Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC811742
Duffy, J.
Defendant Johnny Inthavong shot and seriously wounded another individual in a gang assault. He pleaded guilty to a felony, but the trial court considered the plea a mistake in form and corrected the sentence to enter judgment against him on another felony. On appeal, he claims this procedure was improper. He does not complain of the term of imprisonment he received, but argues that the abstract of judgment must be amended to reflect the felony to which he pleaded guilty.
The trial court initially found a factual basis for a crime that defendant did not commit, overlooking the factual basis for the crime he did commit. This, of course, was untenable, but the court and parties failed to notice the problem until it was too late. When they attempted to rectify it, three months later, they did so by agreeing among themselves to convict defendant of a crime without judicial process, in violation of constitutional due process principles and state law. We will reverse the judgment and remand the cause to the trial court for additional proceedings.
FACTS AND PROCEDURAL BACKGROUND
Because there was no jury trial, we derive the facts from the probation report. On June 26, 2008, defendant’s friend Jordan Keo went to a house party and exchanged words with members of a gang. Keo called defendant and told him about the incident. Within the space of an hour or two defendant got two different vehicle rides to the house, one from Keo and one from a different person. On each occasion, the driver drove by the house and defendant, in a passenger seat, shot at people congregated outside. The shot he fired on the first occasion missed, but the shot he later fired struck a man. The victim was critically wounded but survived.
Defendant pleaded guilty to being an owner or driver of a vehicle and knowingly permitting someone else to discharge a firearm from the vehicle. (Pen. Code, § 12034, subd. (b).) He admitted—inconsistently, given the circumstance that only one occupant of the vehicle fired at anyone—that he discharged a firearm and thereby caused great bodily injury. (§ 12022.53, subd. (d).)
All further statutory references are to the Penal Code unless otherwise indicated.
Subdivision (d) of section 12022.53 provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
The trial court and/or the parties evidently noticed the discrepancy, and when the record before us resumes, at sentencing, the court and the parties were ready to correct it. At the sentencing hearing, the court, with the prosecutor’s and defense counsel’s endorsement, sentenced defendant to the mitigated term of 16 months imprisonment on the different felony of “willfully and maliciously discharg[ing] a firearm from a motor vehicle”—subdivision (d), not subdivision (b), of section 12034—and imposed a consecutive term of 25 years to life imprisonment on the section 12022.53, subdivision (d), firearm allegation.
Subdivision (d) of section 12034 provides: “Except as provided in Section 3002 of the Fish and Game Code, any person who willfully and maliciously discharges a firearm from a motor vehicle is guilty of a public offense punishable by imprisonment in the county jail for not more than one year or in the state prison.” Fish and Game Code section 3002 does not apply to humans and hence has no bearing on the circumstances of this case.
Although defendant was present at the sentencing hearing, he was not invited to vacate his guilty plea and undergo another taking of the plea to reflect his admission of guilt or no contest to the crime he committed.
The foregoing is a summary of the relevant procedural history. We now quote from the record to cast further light on the procedure by which defendant’s plea of guilty to violating subdivision (b) of section 12034 became a sentence under subdivision (d) thereof occurred as follows:
First, defendant pleaded guilty to violating subdivision (b) of section 12034:
“THE COURT: Mr. Inthavong, I’m going to be asking you some questions today. As I go through these questions, I want you to listen very carefully, answer out loud with ‘yes’ and ‘no.’ If you don’t understand something or if you have a question, you stop me and tell me, and I will give you more time to talk with Ms. Dell.
“Will you do that for me? Out loud.
“THE DEFENDANT: Yes, sir.
“THE COURT: All right. The deal, resolution, in your case is as follows: [¶] You will plead guilty or no contest to count 4. Count 4 will be amended to a felony charge of Penal Code section 12034 subdivision (b), knowingly permitting discharge of a firearm from a vehicle. [¶] That is a felony; right?
The information originally accused defendant of a misdemeanor violation of subdivision (a) of section 12034, which provides: “It is a misdemeanor for a driver of any motor vehicle or the owner of any motor vehicle, whether or not the owner of the vehicle is occupying the vehicle, knowingly to permit any other person to carry into or bring into the vehicle a firearm in violation of Section 12031 of this code or Section 2006 of the Fish and Game Code.”
“MR. GILLINGHAM: Yes.
“THE COURT: So it’s amended—and you’re okay with the amendment, right? []Cause it’s charged as a misdemeanor here right now. This is charged as a misdemeanor, the (a) count.
“MS. DELL: Right.
“THE COURT: But you’re agreeing to the change?
“MS. DELL: I am, yes.
“THE COURT: I just want to make sure. So the People are going to amend count 4 to a felony violation of knowingly permitting someone to discharge a firearm from a vehicle. You will plead guilty or no contest to that felony charge. And you will admit that you personally and intentionally discharged a firearm in the course of committing that offense under [section] 12022.53 [, ] subdivision (d). That will be an amendment—or no, I guess that is what is alleged. That’s not an amendment.
“In exchange for that plea and admission, the agreement is that the remaining counts and allegation against you will be dismissed at time of sentencing, and you will receive a prison term of 26 years, four months, to life.
“Do you understand the agreement?
“THE DEFENDANT: Yes, sir.”
A few minutes later, the trial court proceeded as follows:
“THE COURT: Mr. Inthavong, in count 4 you’re charged with knowingly permitting someone to discharge a firearm from a vehicle on or about June 26, 2008, a felony violation of... section 12034[, subdivision] (b).
“What is your plea; guilty, not guilty, or no contest?
“THE DEFENDANT: Guilty.
“THE COURT: It is further alleged that in the commission of this offense, you personally and intentionally discharged a firearm, a handgun, and proximately caused great bodily injury as defined in... section 12022.7 to John Doe, a person other than an accomplice within the meaning of... section 12022.53[, subdivision] (d).
“Do you admit or deny the allegation?
“THE DEFENDANT: Admit.”
The trial court, as required, asked for and accepted a factual basis for the plea “based on the offense reports and stipulations of counsel.”
The foregoing colloquy occurred on May 18, 2010. On August 5, 2010, the trial court took up the case for sentencing:
“THE COURT: In Mr. Inthavong’s matter, this is an agreed upon term of 26 years, four months to life.
“Counsel, you waive arraignment on the judgment?
“MS. DELL: I do.
“THE COURT: Is there any legal cause sentence should not be imposed?
“MS. DELL: There’s none.
“THE COURT: And before we do sentence, we need to correct on page 1 of the report. Count 4 is actually a violation of section 12034[, subdivision] (d)...; correct?
“MS. DELL: Yes, Your Honor.
“THE COURT: Mr. Jhin?
“MR. [JHIN]: Yes, Your Honor.
“THE COURT: Thank you. All right. We’ll make that correction.
“And it should also be corrected on page 7 as well in the chart.
“All right. In this matter the defendant has agreed and the [d]istrict [a]ttorney does not object to the following sentence:
“On count 4, the defendant is sentenced to the mitigated term of 16 months in the state prison. The Court imposes 25 years to life consecutive to that for the enhancement under [section] 12022.53 [, ] subdivision (d). The total term is 26 years, four months to life.”
The trial court’s minute order reflecting the judgment and sentence contains this handwritten annotation: “CT [Count] 4 corrected to read PC 12034(d); change of plea minutes reflects clerk’s error.” The minute order notes that defendant was present for sentencing.
DISCUSSION
By the terms of subdivision (d) of section 12022.53, a 25-years-to-life firearms enhancement may be imposed for a violation of subdivisions (c) or (d) of section 12034, but the statute says nothing about subdivision (b) of section 12034. Nevertheless, defendant insists that he obtained the sentencing result he sought and therefore does not seek to overturn the plea agreement. He informs us that he “does not suggest [that] his sentence of 26 years and 4 months to life must be changed. [He] agrees [that] he received a favorable bargain.... He does not seek to reduce his sentence. His only contention is that the [trial] court cannot change the crime he admitted committing at his change of plea.” He wishes only to “amend[] the abstract [of judgment] to reflect the true facts in the record.”
In some cases, amending the abstract of judgment is the correct course. In People v. Walker (1991) 54 Cal.3d 1013, a case involving a minimum restitution fine, the court discussed the judicial diseconomies involved in undoing a plea bargain so as to set a discretionary fine amount, when a reviewing court could remedy the situation by imposing the minimum $100 fine. (Id. at p. 1029.) The court noted other problems with undoing a plea bargain. “When the violation is not raised at sentencing but later, generally on appeal, the passage of time tilts the relevant interests strongly towards reducing the fine rather than undoing the plea bargain.... [¶] The People may also be prejudiced by nullifying the plea agreement. The passage of time may have caused some witnesses’ memories to dim. Other witnesses may be missing. Victims might be traumatized by the resurrection of a criminal proceeding long since believed resolved. In addition, a new hearing to allow the trial court to choose between striking the fine and allowing withdrawal of the plea, with the necessity of transporting the defendant from prison elsewhere in the state and the concomitant security arrangements, would often cost the criminal justice system far more than might actually be collected as part of the restitution fine.” (Id. at pp. 1028-1029.)
Sometimes, however, such judicial diseconomies, discomfort to witnesses, and even the risk that a case may now be too stale to be prosecuted must be incurred. The latter would be an abhorrent result, of course, given that defendant shot and almost killed someone following a trivial gangland dispute. Yet this is such a case. A trial court lacks authority to enter judgment against a criminal defendant on an offense when he was not formally found to have committed that offense, be it by jury verdict, judgment following a court trial, or plea of guilty or no contest.
The People state that if we “agree[] with [defendant] that the [trial] court lacked authority, even with the agreement of counsel, to amend the record to show violation of section 12034, subdivision (d), and believes that the agreed imposition of the... section 12022.53, subdivision (d) enhancement has been undermined, the appropriate remedy is not amendment of the judgment, but remand to the trial court, as the prosecutor may wish to move the court to return the matter to the status quo ante.” We agree that this is what we must do.
Beyond what we have just quoted from the People’s brief, neither party’s views do much to persuade us. The People advance dubious legal arguments, and defendant is unconvincing about his ultimate goals.
“A guilty plea is, for most purposes, the legal equivalent of a verdict of guilty reached by a jury.” (People v. Valladoli (1996) 13 Cal.4th 590, 601.) It is so for the purposes defendant complains of here. “No person can be punished for a public offense, except upon a legal conviction in a court having jurisdiction thereof.” (§ 681.) “[E]very plea, ” including a guilty plea, “shall be entered or withdrawn by the defendant himself or herself in open court.” (§ 1018.) Here, defendant’s only guilty plea, i.e., admission of a public offense, was to violating subdivision (b) of section 12034. Neither the parties nor the court could decide on his behalf that he was guilty of another public offense and alter his plea nunc pro tunc.
Defendant’s guilty plea to violating subdivision (b) of section 12034 places him in the same position as if a jury had convicted him of that offense. (See People v. Valladoli, supra, 13 Cal.4th at p. 601.) Certainly had there been a verdict rather than a guilty plea, the trial court could not decide that there was insufficient evidence to support the conviction actually obtained and substitute by court order a conviction for a different public offense more in line with the evidence. The most that a trial or reviewing court could do in that situation would be to reverse (see Jackson v. Virginia (1979) 443 U.S. 307, 317) or otherwise set aside the judgment (§ 1181, subds. 6, 7), sometimes precipitating a new trial. At most, a court may modify a judgment of conviction by imposing a conviction of a lesser included offense or the same offense but of a lower degree if the evidence justifies it (§ 1181, subd. 6), or a lesser punishment when “as a part of its verdict or finding” the trier of fact determines or recommends the punishment (§ 1181, subd. 7).
The People argue that “[defendant’s] admission to count 4 did not exclude him as the shooter from the vehicle.” The import of this argument is that there is a factual basis for the trial court’s and parties’ decision to convict defendant of subdivision (d) of section 12034. We cannot agree. First, the plea colloquy shows that the trial court had in mind, in line with the statutory language of subdivision (b) of section 12034 but contrary to the facts, that defendant permitted someone else to fire from the vehicle. The court said, “Mr. Inthavong, in count 4 you’re charged with knowingly permitting someone to discharge a firearm from a vehicle....” The foregoing language cannot be sufficiently massaged to allow an interpretation of it in which defendant himself shot at someone. Generally one does not speak of “permitting someone” to do something when one has done that thing oneself.
The People also argue that the trial court acted only in excess of its jurisdiction and did not lack fundamental jurisdiction to do what it did, and that because defendant pleaded guilty he is not entitled to complain on appeal. They call our attention to People v. Flood (2003) 108 Cal.App.4th 504.
Flood stated, “ ‘ “Where defendants have pleaded guilty in return for a specified sentence, appellate courts are not inclined to find error even though the trial court acts in excess of jurisdiction in reaching that figure, as long as the court does not lack fundamental jurisdiction. [Citations.] The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to ‘trifle with the courts’ by attempting to better the bargain through the appellate process. [Citation.]” ’ ” (People v. Flood, supra, 108 Cal.App.4th at p. 508.)
No court, however, has jurisdiction to pronounce a criminal defendant guilty of a public offense merely by agreeing with counsel that the defendant is guilty. “A court acts in excess of its jurisdiction when ‘it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ ” (People v. Tindall (2000) 24 Cal.4th 767, 776.) The trial court’s action went well beyond the foregoing; it convicted defendant of a crime without due process of law and in violation of sections 681 and 1018. Therefore, People v. Flood, supra, 108 Cal.App.4th 504, does not aid the People. The rule Flood describes means that “[t]he action of a defendant, or minor, to have the advantage of the bargain yet attack its provisions as unauthorized by law, amounts to trifling with the court, a tactic courts do not countenance.” (In re V. B. (2006) 141 Cal.App.4th 899, 906, italics omitted.) Defendant is not challenging the provisions of his plea bargain or the resulting punishment; he is challenging the court and counsels’ attempt, without his express consent, at a novation of the agreement he entered into. His point is not that he could not be punished for a crime for which he formally accepted responsibility through his guilty plea. Rather, his point is that he cannot be punished for a crime when the government did not “secure[] a formal adjudication of guilt in accordance with due process of law” (Ingraham v. Wright (1977) 430 U.S. 651, 671-672, fn. 40), even if certain evidence untethered to any such adjudication shows that he committed it. Defendant is correct in this respect. (Compare People v. Tindall, supra, 24 Cal.4th at p. 776 [“the trial court acted in excess of its jurisdiction by permitting the amendment [of the information] to add previously unalleged prior convictions after discharging the jury”].)
Although defendant is correct about the legal problem, it is the People, not defendant, who propose the correct remedy.
As stated, the People propose that the case be remanded to the trial court for new proceedings, such as a properly reached guilty plea or a trial. We agree that this must be done. Defendant, conversely, asks that “[t]he minute order of sentencing and the abstract of judgment... be corrected to reflect the crime of which Inthavong was convicted.”
We cannot agree with defendant’s suggestion.
First, a guilty plea must be accompanied by the trial court’s finding a factual basis for the offense to which the defendant is pleading guilty. “The court shall... 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.” (§ 1192.5, 3d par.) The factual-basis finding is integral to the soundness of the plea proceedings: “ ‘Although not constitutionally required [citation], such an inquiry furthers constitutional considerations attending a guilty plea [citation], protects against the entry of a guilty plea by an innocent defendant, and makes a record in the event of appellate or collateral attacks on that plea. [Citation.] Given these significant policy considerations, a failure to make a sufficient inquiry, while not a constitutional or jurisdictional requirement, is one of the “other” grounds going to the legality of the proceedings in the trial court. Even though a defendant may in fact be guilty of the offense to which he pleads guilty, given the policy considerations underlying the intent behind section 1192.5, an adequate inquiry into the factual basis for the plea addresses broader issues such as the voluntariness of the plea and a knowing decision to plead guilty. A sufficient factual inquiry must be considered a necessary component of the legality of the proceedings.’ ” (People v. Coulter (2008) 163 Cal.App.4th 1117, 1121.) “The Legislature could rationally have believed this situation—a negotiated plea—creates an especially high risk the defendant will plead to a crime he or she did not commit and for which no factual basis can be established. Section 1192.5, third paragraph, is designed to protect against that result.” (People v. Hoffard (1995) 10 Cal.4th 1170, 1182.)
Second, defendant has shown that he is a dangerous individual with little or no appreciation for the value of human life. His long and indeterminate sentence protects the public from further attempts at death-dealing conduct outside prison walls until he can show the parole board that he has rehabilitated himself. Although defendant attempts to assure us that he is satisfied with his sentence, we cannot ignore the United States Supreme Court’s warning that “the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment.” (Ingraham v. Wright, supra, 430 U.S. at pp. 671-672, fn. 40.) Working a novation of the disposition, as the trial court and parties mistakenly attempted to do, leaves too many uncertainties. With defendant present for sentencing, and defendant maintaining to this day that he does not contest the prison term he received, the trial court should have vacated his prior plea on the day set for sentencing, taken his plea of guilty of the crime he committed, and then sentenced him. Although remanding the case to the trial court for additional proceedings three years after defendant committed his crime also presents uncertainties—witnesses may be now difficult to locate, for example—we think it is the best of the alternatives available.
DISPOSITION
The judgment is reversed. The case is remanded to the superior court with directions to set aside defendant’s guilty plea, reinstate or permit the reinstatement of the original charges, and entertain such additional proceedings as the People may elect to pursue.
WE CONCUR: Rushing, P. J., Premo, J.
Subdivision (b) of section 12034 provides: “Any driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, who knowingly permits any other person to discharge any firearm from the vehicle is punishable by imprisonment in the county jail for not more than one year or in state prison for 16 months or two or three years.