Opinion
D072815
07-25-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANK RODRIGUEZ, Defendant and Appellant.
Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF38122) APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed. Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Frank Rodriguez appeals a judgment following his pleas to three misdemeanor charges in exchange for a dismissal of the charged felony (attempted burglary). The court sentenced Rodriguez to 300 days in county jail for each misdemeanor count (to be served concurrently) with credit for 92 days served.
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We provided Rodriguez the opportunity to file a supplemental brief, and he has done so. Having considered Rodriguez's brief and independently reviewed the entire record for error as required by Anders and Wende, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
At the preliminary hearing, a police officer testified he saw Rodriguez holding a rock and making a swinging motion towards a glass door in a city building. Rodriguez initially ignored multiple orders to walk toward the police officer. He then threw an object toward nearby bushes, and attempted to destroy a hypodermic needle by scraping it on the ground. After the police officer arrested Rodriguez, the police officer spoke to a city employee who said she heard a loud noise and then someone "jiggling on the door . . . like somebody was trying to push the door open or was trying to break in."
The People filed an information charging Rodriguez with (1) felony attempted burglary (Pen. Code, §§ 664, 459); (2) misdemeanor resisting an officer (§ 148, subd. (a)(1)); (3) misdemeanor possession of paraphernalia used for a controlled substance (Health & Saf. Code, § 11364, subd. (a)); and (4) misdemeanor destroying and concealing paraphernalia to preclude its use as evidence (§ 135).
Further unspecified statutory references are to the Penal Code. --------
Six weeks later, Rodriguez pleaded no contest to the resisting arrest and paraphernalia possession counts, and pleaded guilty to the paraphernalia destruction count. Before accepting these pleas, the court admonished Rodriguez on his constitutional jury trial rights and made express findings that the pleas were knowing, intelligent, and voluntary. Rodriguez also signed a guilty plea form, in which he agreed he had been advised as to each of his rights. As discussed below, defense counsel and the court also signed this form.
In exchange for the guilty pleas, the prosecution dismissed the felony charge. The court then immediately sentenced Rodriguez. Consistent with the parties' agreement, the court imposed a concurrent 300-day sentence on each of the three misdemeanor counts, with credit for 92 days.
DISCUSSION
Rodriguez's appellate counsel filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error under Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. Rodriguez's counsel identified one issue to assist the court in searching the record for error: "Did the trial court establish a sufficient factual basis for [Rodriguez's] guilty plea?"
Under section 1192.5, when a trial court accepts a plea of guilty or no contest, it 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." This statutory mandate "helps ensure that the 'constitutional standards of voluntariness and intelligence are met.' " (People v. Holmes (2004) 32 Cal.4th 432, 438 (Holmes).)
To comply with this statute, "the trial court must garner information regarding the factual basis either from the defendant or defense counsel." (Holmes, supra, 32 Cal.4th at p. 442.) "[C]ounsel may 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." (Ibid.)
"[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court's acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. [Citation.] A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the . . . plea." (Holmes, supra, 32 Cal.4th at p. 443; see also In re M.V. (2014) 225 Cal.App.4th 1495, 1526-1527.)
Under these principles, there was no prejudicial error. Although the transcript of the change-of-plea hearing shows the court did not orally inquire about the factual basis for the plea, Rodriguez initialed the written plea form agreeing that his counsel had explained the nature of the charges, the elements of the offenses, and the pleas and defenses available to him. His counsel also signed the form stating that he "explained to the defendant each of his rights relating to his plea . . . and I am satisfied that he understands them." Additionally, the court's written order accepting Rodriguez's guilty plea specifically states: "There is a factual/legal basis for the plea(s)." Further, our review of the preliminary hearing transcript shows the existence of a factual basis for the guilty and no-contest pleas.
On this record, the absence of a specific inquiry regarding the factual basis of the pleas at the hearing did not create an arguable issue for reversal. In so concluding, we remind the trial court of its obligations regarding the need to inquire about the factual basis of a plea to avoid any later questions on the issue.
In his supplemental brief, Rodriguez appears to raise an issue regarding Proposition 36 probation and drug court diversion. (See § 1210.1, subd. (a).) However, he was not eligible for that program. Even assuming the paraphernalia counts were applicable offenses under this law (§ 1210, subd. (a)), Rodriguez's plea to the misdemeanor resisting officer crime (§ 148, subd. (a)(1)) precluded his participation in this program (see 1210.1, subd. (b)(2)). Section 1210.1, subdivision (b)(2) makes ineligible for Proposition 36 drug diversion "[a]ny defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony."
The remaining portions of Rodriguez's supplemental brief reference matters that occurred after the judgment in this matter, and/or appear to concern prior unrelated cases in the Riverside County Superior Court. Because any contentions related to these matters are unsupported by the record and are unrelated to the convictions before us, they do not create an arguable issue for reversal on appeal.
We have independently reviewed the record and have considered the possible issue identified by Rodriguez's counsel. (See Wende, supra, 25 Cal.3d 436; Anders, supra, 386 U.S. 738.) We have also considered Rodriguez's supplemental brief. We have found no reasonably arguable issues supporting a reversal. Competent counsel has represented Rodriguez in this appeal.
DISPOSITION
Judgment affirmed.
HALLER, J. WE CONCUR: NARES, Acting P. J. DATO, J.