Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. LA053443 of Los Angeles Leland B. Harris, Judge
Steven C. Flanagan for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kristofer Jorstad, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Jose Rafael Sanchez Maidana appeals a judgment after the trial court denied his motion to vacate his no contest plea to one count of second degree commercial burglary (Pen. Code, § 459) and two counts of grand theft (§ 487, subd. (a)). We conclude that Maidana made a valid no contest plea. We affirm.
FACTS
On August 25, 2006, a store security guard saw Maidana take merchandise from several stores and then leave the premises without paying. Maidana placed the items in his car.
When the police arrested him, he was wearing a "booster girdle," a device he used to conceal the stolen items while he was in the stores. When the police searched his car, they recovered bags of stolen merchandise. Maidana told the police that he stole the items to support his family.
On September 13, 2006, the district attorney filed a "Felony Complaint" against Maidana. It included five counts of second degree commercial burglary (counts 1, 3, 5, 7 and 9), three counts of grand theft (counts 4, 8 and 10) and two counts of petty theft (counts 2 and 6).
In October, at the arraignment, Maidana pled not guilty to all counts. In November, the prosecutor suggested a plea bargain. In January of 2007, Maidana conferred with his attorney and they decided to enter into a negotiated plea agreement with the prosecution.
Maidana signed a written plea agreement which contained advisements of his constitutional rights, the rights he would be waiving by entering a no contest plea and the consequences of his plea. In the agreement, Maidana stated, "I hereby freely and voluntarily plead no contest to the charge(s) listed on page 1 [counts 1, 4 and 8]." He also checked the boxes on the form involving the various waivers he was making.
At a hearing on January 17, 2007, the prosecutor informed the court that Maidana "is going to enter no contest to counts 1, 4 and 8 for one year [in] county jail, three years formal probation and he is to stay away from all victims." Both Maidana and his counsel told the court that the prosecutor correctly set forth the plea agreement.
The court questioned Maidana about the written plea agreement, the waiver of his constitutional rights and the consequences of his plea. It then stated: "Very well. The court accepts the defendant's plea. The court is signing the findings in [the] order at the end of the waiver form, adopting those findings, incorporating them and making them part of the record at this time."
On April 26, 2007, Maidana filed a "motion to withdraw previously entered plea." He claimed "good cause exists for the withdrawal of the pleas of no contest" based on ineffective assistance of counsel.
On July 16, 2007, the court denied the motion. It found that Maidana had two months to consider the prosecution's offer for a plea agreement before he pled no contest, and that had the case gone to trial it would have been a "slam-dunk" for the prosecutor. The People's case was strong and there was an eyewitness. The court said when Maidana was apprehended he admitted he had stolen merchandise. The police found "17 shirts from the GAP" and "multiple items of clothing from [Abercrombie] & Fitch" in his car. The court found that the plea agreement was for his benefit and he received an "extremely lenient" sentence.
DISCUSSION
A Valid No Contest Plea?
Maidana contends that he never entered a no contest plea to the charges. He suggests that his conviction is invalid because even though he signed a plea agreement, he never uttered the words "I plead no contest" at the court hearing. We disagree.
Maidana did not raise this issue in the trial court. His motion to vacate his plea was based on ineffective assistance of counsel. In that motion, and in the subsequent trial court proceedings, he repeatedly acknowledged that he had pled no contest. But that is the opposite of what he is now contending. Maidana should have raised his defective plea issue in the trial court, instead of asserting it for the first time on appeal. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1386-1387; People v. Thomas (1959) 52 Cal.2d 521, 528-529.) '"'"The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so they may be corrected . . . . "'" (People v. McClellan (1993) 6 Cal.4th 367, 377.) But even on the merits, the result is the same.
We review the "totality of the relevant circumstances" to determine whether the defendant made a constitutionally adequate and valid plea. (People v. Howard (1992) 1 Cal.4th 1132, 1180; see also People v. Allen (1999) 21 Cal.4th 424, 439, fn. 4.) We consider the defendant's in court statements as well as any plea agreement he or she may have signed. (In re Moss (1985) 175 Cal.App.3d 913, 925, fn. 7 ["the desire to plead guilty along with all the other statements contained on the plea form unmistakably indicate an intent to plead guilty"].)
"In most cases, a defendant may enter a plea of guilty without any particular incantation." (In re Moss, supra, 175 Cal.App.3d at p. 925; People v. Reeves (1966) 64 Cal.2d 766, 772.) "'The form of the plea is not of vital importance, provided the admission of guilt is clear, definite, and unconditional.'" (People v. Gibbs (1961) 188 Cal.App.2d 596, 600-601.)
Where a defendant is represented by counsel and voluntarily enters into a negotiated plea agreement, the plea will not be set aside solely because the court made an omission in advisements or erred while questioning the defendant. (People v. Dickerson, supra, 122 Cal.App.4th at pp. 1386-1387; People v. Howard, supra, 1 Cal.4th at p. 1180; People v. Niendorf (1961) 197 Cal.App.2d 594, 598-599 [where record showed defendant wanted to enter the plea his counsel negotiated, the plea would not be vacated simply because he did not use the words "I plead guilty"]; People v. Gibbs, supra, 188 Cal.App.2d at p. 605.)
Here the record shows that Maidana knowingly and voluntarily entered a no contest plea. He signed a "Felony Advisement of Rights, Waiver and Plea Form." The first page enumerated the charges he would plea to and set forth the terms of the plea bargain. Maidana initialed the boxes relating to the plea agreement terms. He stated, "I hereby freely and voluntarily plead no contest to the charge(s) listed on page 1 . . . ." He said, " I stipulate and agree that there is a factual basis for my plea(s) . . . ." The form contained advisements about his constitutional rights. He initialed the advisements and waivers and stated, "I understand each and every one of the rights outlined above and I hereby waive and give up each of them in order to enter my plea to the above charges."
The court held a hearing and Maidana was represented by counsel. The prosecutor stated that there was a plea agreement and Maidana was entering a no contest plea to counts 1, 4 and 8. The court asked Maidana's trial counsel whether the plea as represented by the prosecutor was correct. Maidana's counsel said, "Yes, Your Honor."
The court asked Maidana, "[I]s that the disposition as you understand it, sir?" Maidana responded, "Yes, sir." By stating "Yes," Maidana acknowledged that he was pleading no contest to the charges and that the plea agreement he signed was correct. (People v. Niendorf, supra, 197 Cal.App.2d at pp. 597-598.)
Moreover, before the court filed the written plea agreement, it questioned Maidana to make sure that he understood it, that he conferred with counsel, and that his plea was voluntary. The court said: "I have before me a document entitled waiver of rights. Do you recognize the form?" Maidana: "Yes." The court: "And did you go over the form with your attorney?" Maidana: "Yes." The court: "Did you understand your constitutional rights?" Maidana: "Yes." The court: "Did you place your initials on the side of the form?" Maidana: "Yes." The court: "And sign the form where indicated?" Maidana: "Yes."
The court also questioned Maidana to make sure he knew the consequences of his plea. It advised him that paragraph 12 of the plea agreement contained an immigration consequences warning. The court: "Do you remember having that read to you, sir?" Maidana: "Yes." The court: "Do you understand that, sir?" Maidana: "Yes, sir." The court: "Did you place your initials on the box opposite paragraph number 12?" Maidana: "Yes, I did." The court: "I must tell you sir, that as a result of your plea in this matter, if you are not a citizen, you will be deported; understood?" Maidana: "Yes, sir."
This record reflects that Maidana knew he was entering a no contest plea and he voluntarily did so. He had substantial time to consider the prosecution's offer and he was represented by counsel. The plea agreement was "candidly disclosed to the trial court and incorporated in the record of the case." (People v. West (1970) 3 Cal.3d. 595, 613-614.) Because of the strength of the prosecution's case and the number of felony counts, the trial court determined that the decision to enter into the plea agreement was well considered and wise.
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.