Opinion
F062278 Super. Ct. No. CF05906459
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. MARTIN NAVARRO MORELOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Kane, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Jon N. Kapetan, Judge.
Law Office of Eduardo Paredes and Eduardo A. Paredes for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Martin Navarro Morelos pled no contest to a felony in 2005 and was placed on formal probation for five years. Five years later, defendant filed a motion to vacate his criminal conviction. This appeal is from the trial court's order denying that motion. We will affirm the order.
FACTS AND PROCEDURAL HISTORY
On September 27, 2005, defendant entered a plea of no contest to a complaint alleging one count of violation of Penal Code section 288, subdivision (a), commission of a lewd and lascivious act upon a child, who was five years old at the time of the offense in June 2005. At the time of entry of the plea, the prosecutor and defense counsel stipulated that the police reports contained a factual basis for the plea.
The police reports, contained in the record on appeal, disclose the following: The victim was interviewed by two different investigators. She told them that defendant had touched her vaginal area on the outside of her clothes. Two days after the victim and her mother reported the crime, defendant voluntarily appeared at the police department and asked to speak with someone about the investigation. Defendant acknowledged he had been staying at the home of the victim's parents for a few days in June. He said he played with the victim and may have touched her vaginal area on the outside of her clothes, but that any such touching had been accidental. After further investigation of the matter, and eight days after the initial interview with defendant, an officer asked defendant to come in for a second interview. On this occasion, the officer gave defendant Miranda admonitions. (See Miranda v. Arizona (1966) 384 U.S. 436.) The officer told defendant they had found defendant's "fingerprints near the Victim's vagina." Defendant then told the officer that on one occasion he had put his finger into the victim's underpants and had touched her vagina. When the victim did not respond, he placed his hand in her underpants twice more to "see how far he can go before the Victim[] says anything."
Pursuant to the plea agreement, defendant was referred for a Penal Code section 288.1 evaluation. He told the psychologist he was never alone with the victim and never did anything inappropriate with her. At the sentencing hearing, defendant said, "I take responsibility that I touched the girl, the minor.... I'm very embarrassed and I'm asking you to handle this." His attorney told the court that defendant had told the truth to the police when he admitted the crime, and had denied it to the psychologist out of embarrassment.
The court suspended imposition of judgment and placed defendant on formal probation for five years. The court imposed various conditions of probation and ordered defendant to register pursuant to Penal Code section 290.
On October 30, 2006, defendant was arrested by immigration authorities; in December 2006 he was deported to Mexico and, thereafter, did not maintain contact with the probation office. A bench warrant was issued on January 9, 2007.
On November 12, 2010, through retained counsel, defendant filed a "motion to vacate conviction and dismiss and set aside felony complaint." (Full capitalization omitted.) In accompanying points and authorities, defendant contended there was no factual basis to support the plea because in the police report defendant "stated that at times he may have had normal contact with the child victim but nothing other than the ordinary contact one would expect." The points and authorities stated that defendant's trial counsel "stated that he assumed" the police report contained a sufficient factual basis for the plea, "but there was no meaningful inquiry from the Court or defense counsel as to whether there was sufficient factual basis for the plea."
In fact, as noted, defendant stated in the second interview with police that he placed his finger on the victim's vagina, under her clothing, once and placed his hand in her underpants twice.
In fact, both the prosecutor and defense counsel expressly stipulated that the court would find a sufficient factual basis for the plea, in response to this question from the court: "Counsel, if I were to read the police reports in this case would I conclude that there is a sufficient factual basis for the plea?" In addition, as noted above, at the sentencing hearing defendant took "responsibility that I touched the girl" and counsel represented that defendant told the truth to the police when he admitted the crime.
The court denied the motion on the basis that the court did make a sufficient inquiry concerning the factual basis, and that the record established a factual basis for the plea.
DISCUSSION
Defendant makes two contentions on appeal. First, he contends the trial court's phrasing of its inquiry to counsel concerning the factual basis for the plea "demonstrates that [the] trial court did not have any factual basis upon which to accept the plea because the trial court's inquiry indicates that the trial court had not read the police reports in this case." Second, defendant contends that because he initially denied to the police that he had improperly touched the victim, before admitting the crime eight days later in a second interview, the trial court was required to make "a meaningful inquiry" (boldface & full capitalization omitted) in order to resolve the "contradictory" facts contained in the police report. These contentions are meritless.
To the extent defendant seeks to challenge the validity of the plea itself, the appeal is untimely. (Cal. Rules of Court, rule 8.308(a).)
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The change of plea form, in the space provided for "The facts on which I base my plea," states: "Peo v. West." Under People v. West (1970) 3 Cal.3d 595, 612-613, the court may accept a guilty plea from a defendant who continues to assert his innocence, so long as the record contains a factual basis for the defendant's plea, even if the court is not convinced of the defendant's guilt. (People v. Holmes (2004) 32 Cal.4th 432, 441.) Holmes specified one way in which the court may properly determine that there is a sufficient factual basis for the plea: "We conclude that in 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 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." (32 Cal.4th at p. 436.) Here, the court took exactly that course of action.
The trial court is not, in the change of plea context, charged with resolving factual disputes in the evidence before it. The sole issue is whether the materials before the court establish "a prima facie factual basis for the charges." (People v. Holmes, supra, 32 Cal.4th at p. 441.) In the present case, the information from the victim and her mother contained in the police report, identified defendant and the time, place, and manner of the illicit touching. This established the necessary prima facie factual basis for the charges, and no inquiry concerning admissions by defendant was required, apart from the in-court inquiry concerning the knowing and voluntary character of the plea. (There is no question in the present case that this inquiry was sufficient.) It necessarily follows that the trial court was not required to question defendant or otherwise resolve any inconsistencies in defendant's statements to the police. In any event, it is a common occurrence for a suspect to deny accusations when initially confronted by the police and then subsequently to admit the crime. In the ordinary case, this is not a circumstance that requires explanation, even though further inquiry might be warranted if there were issues of coercion or other circumstances that affected the subsequent admission. (No such circumstances are asserted in this case.) For these reasons, we conclude the court adequately discharged its duty in this case to determine whether there was a factual basis for the plea; the record discloses a factual basis for the plea (id. at p. 443); and the court did not err in denying defendant's motion to set aside the judgment and the no contest plea.
DISPOSITION
The order of February 25, 2011, is affirmed.