Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM027058.
HULL, Acting P.J.
Defendant entered a negotiated plea of no contest to one count of home invasion robbery in concert with two or more others (Pen. Code, §§ 211, 213, subd. (a)(1)(A)) and admitted an enhancement for personal use of a firearm (id., § 12022.53, subd. (b)). He was sentenced to the upper term of six years plus 10 years for the enhancement. Defendant appeals contending the trial court failed to obtain a factual basis for his plea and the upper-term sentence violated his Sixth and Fourteenth Amendment rights. We find no prejudicial error and affirm the judgment.
Facts and Proceedings
In light of defendant’s no contest plea, the facts are taken from the probation report.
On May 5, 2007, defendant and two others, Brian Felix and Lorayna Gonsalves, entered a residence where three individuals were sleeping and robbed them of various items of property, including $1,100 in cash. Defendant was armed with a firearm and pointed it at one of the victims, telling her not to move. The three then moved down a hall and kicked in a bedroom door where two of the victims had been sleeping. Defendant pointed the gun at one of these victims as well, while Felix struck the victim in the face and Gonsalves kicked him several times in the leg. Defendant and the others eventually fled on foot.
Defendant was arrested five days later and charged with home invasion robbery and an enhancement for personal use of a firearm. The court thereafter granted the People’s motion to add a second count of home invasion robbery. Defendant entered a plea of no contest to this later charge and admitted personal use of a firearm. The original charge was dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754).
Defendant was sentenced to the upper term of six years on the robbery count and a consecutive term of 10 years for the enhancement.
Discussion
I
Factual Basis for Plea
After the court accepted defendant’s no contest plea and admission of the enhancement, the following colloquy ensued:
“THE COURT: All right. Do counsel stipulate to a factual basis?
“MR. STAPLETON [defense counsel]: Yes.
“MR. MURPHY [the prosecutor]: Stipulate.
“THE COURT: All right. The court will find your waiver of rights is knowing and intelligent and your plea and admission are freely and voluntarily entered. Based thereon, the Court will accept each.”
Defendant contends the foregoing failed to satisfy the trial court’s obligation to determine if a factual basis exists for his plea. We agree.
Penal Code section 1192.5 requires a trial court, upon entry of a plea of guilty or nolo contendere, 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.” (Pen. Code, § 1192.5.) “The extent of the inquiry must be left to the discretion of the trial court, but it should develop the factual basis on the record. [Citation.] The trial court should ask the accused to describe the conduct that gave rise to the charge, make specific reference to those portions of the record providing a factual basis for the plea, or elicit information from either counsel.” (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576.)
The trial court here did none of the foregoing. The parties stipulated to a factual basis, but the court failed to make any findings or inquiry in this regard.
The People contend a factual basis for the plea can be found in the probation report. They argue that, prior to entry of his no contest plea, defendant signed a plea form in which he stipulated that a factual basis for the plea exists and that the court may take facts from probation reports, police reports or other sources as necessary to establish the factual basis. The People further argue that, at sentencing, the court stated it reviewed the probation report that defendant “stipulated could form the factual basis for his plea.” Finally, the People argue a probation report can provide the factual basis for a plea, citing People v. Holmes (2004) 32 Cal.4th 432 (Holmes).
In Holmes, the California Supreme Court summarized the requirements for obtaining a factual basis for a negotiated plea as follows: “[I]n order for a court to accept a conditional plea, it must garner information regarding the factual basis for the plea from either defendant or defense counsel to comply with [Penal Code] 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.]” (Holmes, 32 Cal.4th at p. 436.)
While Holmes suggests a factual basis may be established from a probation report, the case it cites as support, People v. Wilkerson, supra, 6 Cal.App.4th 1571, does not so hold. Wilkerson involved use of a police report, not a probation report. This is a significant distinction. Presumably, police reports are available to the court at the time a plea is taken and, therefore, would be available for the court’s reference. However, a probation report prepared for the case sub judice is not typically available until after the plea is taken.
The purpose underlying the requirement that the court inquire about a factual basis “is to ‘“protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged.”’” (People v. Wilkerson, supra, 6 Cal.App.4th at p. 1576.) An unskilled defendant might stipulate to a factual basis for the conviction without realizing no such factual basis exists.
When the Supreme Court in Holmes referred to a probation report as a potential source for a factual basis for a plea, the court may have intended to suggest the trial court could defer determination of a factual basis until after the probation report is prepared. This was what occurred in People v. Coulter (2008) 163 Cal.App.4th 1117 (Coulter). There, after accepting the defendant’s negotiated plea, the trial court said, “‘[t]he factual basis will be reserved for the time of sentencing.’” (Id. at p. 1120.) The defendant did not object. However, before sentencing, the defendant obtained new counsel and moved to withdraw the plea based on the court’s failure to find a factual basis before accepting the plea. The trial court denied the motion. (Ibid.)
The Court of Appeal affirmed, concluding the requirement for finding a factual basis may be satisfied at the time of sentencing. The court explained: “[A]ppellant personally and former counsel knew that no probation [report] was then in existence. Everyone contemplated that one would be prepared for the sentencing hearing. Appellant did not object and thus impliedly agreed to this procedure. He is estopped from, attacking it. Even if there was error, it is subject to harmless error analysis.” (Coulter, supra, 163 Cal.App.4th at p. 1122.) The court thereafter found any error harmless because the probation report provided a sufficient factual basis for the plea.
The present matter is readily distinguishable from Coulter. Here, the trial court did not defer consideration of the factual basis until sentencing. In fact, other than asking the parties if they stipulated to a factual basis, the court did nothing. This did not satisfy the requirements of Penal Code section 1192.5.
Nevertheless, at sentencing, the court indicated it had read and considered the probation report. The court thereafter stated there was a factual basis for the plea. Read generously, one may infer from this that the court found a factual basis for the plea in the probation report. Thus, at the time of sentencing, the court corrected its error in failing to assure itself of a factual basis at the time of the plea. To ignore this subsequent action, “would be an exaltation of form over substance.” (Coulter, supra, 163 Cal.App.4th at p. 1122.)
At any rate, as in Coulter, any error in failing to determine a factual basis is subject to harmless error analysis. In this regard, we consider whether “the record contains sufficient information to ensure the defendant committed the acts to which the plea was entered.” (People v. Wilkerson, supra, 6 Cal.App.4th at p. 1576; see People v. Tigner (1982) 133 Cal.App.3d 430, 435.)
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) Where the defendant commits the robbery in concert with two or more others in an inhabited dwelling house, it is first degree robbery. (Id., § 213, subd. (a)(1)(A).) Penal code section 12022.53 provides for additional punishment where the defendant personally uses a firearm in connection with the underlying offense.
It is undisputed the probation report prepared in connection with this matter contains a sufficient factual basis to establish that defendant committed the charged offense and enhancement to which he earlier pleaded no contest and admitted. That report reveals defendant and the others entered the victims’ home and took personal property from them against their will while defendant pointed a gun at them. Nothing more is required.
II
Upper Term Sentence
Defendant contends imposition of an upper term sentence based on facts not found true by a jury beyond a reasonable doubt violated his Sixth and Fourteenth Amendment rights. At sentencing, the trial court imposed the upper term based on the following aggravating factors: (1) the crime involved great violence and the threat of great bodily harm; (2) the victims were particularly vulnerable; (3) the crime was premeditated; (4) defendant has a history of violence; (5) defendant’s prior adjudications as a juvenile are numerous; (6) and defendant’s performance on juvenile probation was unsuccessful. The court found no mitigating factors.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) In Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), the court applied Apprendi to California’s determinate sentencing law (DSL) and held that by assigning to the trial judge the authority to find the facts that expose a defendant to an upper term sentence, the DSL violates the defendant’s Sixth and Fourteenth Amendment rights. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
However, following Cunningham,the California Supreme Court concluded in People v. Black (2007) 41 Cal.4th 799 (Black) that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) If one or more aggravating factors have been so established, the consideration of other aggravating factors in arriving at the decision to impose the upper term does not implicate Cunningham. (Black, supra, 41 Cal.4th at p. 815.)
Here, the trial court relied on defendant’s prior adjudications as a juvenile. This recidivism factor alone sufficed to render defendant eligible for the upper term. (Black, supra, 41 Cal.4that p. 816; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394.) Consequently, the trial court’s consideration of other aggravating factors did not implicate Apprendi or Cunningham.
Disposition
The judgment is affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.