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In Re Joshua Daniel Mills


September 9, 2011


(Super. Ct. No. WHC973)

The opinion of the court was delivered by: Raye , P. J.

In re Mills



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The Attorney General appeals from a superior court order granting a petition for writ of habeas corpus filed by Joshua Daniel Mills. (Pen. Code, § 1506.)*fn1 The superior court granted the petition after determining that Mills's 2002 convictions for criminal threats and exhibiting a deadly weapon in Placer Superior Court case No. 62-026161 were the product of an involuntary guilty plea. We reverse.


On August 2, 2002, Mills entered a negotiated plea of no contest pursuant to People v. West (1970) 3 Cal.3d 595 (West) to criminal threats (§ 422) and exhibiting a deadly weapon (§ 417, subd. (a)(1)) in case No. 62-026161. He also pled no contest to a felony and two misdemeanor counts in an unrelated case, and admitted violating probation in two other cases. Under the terms of the plea, Mills would get no state prison sentence and would be referred "with mental health terms and conditions, if appropriate, and the understanding that the sentencing will be set in the mental health court." The pro tem. judge did not take a factual basis for the plea and did not inform Mills of the possible sentences for his offense.

Mills appeared before the mental health court on September 9, 2002. Mills's defense counsel informed the court that no mental health assessment had been given. The court continued the case until Mills was assessed.

A probation report was prepared for sentencing. According to the report, on November 22, 2001, Mills's mother told a Lincoln Police officer that Mills got angry with his wife for leaving the residence without him; when she returned, Mills pushed her into a door. After being asked to leave, Mills used a kitchen knife to cut the telephone line and puncture a tire on his mother's vehicle. Brandishing the knife, Mills said his wife was the cause of his going to prison, and he was going to kill her and everyone else.

Mills discussed the incident after reviewing the police report. He claimed to have been using methamphetamine for the two months before the incident. Mills and his wife used methamphetamine in front of their five-year-old son, and Mills realized they would lose him if they kept using drugs. Mills got angry with his wife on the day of the incident when he found out she was using methamphetamine again. He admitted arguing with her and slashing the tire, but Mills did not remember brandishing the knife or pushing his wife.

Mills was sentenced in mental health court on September 16, 2002. The mental health court suspended imposition of sentence and placed Mills on probation, but without any mental health terms. The mental health assessment was not mentioned at sentencing.

On November 3, 2004, Mills admitted violating probation. He was sentenced to a three-year term for a felony offense in another case, and a consecutive eight-month term for the criminal threats count.

On January 22, 2008, Mills pled no contest in Placer Superior Court case No. 62-060665 to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), dissuading a witness (§ 136.1, subd. (c)(1)), and solicitation of assault by means of force likely to produce great bodily injury (§ 653f, subd. (a)) and admitted his 2002 conviction for criminal threats as a prior serious felony and strike conviction. He was sentenced to 20 years four months in state prison. Mills did not appeal.

On September 29, 2008, Mills was charged in Placer Superior Court case No. 62-84322 with assault on a custodial officer (§ 241.1) and resisting an officer (§ 69), along with two strike allegations. Mills filed a petition for a writ of habeas corpus on March 9, 2010, asserting his 2008 convictions were the product of an involuntary plea because he suffered from hallucinations at the time. Placer County Superior Court Judge Mark Curry denied the petition on the grounds that Mills did not allege sufficient facts in support of his claim, he could attack the prior convictions in the trial for the current charges, and the petition was untimely.

Mills filed another habeas petition on May 25, 2010. He sought to withdraw his 2002 no contest plea, asserting the court that took the plea failed to advise him of the direct consequences of the plea, did not inform him the plea was binding on the sentencing court, failed to inform him that a no contest plea is equivalent to a guilty plea, and took no factual basis for the plea, and there was no waiver of time for sentencing.

The People filed an opposition on June 15, 2010, asserting the petition was untimely, Mills was collaterally estopped from attacking the 2002 conviction since he admitted the offense at his 2008 plea, and if there was no factual basis the matter should be remanded for the People to develop one. Superior Court Judge James Garbolino issued an order to show cause as to why the sentencing court did not receive a factual basis for the plea and Mills was not advised of the statutory range of punishment.

Mills's defense counsel in the 2002 plea, Julie Mumma, was the sole witness at the evidentiary hearing on the order to show cause. Mumma did not recognize Mills or recall his 2002 plea. She advised her clients making West pleas that they were maintaining their innocence and were accepting the plea to avoid more serious consequences by going to trial. Mumma's understanding of a West plea was that her "clients left maintaining their innocence," which she would have told her clients in 2002. When discussing West and no contest pleas with her clients, Mumma did not tell them the plea was the same as a guilty plea, but she did tell them they would still be sentenced.

Mumma's general practice was to tell clients that they could go to prison if they violated probation. She normally explained the sentencing triads to her clients, even where they were pleading to a felony in exchange for probation. She had no recollection of explaining the sentencing triad to Mills.

The superior court issued an order granting a writ of habeas corpus on October 4, 2010. The court was concerned that Mills misunderstood the nature of a West plea; Mills thought it allowed him to maintain his innocence but West primarily addresses pleas to lesser uncharged offenses, which was not the case in Mills's plea. This misunderstanding was significant to the superior court because the trial court did not develop a factual basis for the plea. The superior court recognized the probation report contained facts that would have been an adequate basis for the plea. However, the facts in the probation report supporting guilt were undercut by Mills's own statement in the probation report, which neither admitted nor substantiated his culpability. The trial court's failure to inform Mills of the possible sentences for his crimes compounded the problems with his plea. The superior court concluded there were "three separate and weighty factors which combined to bring about a plea which this court finds to be lacking in the constitutional safeguards which provide courts with the confidence that they got it right."

DISCUSSION I The 2002 Plea was Voluntary

The Attorney General contends the three grounds supporting the superior court's decision -- the lack of a factual basis, Mills's misunderstanding of a West plea, and the failure to explain the potential penal consequences of his plea -- are not a valid basis for granting the habeas corpus petition. We agree.

"The right to file a petition for a writ of habeas corpus is guaranteed by the state Constitution (Cal. Const., art. I, § 11), and regulated by statute (§ 1473 et seq.)." (In re Harris (1993) 5 Cal.4th 813, 824-825.) However, post-conviction habeas corpus relief is an "extraordinary remedy[.]" (In re Connor (1940) 16 Cal.2d 701, 709.) A judgment of conviction is presumed valid. (In re Bell (1942) 19 Cal.2d 488, 500.) "'For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society's interest in the finality of criminal proceedings so demands, and due process is not thereby offended.' [Citation.]" (People v. Duvall (1995) 9 Cal.4th 464, 474.)

When reviewing a superior court's grant of a habeas corpus petition, we evaluate the trial court's factual determinations under the substantial evidence test and decide questions of law de novo. (In re Collins (2001) 86 Cal.App.4th 1176, 1181.)

A. Factual Basis

Section 1192.5 requires the trial court to determine by independent inquiry whether a factual basis exists for a plea of guilty or nolo contendere to a felony offense. (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576 (Wilkerson).) The court "'may satisfy itself by statements and admissions made by the defendant, his counsel, and the prosecutor . . . .'" (People v. Watts (1977) 67 Cal.App.3d 173, 180, quoting Williams v. State (Fla. 1975) 316 So.2d 267, 273.) The factual basis requirement is a statutory right; the absence of a factual basis for a plea does not violate the federal Constitution. (People v. Holmes (2004) 32 Cal.4th 432, 438 (Holmes).)

"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. [Citation.]" (Wilkerson, supra, 6 Cal.App.4th at p. 1576; see Holmes, supra, 32 Cal.4th at p. 443.) The threshold is extremely low. "[T]here need not be evidence of each element of the offense charged." (Wilkerson, supra, at p. 1578.) We need only determine whether the court could find a "prima facie factual basis for the charges. [Citation.]" (Id. at p. 1580.)

To prove a section 422 violation, "the prosecution must establish (1) that the defendant had the specific intent that his statement would be taken as a threat (whether or not he actually intended to carry the threat out), and (2) that the victim was in a state of 'sustained fear.' The prosecution must additionally show that the nature of the threat, both on 'its face and under the circumstances in which it is made,' was such as to convey to the victim an immediate prospect of execution of the threat and to render the victim's fear reasonable." (People v. Garrett (1994) 30 Cal.App.4th 962, 966-967.) To prove brandishing, the People must show that the defendant "draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner" other than for self-defense. (§ 417, subd. (a)(1).)

According to the probation report, Mills brandished a knife and threatened to kill his wife. As the superior court admitted, this is a prima facie case of criminal threat and brandishing a deadly weapon, and thus a factual basis for Mills's plea. Since there was a factual basis for the plea, the trial court's failure to develop one was harmless error.

B. The West Plea

The superior court correctly found Mills entered his plea on the mistaken belief that a West plea allowed him to maintain his innocence; West did not involve a claim of innocence but instead addressed the validity of a plea to an uncharged lesser offense entered pursuant to a plea bargain. (West, supra, 3 Cal.3d at p. 600.) Mills's plea is properly characterized as an "Alford" plea, based on N.C. v. Alford (1970) 400 U.S. 25, 37-38 [27 L.Ed.2d 162, 171-172] (Alford), which upheld a guilty plea entered by a defendant who professed belief in his innocence. Regardless of how he should have framed the plea, Mills's belief in his innocence does not vitiate his plea's validity.

Although the Supreme Court in Alford cautioned that a plea entered over a claim of innocence should not be accepted without a factual basis (Alford, supra, 400 U.S. at p. 38, fn. 10 [27 L.Ed.2d at p. 172, fn. 10]), this does not elevate the factual basis inquiry to a constitutional right (People v. Hoffard (1995) 10 Cal.4th 1170, 1183, fn. 11). While the trial court did not take a factual basis for the plea, as we have already discussed, a factual basis for Mills's plea exists in the record.

The superior court thus erred in allowing Mills's refusal to admit or confirm his guilt to diminish the facts in the probation report supporting his guilt. Alford establishes that a court can take a factual basis for a guilty plea even when the defendant maintains his innocence. A corollary to this rule is that a court may consider facts supporting the plea without giving consideration to a defendant's claim of innocence. Here, Mills did not deny his guilt in the probation report, instead claiming he could not remember brandishing the knife or pushing his wife. It is inconsistent with Alford to allow mere refusal to admit guilt to diminish other facts that independently provide a factual basis for the plea.

C. Sentencing Consequences

A trial court's failure to advise of the consequences of a plea constitutes error under Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [trial court obligated to advise defendant who pleads guilty of the direct consequences of his plea]. (In re Moser (1993) 6 Cal.4th 342, 351-352 (Moser).) "[A] defendant (even on direct appeal) is entitled to relief based upon a trial court's misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement. [Citation.] A fortiori, the defendant must demonstrate prejudice when, as in the present case, the issue is raised on habeas corpus. [Citations.]" (Moser, supra, 6 Cal.4th at p. 352.)

Mills was not advised of the range of sentences he could receive as a result of his plea.*fn2 However, there is no evidence in the record showing he would not have entered a plea upon a proper advisement, and the superior court made no finding that Mills was prejudiced.

Criminal threats are "punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." (§ 422.) At the time he entered his plea, Mills was charged with five felonies (including two strikes) and four misdemeanors, as well as probation violations in two other cases and additional charges in another case. His total exposure was eight years in prison and two strike convictions. As a result of his plea, he received probation and a single strike conviction.

Mills was told the direct penal consequences of his plea: no state prison time and mental health probation conditions if he was found suitable following a mental health assessment. It is inconceivable that Mills would have rejected the plea had he been informed of the sentencing range for criminal threats, a consequence contingent upon probation being terminated at some later date. The failure to advise Mills of this consequence did not undermine the voluntariness of his plea.

D. The Plea was Voluntary

"[T]he standard for determining the validity of a guilty plea 'was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' [Citations.] . . . '. . . [T]he record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.' [Citation]." (People v. Howard (1992) 1 Cal.4th 1132, 1177.) We examine the record to see if a plea is voluntary under the totality of the circumstances. (Id. at p. 1178.)

The errors identified by the superior court did not render Mills's 2002 plea involuntary. Those errors involved procedural errors rather than Mills's constitutional rights and were harmless beyond a reasonable doubt. Although numerous harmless errors can accumulate into prejudicial error (People v. Hill (1998) 17 Cal.4th 800, 844-845), this case does not present that problem.

Mills was represented by counsel when he made the plea. He was informed of, and expressly waived, his constitutional rights to jury trial, confrontation, and to present a defense, as well as his privilege against self-incrimination. The terms of the plea were explained in open court. There is no evidence of duress and there was at least a prima facie case that Mills committed the offenses in his plea.

The Constitution requires no more. Mills's plea was voluntary and the superior court's conclusion to the contrary was error.

II The Plea Agreement was not Violated

Mills asserts another ground for granting his petition. He contends that even if his plea was voluntary, his petition should have been granted because he was never given mental health conditions, a violation of the plea agreement.

Mills presented this claim in his habeas corpus petition, but the superior court did not address the issue when it granted the petition. Assuming Mills can address the implicit rejection of this claim on the Attorney General's appeal (see In re Crow (1971) 4 Cal.3d 613, 621, fn. 8 [no appeal from the denial of a habeas petition]; County of Los Angeles v. Glendora Redevelopment Project (2010) 185 Cal.App.4th 817, 828 [respondent who has not appealed generally cannot argue error below but can assert a legal theory in support of the judgment]), he does not establish an alternate ground for granting the writ.

At the plea colloquy, the prosecutor indicated Mills would be sentenced in mental health court and would get mental health terms for probation if they were found appropriate following a mental health assessment. Mills appeared before the mental health court on September 9, 2002. After learning Mills was not yet assessed, the mental health court stated: "Let me make it very clear. I'm going to put this matter over for the purpose of assessing suitability for this calendar. And if he's deemed suitable, specific conditions of mental health treatment should be imposed." Mills was sentenced in the mental health court on September 16, 2002. There was no mention of a mental health assessment, and no mental health conditions were imposed. From this, Mills concludes he was neither given a mental health assessment nor provided with the promised mental health terms, violating the plea agreement.

Not so. Mills's argument overlooks the presumed validity of judgments subject to collateral attack. The mental health court continued Mills's case because there was no mental health assessment. Mills was sentenced nine days later, in front of the same judge, and with the same defense counsel. The most reasonable explanation for why the mental health assessment and mental health terms were not mentioned at sentencing was that defendant was assessed between September 9 and September 16 and was found not suitable for mental health terms. This point was argued to the superior court at the hearing on the habeas corpus petition, and we defer to the superior court's implicit finding that Mills was assessed and found not amenable to mental health terms of probation.

We presume the mental health court abided by the terms of the plea agreement. (See In re Julian R. (2009) 47 Cal.4th 487, 499 [trial court presumed to have been aware of and followed applicable law].) Since there is evidence raising an inference that Mills was assessed and found not suitable, and there is no evidence to the contrary, Mills fails to establish his burden of showing his plea agreement was violated.


The order granting Mills's petition for a writ of habeas corpus is reversed, and the matter is remanded to the superior court with directions to deny the petition.

We concur: ROBIE , J. MAURO , J.

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