violence under sections 236 and 237. (Judicial Council of Cal. Crim. Jury Instns., CALCRIM Nos. 1240, 1241.) Indeed, false imprisonment by menace, criminalized under the same statute as false imprisonment by violence and sharing the same triad of potential imprisonment, would likely be considered a lesser included offense of false imprisonment of a hostage. (See CALCRIM No. 1241.) Thus, it would appear that defendant had ample opportunity to reflect upon the crime he was originally charged with, which bore strikingly similar elements as that which he eventually pled to.
Moreover, it is apparent that defendant had plenty of time to discuss the elements of the crime which he did plea to, prior to entry of that plea. Negotiations between the People and the defense must have dealt specifically with the elements of both the count 4 offense and the added count 7 offense, as the count 4 offense exposed defendant to a potential triad of three, five or eight years’ imprisonment; more than twice what he faced in pleading to the count 7 offense. Thus, the elements of the amended, reduced offense as offered by the People in its negotiations with defendant would have been of special concern to defendant and his counsel, as it would determine the amount of incarceration defendant would eventually be facing. Defendant’s suggestion that the plea agreement’s failure to specifically note that he was pleading to false imprisonment by violence demonstrates that he was unaware of the requisite “violence” element is unavailing. While it is true that the plea agreement only reflects that defendant would be pleading guilty to “false imprisonment” under section “236,” the sentencing range for the amended count 7 offense was listed as “16-2-3.” This is the sentencing triad for felony false imprisonment by violence under sections 236 and 237. The agreed sentence to be imposed was two years’ incarceration in state prison. Simple false imprisonment without violence is a misdemeanor for which no state imprisonment may be imposed. (§ 236.) Thus, defense counsel’s explanation of the terms of the agreement would necessarily have incorporated the factual predicate to his plea to the count 7 offense, i.e., the requirement of violence; something more than is required for conviction of simple false imprisonment.
Indeed, it strains credulity to believe, on this record, that defense counsel did not specifically define the requisite elements for the proposed amended count 7 offense when he went over the agreement with defendant. As defendant noted by signing and initialing the plea agreement, he was given sufficient time to consult with defense counsel regarding the charges, defense counsel explained everything in the agreement to him, and he understood the meaning of each statement in that agreement. Defense counsel likewise signed the portion of the plea agreement specifically providing that he had explained the contents of the entire agreement to defendant. Furthermore, at the oral entry of defendant’s plea, defendant reiterated that he had plenty of time to go over the contents of the agreement with counsel, that defense counsel had gone over everything in the agreement with him, and that he understood everything in it. Defense counsel likewise stated that he had gone over the agreement with defendant and that defendant understood everything in it. Thus, the trial court’s conclusion that defendant understood “the nature of the charges to which” he pled was well supported.
Defendant’s argument that the court’s simultaneous taking of the pleas of two separate defendants undermines any determination that this defendant understood the elements of the count 7 offense is not well taken. While the court did take the pleas of both defendants at the same hearing, it did not take them contemporaneously. Rather, it went over the plea form with one of the defendants, and then went over the other defendant’s plea form thereafter. It, likewise, did so in explaining and taking a waiver of the defendants’ constitutional rights. Finally, it separately took defendant’s plea specifically to the charge of “false imprisonment by violence, in violation of Penal Code Section 236, a felony[.]” Thus, under a totality of the circumstances, defendant’s guilty plea was knowing and intelligent in every aspect, including the nature of the count 7 offense.
III. DISPOSITION
The judgment is affirmed.
We concur: Gaut Acting P.J., Miller J.