IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
February 27, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MARK STEVEN WILLIAMS, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 10F2326, 10F4006)
The opinion of the court was delivered by: Hoch ,j.
P. v. Williams
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Mark Steven Williams pled guilty to numerous charges, including intimidating a witness (Pen. Code,*fn1 § 136.1, subd. (a)(2)), in exchange for an agreement that the remaining charge and enhancements would be dismissed and he would be sentenced to a term of six years eight months in state prison. He was sentenced in accordance with the plea agreement.
Defendant appeals, claiming his conviction for intimidating a witness must be reversed because the trial court did not have an adequate factual basis at the time it accepted appellant's plea to that offense. Concluding the error was harmless, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2010, defendant was charged with first degree robbery (§ 212.5, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), false imprisonment (§ 236), cutting a phone line (§ 591), and unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)), with enhancements for commission of the robbery in concert with two or more persons (§ 213, subd. (a)(1)(A)) and personal use of a deadly weapon (§ 12022, subd. (b)). After the preliminary examination on these charges, defendant was charged in a new complaint with attempting to dissuade a witness from testifying. (§ 136.1, subd. (a)(2).) Defendant waived a preliminary examination on this offense.
In exchange for a stipulated state prison sentence of six years eight months, defendant pled guilty to all charges except the robbery offense, which was dismissed along with the enhancements. The deputy district attorney and defendant's attorney agreed that the preliminary examination transcript constituted a factual basis for the pleas. They also agreed that the matter did not need to be referred to the probation department. At a subsequent hearing, defendant was sentenced in accordance with the plea agreement.
Two months later, a post-sentence report was filed, which contained, among other things, a summary of the facts underlying defendant's offenses. With regard to his conviction for dissuading a witness, the report summarized the police report from the incident as follows: "[T]he defendant threatened codefendant Carl Cromp with bodily harm were he to testify about the defendant's role in the residential robbery described below in Case No. 10F2326. This information came to light from recordings of a jail visit in which the defendant told his visitor of his threats of harm to Cromp. Investigators interviewed Cromp who confirmed he was threatened by the defendant."
Defendant contends his guilty plea to dissuading a witness was invalid because the trial court lacked an adequate factual basis for the plea. The People concede the court erred by relying on the preliminary examination transcript to provide a factual basis for this plea. As the preliminary examination took place before defendant committed the offense and he waived a preliminary examination as to that offense, their concession is well taken. However, they maintain the error was harmless because the record contains an adequate basis for the plea. We agree.
Before accepting a guilty or no contest plea pursuant to a plea agreement in a felony case, the trial court is required to make inquiry to establish that there is a factual basis for the plea.*fn2 (§ 1192.5; People v. Holmes, supra, 32 Cal.4th at pp. 440-442.) "'The purpose of the requirement 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. [Citation.] Inquiry into the factual basis for the plea ensures that the defendant actually committed a crime at least as serious as the one to which he is willing to plead.'" (People v. French (2008) 43 Cal.4th 36, 50.)
"The factual basis required by section 1192.5 does not require more than establishing a prima facie factual basis for the charges. [Citation.] It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime [citation], nor does the trial court have to be convinced of defendant's guilt." (People v. Holmes, supra, 32 Cal.4th at p. 441, fn. omitted.) Even "an accused's claim of innocence does not preclude entry of a guilty or nolo contendere plea where the court taking the plea ascertains a 'factual basis' therefor." (In re Alvernaz (1992) 2 Cal.4th 924, 940, fn. 9.)
Error in failing to adequately determine a factual basis is subject to harmless error review. (People v. Coulter (2008) 163 Cal.App.4th 1117, 1122.) "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 conditional plea." (People v. Holmes, supra, 32 Cal.4th at p. 443.) In other words, we review the entire record to determine whether it "contains sufficient information to ensure the defendant committed the acts to which the plea was entered." (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576; see People v. Tigner (1982) 133 Cal.App.3d 430, 435.) In so doing, "we are not looking for evidence sufficient to support a conviction in a trial after a not guilty plea. Instead, we are seeking to determine whether the reports contain sufficient information upon which the trial court could conclude there was a prima facie factual basis for the charges." (People v. Wilkerson, supra, 6 Cal.App.4th at pp. 1579-1580.)
The People argue that the summary of facts contained in the post-sentence report establishes a factual basis for defendant's plea to dissuading a witness, rendering harmless the trial court's error. Defendant agrees the post-sentence report contains a factual basis for his plea, but contends the error was not harmless because the post-sentence report was not available to the trial court prior to sentencing. Before any judgment can be reversed for error, it must appear that the error "has resulted in a miscarriage of justice." (Cal. Const. art. VI, § 13.) Here, there was no miscarriage of justice.
As already discussed, on appeal, we review the record to determine whether it contains a factual basis for the plea, which renders the trial court's error harmless. (People v. Wilkerson, supra, 6 Cal.App.4th at p. 1576.) Defendant has not cited any legal basis for limiting this review to information before the trial court prior to the pronouncement of judgment, nor can we think of any. To the contrary, in other contexts, our courts have reviewed the entire record in evaluating whether an error was prejudicial. (See, e.g., People v. Watson (1956) 46 Cal.2d 818, 836 ["'entire cause'" examined to evaluate prejudice from error in scope of cross-examination of defendant]; People v. Concha (2010) 182 Cal.App.4th 1072, 1089 ["entire record" reviewed in evaluating prejudice from instructional error]; People v. Fraser (2006) 138 Cal.App.4th 1430, 1450 ["'entire record'" reviewed in evaluating erroneous denial of right to self-representation].)
Defendant maintains he was prejudiced because he did not have an opportunity to review and dispute the information contained in the post-sentence report. He complains that the report "will follow [him] and will serve as the factual summary of his criminal offense" without him having had an opportunity to "raise any factual errors" contained therein. But the probation department was required to prepare a report for the Department of Corrections and Rehabilitation that included information about "the circumstances surrounding the offense." (§ 1203c, subds. (a)(1) & (b).) By waiving preparation of a presentence probation report, defendant gave up the chance to review and address this information. In other words, defendant set up the very situation about which he now complains.
Moreover, as already noted, only a prima facie showing is required to establish the factual basis for a plea and even a defendant's claim of innocence does not preclude the entry of a guilty or nolo contendere plea where the court ascertains a factual basis. That defendant's version of events might have differed from those contained in the police report (which was summarized in the post-sentence report) does not negate the factual basis for the plea.
Accordingly, we conclude that, as the record contains an adequate factual basis for defendant's guilty plea to dissuading a witness, the trial court's error was harmless.
The judgment is affirmed.
NICHOLSON , Acting P. J.
ROBIE , J.