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People v. Yang

California Court of Appeals, Fifth District
Jul 22, 2008
No. F053117 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. F07900151, Jonathan B. Conklin, Judge.

Cheryl Rae Anderson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

Kane, J.

Defendant Nancy Yang entered a no contest plea to corporal injury to a child and inflicting great bodily injury on a child under the age of five. On appeal, she contends (1) there was an inadequate factual basis to support the great bodily injury enhancement and (2) the enhancement violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely) because it was based on facts not admitted by defendant. We will affirm.

FACTUAL AND PROCEDURAL SUMMARY

The facts are taken from the probation officer’s report.

Defendant lived with her boyfriend, their three daughters, and her boyfriend’s two sons. On November 11, 2006, defendant was home caring for the children while her boyfriend was at work. Defendant tied the hands and feet of her boyfriend’s four-year-old son, put a towel in his mouth, and forced him to stand in the bathtub while she ran scalding hot water on his feet. The child suffered third degree burns and permanent scarring on his feet.

On January 8, 2007, the Fresno County District Attorney charged defendant with corporal injury to a child (Pen. Code, § 273d, subd. (a); count 1). The complaint also alleged appellant personally inflicted great bodily injury on a child under five years old (§ 12022.7, subd. (d)). Defendant pled not guilty, but later changed her plea to no contest. In exchange for her plea, she received a sentence of seven years in prison, comprised of the lower term of two years on count 1 and the middle term of five years on the great bodily injury enhancement.

All statutory references are to the Penal Code unless otherwise noted.

DISCUSSION

Defendant contends her no contest plea must be set aside because the record does not establish a factual basis to support the five-year great bodily injury enhancement under section 12022.7, subdivision (d) because the trial court asked her to admit that she inflicted great bodily injury on a five-year-old child, rather than on a child under five years old, as required by section 12022.7, subdivision (d). Defendant further contends the enhancement violates Blakely, supra, 542 U.S. 296 because it punishes her in excess of facts she admitted in the course of her plea. She argues that without her admission that the victim was under five years old, the factual basis supports only a three-year great bodily injury enhancement under section 12022.7, subdivision (a), which does not require that the victim be a certain age.

Section 12022.7, subdivision (d) states: “Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years.”

Section 12022.7, subdivision (a) provides: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”

Section 1192.5 requires the trial court in approving a defendant’s conditional plea 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.” To comply with the factual basis requirement, the trial court “must garner information regarding the factual basis for the plea from either defendant or defense counsel.” (People v. Holmes (2004) 32 Cal.4th 432, 436 (Holmes).) “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.]” (Ibid.)

Section 1192.5’s factual basis requirement serves several important purposes. “While there is no federal constitutional requirement for this factual basis inquiry, the statutory mandate of section 1192.5 helps ensure that the ‘constitutional standards of voluntariness and intelligence are met.’ [Citation.]” (Holmes, supra, 32 Cal.4th at p. 438, fn. omitted; People v. Marlin (2004) 124 Cal.App.4th 559, 571 [“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”].) The factual basis inquiry also “‘provide[s] a more adequate record of the conviction process[,] ... minimizes the chances of a defendant successfully challenging his conviction later [citation], and also aids correctional agencies in the performance of their functions. Finally, increased knowledge about the circumstances of the defendant’s offense provides the court with a better assessment of defendant’s competency, his willingness to plead guilty, and his understanding of the charges against him.’ [Citation.]” (Holmes, at p. 438, fn. 2; see also People v. Watts (1977) 67 Cal.App.3d 173, 178 [purpose of inquiring into factual basis for pleas 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”].)

In this case, the trial court established a factual basis for the plea as follows:

“THE COURT: Counsel stipulate to a factual basis including the facts as set out in the plea agreement, ‘the defendant put the victim’s feet in extremely hot water causing traumatic injury’?

“[DEFENSE COUNSEL]: Yes, your Honor.

“[PROSECUTOR]: By the People.

“THE COURT: Very good. Thank you very much. [¶] … [¶] [Defendant], to the charge that on or about November 11th, 2006, in this state and county, you inflicted corporal injury on a child in violation of Penal Code 273d(a) that did, in fact, result in a traumatic condition; how do you plead?

“[DEFENDANT:] No contest.

“[THE COURT:] You understand the Court will treat the no contest plea the same as a guilty plea at sentencing?

“[DEFENDANT:] Yes.

“[THE COURT:] Do you also agree that on that same day, you, in the commission of that offense, personally inflicted GBI [great bodily injury] upon a five year old child?

“[DEFENDANT:] Yes.

“THE COURT: Very good. Thank you.” (Italics added.)

As defendant points out, she technically admitted that she inflicted great bodily injury on a five-year-old child rather than a child under five years old, as required by section 12022.7, subdivision (d). But it is obvious that the trial court simply misspoke, inadvertently omitting the word “under.” It is also obvious that neither counsel noticed the mistake because neither said anything to correct the technical error. Furthermore, the court’s factual question to defendant and defendant’s admission of the fact made absolutely no sense unless both the court and defendant were referring to the section 12022.7, subdivision (d) enhancement. There was no other reason for reference to a child who was five years old, a child under five years old, or any child at all in connection with inflicting great bodily injury. The only reference to a child in section 12022.7 is to a child under five years old in subdivision (d), the provision under which defendant was charged. It is obvious that everyone, including the defendant, knew the court was asking her if she admitted the facts to support the great bodily injury enhancement under section 12022.7, subdivision (d). To conclude that the court’s technical inadvertence resulted in the court’s establishing a different factual basis than the one everyone believed was being established makes a mockery of the proceedings. We refuse to do so. Accordingly, under the circumstances of this case, we conclude that the court’s factual inquiry was intended by the court -- and was understood by everyone present -- to establish that defendant inflicted great bodily injury on a child under five years old. Not only is this conclusion the only reasonable one, it gives defendant exactly what she bargained for and we see no basis -- other than the nonsensical and dogmatic adherence to an obvious technical error now advanced by defendant -- for giving her a greater bounty than that which she bargained for, expected, and received.

For this reason, a forfeiture argument could be made. Many types of sentencing hearing defects are forfeited if not raised below. (See People v. Scott (1994) 9 Cal.4th 331, 352-353, fn. 15 and cases cited therein.)

Defendant’s prejudice analysis is fundamentally flawed. She explains that she suffered prejudice because her sentence was enhanced by five years instead of three years. The five-year enhancement was the one to which she agreed and she suffered no prejudice by receiving it. (See § 1404 [“Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right”]; see also People v. Hester (2000) 22 Cal.4th 290, 295 [“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”].)

Furthermore, under defendant’s premise, the trial court’s inadvertent omission of one word in its factual inquiry was a more serious error than a complete failure to make any factual inquiry whatsoever. Under the latter scenario, we would find the error harmless due to the presence of a sufficient factual basis for the plea in the probation officer’s report, which describes the victim as a four-year-old boy. (Holmes, supra, 32 Cal.4th at p. 443 [when trial court has failed to comply with section 1192.5’s factual basis requirement, the error “will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea”]; People v. Mickens (1995) 38 Cal.App.4th 1557, 1565 [trial court’s error harmless because “an adequate factual basis for the plea could have been established” from the probation report]; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1577 [police reports that were “before the court” and “reflected in the record” contained adequate information to support a factual basis]; People v. Watts, supra, 67 Cal.App.3d at p. 181 [grand jury transcript and presentence probation report contained in the superior court file at the time defendant entered plea supported sufficient factual basis].) Under the facts of this case, we believe the same analysis applies to the trial court’s error here. Applying that analysis, we conclude the error was harmless.

In addition, filed with the probation report was a letter written by defendant in which she described her two stepsons as four and five years old.

Finally, because defendant admitted a factual basis for the five-year great bodily injury enhancement, Blakely is satisfied. (Blakely, supra, 542 U.S. at p. 303 [sentencing judge can use facts “admitted by the defendant” to impose an aggravated sentence].)

DISPOSITION

The judgment is affirmed.

WE CONCUR: Levy, Acting P.J., Dawson, J.


Summaries of

People v. Yang

California Court of Appeals, Fifth District
Jul 22, 2008
No. F053117 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Yang

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NANCY YANG, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Jul 22, 2008

Citations

No. F053117 (Cal. Ct. App. Jul. 22, 2008)