People v. Wilkerson

• Decision Date: 01 June 1992
• Docket Number: No. F016137,F016137
• Citation: 6 Cal.App.4th 1571,8 Cal.Rptr.2d 392
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Dee WILKERSON, Defendant and Appellant.

Page 392

8 Cal.Rptr.2d 392

6 Cal.App.4th 1571

The PEOPLE, Plaintiff and Respondent, v. Frank Dee WILKERSON, Defendant and Appellant.

No. F016137.

Court of Appeal, Fifth District, California.

June 1, 1992.

Certified for Partial Publication ^*

[6 Cal.App.4th 1573] Jay E. Goodman, San Francisco, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Margaret Garnand Venturi and Harry Joseph Columbo, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THAXTER, Associate Justice.

On February 28, 1991, appellant Frank Dee Wilkerson was charged by criminal complaint filed in Kern County Municipal Court with multiple counts of child molestation. The victims were his 12-year-old granddaughter and her 12-year-old friend. Wilkerson was charged with five counts of lewd conduct by force with a child under 14, a violation of PENAL CODE SECTION 288¹, subdivision (b) (counts 1, 3, 5, 7, 10), five counts of oral copulation with a child under 14 and more than 10 years younger than himself, a violation of section 288a, subdivision (c) (counts 2, 4, 6, 8, 11), two counts of use of a minor in the production of sexual materials, a violation of section 311.4, subdivision (c) (counts 9 & 13), and one count of digital penetration by force in violation of section 289, subdivision (a) (count 12). The complaint also alleged as to counts 1, 3, 5, 7, and 10 that the offense was a serious felony pursuant to section 1192.7, subdivision (c)(6). Wilkerson entered pleas of not guilty on all counts.

On March 13, 1991, the preliminary hearing commenced in municipal court. After hearing the testimony of his granddaughter, Wilkerson entered no contest pleas to all counts except for count 10 which was conditionally dismissed with a Harvey ² waiver in exchange for an agreement that the maximum sentence to be imposed would not exceed 40 years. The negotiated On April 15, Wilkerson told the superior court he wished to withdraw his plea. The matter was returned to the municipal court for further proceedings. The motion to withdraw the plea was denied by the municipal court on May 13.

plea was accepted by the superior court on April 10, 1991.

Wilkerson was returned to superior court for sentencing. On June 12, 1991, Wilkerson was sentenced to a total term of 40 years in state prison. He received a full, separate and consecutive term of six years each on counts 1, 3, 5, 7, 12; one-third the middle term of two years consecutive on counts 2, 4, 6, 8, and 11; and a concurrent midterm of two years on counts 9 and 13.

FACTS ³

Wilkerson's pickup truck was repossessed and sold at auction. The truck's purchaser discovered sexually explicit photographs, several of which featured juvenile females, in the truck. The photographs were forwarded to the Kern County Sheriff's Department for further investigation.

Sheriff deputies interviewed Wilkerson's 12-year-old granddaughter M. M. told the officers that her grandfather had molested her and her 12-year-old friend N. over the past two years. M. stated the incidents occurred on the fairly frequent occasions when the two girls were left in Wilkerson's care. M. stated that on more than five but less than ten times, Wilkerson had her orally copulate and/or masturbate him. M. recalled specific occasions during which both N. and M. were present and described the specific acts committed on each occasion. M. stated in addition to the times when she and N. were together, on several occasions Wilkerson would take her alone in his truck along dirt country roads and have her orally copulate him. M. identified herself in several of the photos found in the pickup truck. When asked why she engaged in this activity, M. stated Wilkerson would spoil her and give her what she wanted if she did as he asked. She also stated she was afraid of Wilkerson who drank a lot and would become violent when drinking. M. adamantly denied having sexual intercourse with her grandfather and said nothing else happened. She later admitted he tried to grab and "tickle" her vagina. On these occasions, M. would pull away from him and tell him to stop. M. also said that while the girls were visiting Wilkerson, he would put on "nasty" videos and "play with himself."

The officers also interviewed N. N. was the daughter of Wilkerson's girlfriend, and during some of the period in which the molestations occurred, N. lived with her mother and Wilkerson. N. told the officers she had been molested by Wilkerson more than five but less than ten times when she and M. visited Wilkerson. N. also described specific acts which occurred on specific occasions. N. said if she and M. did what Wilkerson asked, he would take M. and her places. On two occasions Wilkerson offered the girls money to masturbate and/or orally copulate him. After some reluctance, N. admitted Wilkerson took pictures of her and M. in sexually explicit poses and identified herself and M. in several of the pictures found in the pickup truck. N. also admitted taking one of the pictures, one of Wilkerson with his penis exposed. N. said the first incident of molest started when she was 10 years old. She said the last occurred when she was 12 years old (in 1990).

N. further stated these things would happen when Wilkerson was drinking and that when he was drinking he was violent. She said she was frightened of Wilkerson. N. told officers she and M. watched nasty videos when visiting Wilkerson and that on these occasions Wilkerson would have the girls "play with him." N. also adamantly denied having intercourse with Wilkerson. When shown the picture of Wilkerson having sex with a child, N. stated it was not her. N. remembered on one occasion Wilkerson came to her while she was sitting After being arrested and Mirandized, ⁴ Wilkerson admitted he had taken sexually explicit pictures of N. He also admitted having the girls masturbate and orally copulate him. He denied any penetration. He said N. is "twenty years older than her time" and that N. was "curious." In describing several occasions, Wilkerson claimed the girls were the aggressors or had asked him to do the sexual acts. He said no one forced anyone to do anything.

                down and placed his penis on her leg, telling N. to "play with this."   N. said no but Wilkerson got her head and pushed it toward his penis
                

DISCUSSION

I. MOTION TO WITHDRAW PLEA ^**

A. SUFFICIENCY OF FACTUAL BASIS

Section 1192.5 requires a trial court to determine by independent inquiry, before accepting a plea of guilty or nolo contendere to a felony offense, whether there exists a factual basis for the plea. The purpose behind the inquiry 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. Tigner (1982) 133 Cal.App.3d 430, 432-433, 184 Cal.Rptr. 61; People v. Watts (1977) 67 Cal.App.3d 173, 178, 136 Cal.Rptr. 496; see also North Carolina v. Alford (1970) 400 U.S. 25, 38, fn. 10, 91 S.Ct. 160, 167, fn. 10, 27 L.Ed.2d 162; 3 ABA Standards for Criminal Justice, std. 14-1.6 (2d ed. 1980) p. 14.32.)

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. (People v. Watts, supra, 67 Cal.App.3d at pp. 179-180, 136 Cal.Rptr. 496.) 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. Tigner, supra, 133 Cal.App.3d at p. 434, 184 Cal.Rptr. 61.) If the trial court fails to make an on-the-record inquiry as to the factual basis for the plea, the appellate court is free to review the record and determine whether the error is harmless, i.e., whether the record contains sufficient information to ensure the defendant committed the acts to which the plea was entered. (Id. at p. 435, 184 Cal.Rptr. 61.)

In this case appellant entered his plea of nolo contendere at the preliminary hearing, after M. gave testimony. The plea was conditional on his receiving a sentence of no more than 40 years and on the dismissal of count 10 (one of the § 288, subd. (b) charges). Apparently M.'s testimony at the preliminary hearing disturbed appellant and he did not want the girls to have to testify further. The proceedings recessed for lunch and appellant entered his plea when court resumed. After giving appellant his advisements and accepting his waivers, the trial court asked whether counsel would stipulate that a factual basis for the plea existed. The public defender answered, "So stipulated, your Honor, based on the police reports included in the complaint." ⁵ The district attorney joined in the stipulation and the court stated it would accept the stipulation and find a sufficient factual basis for the plea. At appellant's next court appearance in superior court, he stated he wished to withdraw his plea. At that time the public defender was relieved and private counsel appointed. The matter was returned to municipal court where appellant moved to withdraw his plea. In that motion appellant specifically claimed insufficiency of a factual basis as to the lewd conduct by force, violence, or duress charges (counts 1, 3, 5, and 7) and the penetration with foreign object charge (count 12). He raises the same issues on appeal.

A recent decision by a divided panel of the First Appellate District held a generalized stipulation by counsel that a factual basis exists is sufficient under Penal Code section 1192.5. (People v. McGuire (1991) 1 Cal.App.4th 281, 1 Cal.Rptr.2d 846.) The majority opinion does not address the facts of the case. The dissenting justice opined that a generalized stipulation "reveals no more of a factual basis supporting the plea than the plea itself"...