P. v. Palmer

Filed 7/2/12 P. v. Palmer CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID EDWARD PALMER,
Defendant and Appellant.
H036979
(Santa Clara County
Super. Ct. No. C1094540)
Defendant, David Edward Palmer, was convicted by negotiated no contest plea of
possession of 3, 4-methylenedioxy methamphetamine (MDMA) (Health & Saf. Code,
§ 11378). Pursuant to the plea agreement, the trial court suspended imposition of
sentence and placed defendant on probation for three years with various terms and
conditions, including that he serve nine months in county jail and pay a $50 criminal lab
analysis fee plus penalty assessments and a $150 drug program fee plus penalty
assessments.
On appeal, defendant contends that the conviction must be reversed and the matter
remanded so that the trial court can make a proper inquiry into the factual basis for the
plea. He further contends that the probation order must include a breakdown of all the
penalty assessments ordered. We will affirm.

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BACKGROUND
Defendant was charged by felony complaint filed December 9, 2010, with
possession of MDMA (Health & Saf. Code, § 11378; count 1) and possession for sale of
marijuana (Health & Saf. Code, § 11359; count 2). Although the complaint states that
“attached and incorporated by reference are official reports and documents of a law
enforcement agency,” the clerk of the superior court has filed a certificate stating that no
attachments to the complaint can be found in the superior court file.
On March 18, 2011, defendant entered into a negotiated plea agreement whereby
he pleaded no contest to count 1 on condition that count 2 be dismissed and that he serve
nine months in county jail. On May 20, 2011, pursuant to the negotiated plea agreement,
the court suspended imposition of sentence and placed defendant on probation for three
years with various terms and conditions, including that he serve nine months in county
jail and pay a $50 criminal lab analysis fee plus penalty assessments and a $150 drug
program fee plus penalty assessments.
Defendant filed a timely notice of appeal. On October 20, 2011, this court granted
defendant leave to file an amended notice of appeal and a request for certificate of
probable cause. Defendant filed the amended notice of appeal and request for certificate
of probable cause on October 28, 2011, and the trial court granted the request for a
certificate of probable cause on November 2, 2011.
DISCUSSION
Factual Basis for the Plea
On March 18, 2011, after defendant entered his no contest plea to count 1, the
prosecutor voir dired defendant regarding his plea. During the voir dire, the prosecutor
asked defendant, “Have you discussed the elements of the crime and the defenses with
your attorney?” Defendant responded, “Yeah.” The prosecutor asked, “Are you satisfied
with her advice?” Defendant responded, “Yes.” The prosecutor asked, “Do you
stipulate, [counsel], there‟s a factual basis for [the] plea as the People do?” Defendant‟s

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counsel responded, “Yes, I do stipulate.” The prosecutor asked, “And do you also waive
your preliminary examination . . . ?” Defendant responded, “Yes.” The prosecutor
waived a preliminary examination as well, and both parties waived a probation report.
At the end of the voir dire, the court stated that it found “responses to the voir dire
to the District Attorney had been intelligently given and to the extent that there were
stipulated rights they were also knowingly [and] intelligently entered into by the
defendant.”
On appeal, defendant contends that the conviction must be reversed and the matter
remanded to allow the trial court to make a proper inquiry into the factual basis for the
plea. He argues that a bare stipulation by the parties that there is a factual basis for a plea
is insufficient to satisfy the requirements of Penal Code section 1192.51 and People v.
Holmes (2004) 32 Cal.4th 432, and, because a preliminary examination and a probation
report were both waived, there is nothing in the record to support a factual basis in this
case.
The People contend that the plea was proper. “Where the parties stipulate to a fact
at trial, the fact finder must regard that fact as proved.” “Where, as here, the record
shows the defendant discussed the charge and possible defenses with counsel and was
satisfied with her advice, then stipulated there was a factual basis for the plea, the
stipulation at the very least is a waiver of a reference to a particular document in the
record, and satisfies section 1192.5.”
“In order to appeal after a conviction by plea of guilty or nolo contendre, a
defendant must obtain a certificate of probable cause from the trial court. (§ 1237.5.)
„Issues cognizable on an appeal following a guilty plea are limited to issues based on
“reasonable constitutional, jurisdictional, or other grounds going to the legality of the
1 All further statutory references are to the Penal Code unless otherwise specified.

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proceedings” resulting in the plea. (§ 1237.5; [citation].) The issuance of a certificate of
probable cause pursuant to section 1237.5 does not operate to expand the grounds upon
which an appeal may be taken as that section relates only to the “procedure in perfecting
an appeal from a judgment based on a plea of guilty.” [Citations.]‟ [Citation.]” (People
v. Voit (2011) 200 Cal.App.4th 1353, 1364 (Voit).)
“In order to ensure that the entry of a plea is voluntary, California requires an
inquiry by the trial court in some cases. „When taking a conditional plea of guilty or nolo
contendre (hereafter no contest) to an accusatory pleading charging a felony, a trial court
is required by Penal Code section 1192.5 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.” ‟ (People v. Holmes[, supra,] 32 Cal.4th [at p.] 435 . . . ,
fn. omitted.) „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.]‟ [Citation.] The inquiry
also protects against an innocent person entering a guilty plea and creates a record against
possible appellate or collateral attack. [Citation.]” (Voit, supra, 200 Cal.App.4th at
p. 1365.)
“ „[A] trial court possesses wide discretion in determining whether a sufficient
factual basis exists for a guilty plea. The trial court‟s acceptance of the guilty plea, after
pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be
reversed only for abuse of discretion.‟ ([People v.] Holmes, supra, [32 Cal.4th] at
p. 443.)” (People v. Marlin (2004) 124 Cal.App.4th 559, 572 (Marlin).)
“We do not believe that a plea of guilty or no contest forecloses a defendant from
challenging [on appeal] the procedure that resulted in the plea. A trial court‟s alleged
complete failure to conduct the required [factual basis] inquiry does not concern the
defendant‟s guilt or innocence or the sufficiency of the evidence of guilt.” (Voit, supra,
200 Cal.App.4th at p. 1369, italics omitted.) “[I]n light of the policies served by the

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inquiry requirement, a failure to make any inquiry, „while not a constitutional or
jurisdictional requirement, is one of the “other” grounds going to the legality of the
proceedings in the trial court.‟ (Marlin, supra, 124 Cal.App.4th 559, 571.)” (Voit, supra,
at p. 1369.) “Whether there was an inquiry of the kind required by the statute is a
procedural question.” (Ibid.)
“On the other hand, when the trial court does make an inquiry on the record as to
the factual basis for a plea, an appellate claim that the inquiry was not „sufficient‟ or
„adequate‟ is often, as it was in Marlin, essentially a challenge not to the trial court‟s
process but to its ultimate conclusion that there was a factual basis for the plea. In such a
case, the defendant‟s position is concerned with the sufficiency of the evidence of his or
her guilt. A defendant who belatedly disputes the existence of evidence of his or her guilt
is making a substantive, not a procedural, claim.” (Voit, supra, 200 Cal.App.4th at
p. 1370.)
A defense counsel‟s stipulation that there is a factual basis for defendant‟s plea
“must be regarded as an admission by defendant [when it is] made in defendant‟s
presence with defendant‟s apparent assent. It is „settled that a party is bound by a
stipulation or admission in open court of his counsel, and, except where a constitutional
proscription is involved, he cannot mislead the court by seeming to take a position on the
issues and then disputing or repudiating the position on appeal.‟ [Citation.]” (Voit,
supra, 200 Cal.App.4th at p. 1372, fn. 14.)
In this case, in response to the prosecutor‟s inquiry, defendant stated on the record
in open court that he had reviewed the charges against him and his possible defenses with
his counsel, and that he was satisfied with his counsel‟s advice. His counsel and the
prosecutor then stipulated that there was a factual basis for defendant‟s no contest plea.
The court found that defendant‟s answers to the prosecutor‟s inquiry and the stipulations
were knowingly and intelligently entered into. On this record, defense counsel‟s
stipulation that there was a factual basis for the plea “must be regarded as an admission

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by defendant [as it was] made in [open court in] defendant‟s presence with defendant‟s
apparent assent.” (Voit, supra, 200 Cal.App.4th at p. 1372, fn. 14.) Therefore,
defendant‟s contention that the factual basis inquiry was not sufficient is “essentially a
challenge not to the trial court‟s process but to its ultimate conclusion that there was a
factual basis for the plea.” (Voit, supra, at p. 1370.) However, the trial court‟s
acceptance of the guilty plea after an inquiry into the factual basis for the plea can only
be reversed for an abuse of discretion. (Marlin, supra, 124 Cal.App.4th at p. 572.)
Given defendant‟s and the prosecutor‟s stipulation to a factual basis, we see no reason to
reverse the judgment and remand the matter to allow another inquiry into the factual basis
for defendant‟s plea.
Penalty Assessments
The court ordered defendant to pay a $50 criminal lab analysis fee, plus penalty
assessments, and a $150 drug program fee, plus penalty assessments, as a condition of his
probation. The amended order of probation filed August 18, 2011, states that the penalty
assessments for the $50 criminal lab analysis fee are $150, and the penalty assessments
for the $150 drug program fee are $450. In his opening brief on appeal, defendant
contends that the order of probation does not, but should, include the correct amount of
the penalty assessments as well as a breakdown of the statutory basis for the penalty
assessments. In his reply brief, defendant acknowledges that the probation order does
include the correct amount of the penalty assessments but continues to contend that the
order should also include a “specific breakdown” of the statutory basis for each of the
ordered penalty assessments. Defendant requests that this court remand the matter to the
trial court so that the order of probation can be amended to include “a detailed breakdown
of the statutory bases for the assessments.”
The People contend that, because the “penalty assessments are correctly identified
statute by statute in the chart in [defendant‟s] [o]pening [b]rief,” and the total amount of

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the penalty assessments included in the order of probation is correct, no remand is
warranted.
We acknowledge that, in order to facilitate review of the penalty assessments
imposed in a case, as well as to assist in collection efforts, it is important for the trial
court to recite the statutory bases for all penalty assessments imposed. (See People v.
Taylor (2004) 118 Cal.App.4th 454, 456-460; People v. High (2004) 119 Cal.App.4th
1192, 1200.) However, in this era of budget cuts and limited judicial resources, given
that defendant‟s counsel has correctly identified the “specific breakdown” of the statutory
bases for the penalty assessments and has agreed that the amounts included in the order
of probation are correct, we see no reason to remand the matter to the trial court for an
amendment to the order of probation.
DISPOSITION
The judgment (order of probation) is affirmed.
___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
GROVER, J.*
*Judge of the Monterey County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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