People v. Mickens

• Decision Date: 05 October 1995
• Docket Number: No. H013406,H013406
• Citation: 38 Cal.App.4th 1557,45 Cal.Rptr.2d 633
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 7948, 95 Daily Journal D.A.R. 13,517 The PEOPLE, Plaintiff and Respondent, v. Mickey MICKENS, Defendant and Appellant.

Page 633

45 Cal.Rptr.2d 633

38 Cal.App.4th 1557, 95 Cal. Daily Op. Serv. 7948,

95 Daily Journal D.A.R. 13,517

The PEOPLE, Plaintiff and Respondent, v. Mickey MICKENS, Defendant and Appellant.

No. H013406.

Court of Appeal, Sixth District, California.

Oct. 5, 1995.

Jeffrey M. Evans (Under appointment by the Court of Appeal), Santa Clara, for Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Sr. Assistant Attorney General, Donna B. Chew and Ann K. Jensen, Deputy Attorneys General, for Respondent.

ELIA, Associate Justice.

When a defendant enters a conditional plea of guilty, what must a trial court do to comply with Penal Code section 1192.5? Is counsels' stipulation to a factual basis for the plea sufficient? And if not, is the error harmless? These are the issues before us in this case.

Appellant Mickey Mickens appeals his conviction, contending that he should have been allowed to withdraw his guilty plea. He argues it was taken in violation of Penal Code section 1192.5; ¹ that counsels' stipulation to a factual basis was inadequate to comply with the statute, and that there was no adequate factual basis in the record. Respondent argues that counsels' stipulation was sufficient, and that a factual basis for the plea existed in the record.

We conclude that the trial court acted within its discretion in denying appellant's motion to withdraw. While it would have been better for the court to have placed on the record the factual basis for the guilty plea, rather than accepting counsels' stipulation, it appears that had counsel not stipulated, a factual basis for the plea could have been readily established. We therefore conclude any error was harmless. We will therefore affirm the judgment of conviction.

Factual And Procedural Background

The facts of this offense are taken from the probation report. These, in turn, come from a Mountain View Police Department report which is not part of the appellate record. The probation report states that "on November 3, 1993, at approximately 6:30 p.m., a paid professional confidential, reliable informant purchased approximately .3 grams of cocaine base from the defendant at a Mountain View hotel. [p] The informant entered the hotel looking for someone who would sell cocaine base. The informant located the defendant who was a resident of the hotel. In the police report, it was noted the radio wire was not clear; however, they believed the defendant asked the informant if he was looking for anything (in reference to drugs). The informant apparently said he was looking for a '20' (referring to $20 worth of cocaine base). The defendant said he would do so, and the informant gave the defendant $20 in prerecorded funds. The defendant left the hallway area while the informant waited near a pay phone. A few minutes later, the defendant returned and they both proceeded to the defendant's room in the hotel. The defendant gave the informant the cocaine base and asked for some. Officers note the wire was clear in the informant's statements to the defendant which apparently indicated the cocaine was not for him. [p] It was also noted a separate confidential, reliable informant had previously told officers an individual described as the defendant was involved in the drug activity at the hotel." Subsequent analysis showed one rock of cocaine with a net weight of .19 grams.

Appellant denied selling cocaine to the informant or helping him acquire it. He claimed the informant was upset with him because he would not let him in his room at the hotel, and the informant made the allegation against appellant a few days later. He admitted sporadic cocaine use, but usually only what friends gave him. The informant had from time to time provided him with cocaine: They occupied adjacent rooms in the hotel, and the informant did not want to smoke it in his own room, which was next to the office, so he would offer to share a small quantity with appellant.

On February 1, 1994, a felony complaint was filed charging appellant with offering to sell, and selling cocaine base (Health & Saf.Code, § 11352, subd. (a)). On July 21, he entered a guilty plea to this charge on the condition that no state prison sentence be imposed. Counsel stipulated to a factual basis for the plea.

Appellant then moved to withdraw his plea, on the grounds that he was under "considerable mental stress and anxiety" at the time of the plea, and that the record failed to demonstrate a sufficient factual basis for the plea. The matter was remanded to municipal court and the motion was heard on October 3.

At this hearing, appellant testified he spoke to his attorney before he entered his plea and told him that he and the informant had smoked some cocaine that day, but he had denied selling cocaine to the informant. Defense counsel had advised his client that it was his word against the informant's, that the jury was likely to believe the informant, and that his chances of winning a jury trial were tantamount to nil. He therefore advised his client to accept the plea bargain. Appellant was aware that he could be convicted on the informant's testimony, and would face a longer sentence if he were convicted. In spite of this risk, he wished to withdraw his plea.

Appellant also testified that he had spoken to his attorney twice before the plea hearing. The attorney had communicated the plea bargain to his client at their second meeting. On the day of the plea hearing, appellant spoke to counsel only for a couple of minutes. Immediately following the hearing, he decided he shouldn't have pled guilty, and decided to move to withdraw his plea. Counsel did not use threats or force to induce appellant's plea. His exposure at the time he entered the plea was five years' imprisonment; the plea bargain he accepted was for no state prison, up to one year in county jail. He understood that at the time he entered the plea.

The trial court denied the motion to withdraw on October 11. Appellant received a suspended sentence of 10 months in county jail on November 15, 1994. This appeal ensued.

Discussion

Appellant argues the trial court erroneously denied his motion to withdraw his plea: He contends his plea was taken in violation of section 1192.5, and that counsels' stipulation was inadequate to satisfy the statute's requirements. He also contends there was no adequate factual basis for his plea.

I. Motion to Withdraw

Section 1018 provides that, "... On application of the defendant at any time before judgment ... the court may, ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." Good cause must be shown for such a withdrawal, based on clear and convincing evidence. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456, 2 Cal.Rptr.2d 670.) The decision whether to allow a defendant to withdraw a guilty or no contest plea is discretionary, and an appellate court will not disturb it absent a showing the trial court has abused its discretion. (Ibid.; In re Brown (1973) 9 Cal.3d 679, 685, 108 Cal.Rptr. 801, 511 P.2d 1153.)

Appellant alleged two separate grounds for this withdrawal in the trial court; that he was under mental stress, and that the record failed to demonstrate a factual basis for his guilty plea. The trial court's denial of the motion implies a finding that appellant failed to make an adequate showing on either ground. On appeal, he maintains only his factual basis argument. We proceed to examine this issue. ²

II. Penal Code section 1192.5

In People v. Hoffard (1995) 10 Cal.4th 1170, 43 Cal.Rptr.2d 827, 899 P.2d 896, the California Supreme Court addressed the issue of whether section 1192.5 requires a court to satisfy itself that there is a factual basis for an admission. There, counsel stipulated to a factual basis for defendant's admissions to allegations of substantial sexual conduct with the victim; here, counsel stipulated to a factual basis for appellant's guilty plea.

In Hoffard, this court had concluded that counsel's stipulation was insufficient to comply with the requirements of section 1192.5. The Supreme Court disagreed, concluding that the statute only applies to "negotiated pleas specifying the punishment to be imposed." (Id. at p. 1174, 43 Cal.Rptr.2d 827, 899 P.2d 896, emphasis omitted.) Since Hoffard's plea was unconditional, the statute was inapplicable. Appellant here, however, entered his guilty plea on the condition he receive no state prison term.

"Conducting a factual basis inquiry before accepting or entering judgment on a guilty plea may further important interests," noted the court. (Id. at p. 1183, 43 Cal.Rptr.2d 827, 899 P.2d 896.) The first of these is the constitutional standard that the plea " 'represents a voluntary and intelligent choice.' " (Ibid., quoting North Carolina v. Alford (1970) 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162.) "Although not itself constitutionally compelled, a factual-basis inquiry may help to ensure the constitutional standards of voluntariness and intelligence are met...." (Id., 10 Cal.4th at p. 1183, fn. 11, 43 Cal.Rptr.2d 827, 899 P.2d 896.)

The statutory requirement assumes "particular importance" to this constitutional interest, noted the court when, as in this case "the defendant's plea of guilty is coupled with a contradictory claim of innocence." (Ibid.) The practice also "further[s] important interests ... includ[ing] protecting against the entry of a plea by an innocent defendant and making a record against possible appellate or collateral attacks on the plea." (Id. at p. 1183, 43 Cal.Rptr.2d 827, 899 P.2d 896, citing People v. Watts (1977) 67 Cal.App.3d 173, 178, 136 Cal.Rptr. 496 and Barkai, Accuracy Inquiries for All Felony and Misdemeanor Pleas: Voluntary Pleas But Innocent Defendants? (1977) 126 U.Pa.L.Rev. 88, 95.)

We conclude section 1192.5's mandate applies here; appellant's guilty plea was conditional, and he claimed...