Filed 7/7/14 P. v. Ali CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067103

                   v.                                                    (Super. Ct. No. F12907764)

HUSSEIN KIETTY ALI,                                                               OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. Jon N.
Kapetan, Judge.
         Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



        Before Cornell, Acting P.J., Poochigian, J., and Franson, J.
       Defendant Hussein Kietty Ali pled guilty to battery by a prisoner on a non-
confined person (Pen. Code, § 4501.5)1 and admitted a prior strike conviction (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)). On appeal, he contends the trial court failed to
include in the record a document in support of its finding of a sufficient factual basis in
support of defendant’s guilty plea. The People concede that we must remand for
inclusion of the document in the record. In light of a recent Supreme Court decision,
however, we conclude remand is not required.
                                       DISCUSSION
I.     Law
       In People v. Palmer (2013) 58 Cal.4th 110 (Palmer), a recent case filed after both
parties submitted their briefs in this case, the Supreme Court explained:

               “When a trial court takes a conditional plea of guilty or nolo
       contendere (hereafter no contest) to an accusatory pleading charging a
       felony, under Penal Code section 1192.5 it must ‘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.’ ‘“The purpose of the
       requirement,”’ we have said, ‘“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. French (2008) 43 Cal.4th 36, 50.) In People v.
       Holmes (2004) 32 Cal.4th 432 (Holmes), we held the trial court can satisfy
       this requirement by inquiring of defense counsel regarding the factual basis
       of the plea, in which case, we said, ‘it should request that defense counsel
       stipulate to a particular document that provides an adequate factual basis,
       such as a complaint, police report, preliminary hearing transcript, probation
       report, grand jury transcript, or written plea agreement.’ (Id. at p. 436,
       citing People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576-1579.) We did
       not need to address in Holmes, and expressly left open, the question
       whether section 1192.5 is satisfied when counsel stipulates to a factual
       basis for the plea without referring to a particular document that provides



1      All statutory references are to the Penal Code unless otherwise noted.


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       an adequate factual basis. (Holmes, supra, at p. 441, fn. 8.)” (Palmer,
       supra, 58 Cal.4th at pp. 112-113, fn. omitted.)
       Palmer provided an opportunity for the Supreme Court “to answer the question
left open in Holmes, supra, 32 Cal.4th 432: whether [defense] counsel’s bare stipulation,
without reference to any document describing the underlying facts, sufficiently
establishes a factual basis for the plea.” (Palmer, supra, 58 Cal.4th at pp. 113-114.) The
court’s conclusion was that “a bare stipulation without reference to any document
describing the facts may, in an appropriate case, satisfy the requirements of section
1192.5.” (Id. at p. 114.) The court explained that the defendant “acknowledged in the
plea colloquy that he had discussed the elements of the crime and any defenses with his
counsel and was satisfied with her advice”; therefore “the trial court did not abuse its
discretion in finding a factual basis for defendant’s no contest plea based on counsel’s
stipulation.” (Ibid.)

       The Palmer court explained its analysis in more detail:

               “Section 1192.5 requires the trial court to make an inquiry to satisfy
       itself that there is a factual basis for a conditional plea of guilty or no
       contest. The purpose of the factual basis requirement is to help ensure that
       the constitutional standards of voluntariness and intelligence are met.
       (Holmes, supra, 32 Cal.4th at pp. 438-439.) In Holmes we observed that,
       although the statute requires the ‘“inquiry to be made of defendant”
       (§ 1192.5),’ a ‘stipulation by counsel to the plea’s factual basis is consistent
       with the legislative purpose of the statute. While defendant may not be in a
       position to recognize whether his acts do or do not “‘constitute the offense
       with which he is charged’” [citation], defense counsel is well suited to
       make such a determination.’ (Holmes, supra, at p. 440, fn. 5.) We said the
       ‘better approach’ in this circumstance is for counsel’s stipulation to include
       reference to a particular document that provides an adequate factual basis,
       but we did not hold such reference is required. (Id. at p. 441, fn. 8.) We
       now make clear that, while inclusion of such reference in the stipulation is
       desirable as a means of eliminating any uncertainty regarding the existence
       of a factual basis, the trial court may satisfy its statutory duty by accepting
       a stipulation from counsel that a factual basis for the plea exists without
       also requiring counsel to recite facts or refer to a document in the record
       where, as here, the plea colloquy reveals that the defendant has discussed
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the elements of the crime and any defenses with his or her counsel and is
satisfied with counsel’s advice.

        “This rule is consistent with defense counsel’s broad authority to
stipulate to factual and procedural matters on his client’s behalf. Even at
trial, counsel may stipulate to the existence or nonexistence of essential
facts. [Citation.] Counsel may also stipulate to the admissibility of
evidence or to narrow the range of litigable issues. [Citations.]
Stipulations obviate the need for proof and are independently sufficient to
resolve the matter at issue in the stipulation. [Citation.]

        “‘[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.’
[Citation.] We see several reasons to accord trial courts flexibility in
establishing a factual basis for the plea, without undermining the primary
goal of assuring that the defendant entered the plea voluntarily and
intelligently. A defendant may be factually guilty but still hesitate to
stipulate to the truth of an entire document like a police report that contains
details he or she either disputes or simply does not want to admit. If there
is no stipulated sentence, counsel may fear the police reports will
demonstrate the existence of aggravating factors that could cause the court
to impose a higher sentence, or to reject the plea bargain altogether. In
sensitive cases involving intrafamilial violence and abuse, a defendant may
wish to avoid having confidential information about the victim become part
of the public record in the case. Although, as defendant notes, a factual
basis does not require recitation of detailed and damaging facts concerning
the crime, and counsel may place on the record only facts that support a
prima facie case [citation], a rule limiting trial courts’ discretion to accept
conditional pleas predicated on stipulations by counsel would raise
potential concerns for the defense function. In particular, defense counsel
may advise acceptance of a plea agreement based in part on admissions the
client has made or on other defense investigation, and may rely on such
admissions or investigation in stipulating to the factual basis for a plea. We
will not read into section 1192.5 a requirement that counsel explicitly refer
to those privileged sources as the basis for the stipulation.

       “Here, defense counsel and the prosecutor, both officers of the court,
stipulated to a factual basis for defendant’s plea. Defendant affirmed
during voir dire that he had discussed the elements of the crime with his
counsel, and that he was satisfied with counsel’s advice. At no time did he
protest his factual innocence. On this record, the stipulation satisfied the

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      requirements of section 1192.5, and the trial court acted within its
      discretion in accepting defendant’s plea.” (Palmer, supra, 58 Cal.4th at
      pp. 118-119, fn. omitted.)
II.   Facts
      In the present case, the following occurred at the change of plea hearing:

             “THE COURT: Mr. Ali, sir, I’m holding in my hand a Change of
      Plea Form. It has the name Hussein Ali on it as well as initials and
      signatures …. Do you recognize this form?

              “THE DEFENDANT: Yes[,] Your Honor.

              “THE COURT: Mr. Ali, are those your initials and signatures on the
      form?

              “THE DEFENDANT: Yes, Your Honor.

             “THE COURT: And, sir, have you had enough time to discuss this
      matter with [defense counsel]?

              “THE DEFENDANT: Yes, Your Honor.

             “THE COURT: Sir, did you understand everything that you signed
      and/or initialed on this Change of Plea Form?

              “THE DEFENDANT: Yes, Your Honor.

             “THE COURT: [S]ir, as to the sole Count One, Penal Code
      [section] 4501.5, how do you plea[d]?

              “THE DEFENDANT: Guilty, Your Honor.

            “THE COURT: I’ll accept your guilty plea as being freely,
      voluntarily and intelligently entered. [¶] I’ll sign and incorporate the
      Change of Plea Form into the record.

              “Counsel stipulate if I were to—strike that. [¶] [Defense counsel]
      has written out a stipulation or statement of facts. [‘]The prison reports
      state that on 5/25/2012 in this county I punched a prison guard with a fist
      while I was a prisoner.[’]

             “[PROSECUTOR]: It can’t just say that they state. There actually
      has to be a factual basis.

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       “THE COURT: Do you want to offer one?

       “[DEFENSE COUNSEL]: If we’re going to incorporate the
document, we can incorporate the substance of [the] document. So we’ll
stipulate to that.

       “THE COURT: Do you warrant [sic] to stipulate to the prison report
that was filed in that case?

       “[DEFENSE COUNSEL]: To that portion that is reflected there.

       “THE COURT: Stipulate?

       “[PROSECUTOR]: Yes, Your Honor.

       “THE COURT: All right then. I’ll accept those stipulations to form
a factual basis upon which to accept Mr. Ali’s plea. [¶] … [¶]

       “THE COURT: Mr. Ali, sir, do you understand you have the right
to have a probation report completed in this case?

       “THE DEFENDANT: Yes, Your Honor.

     “THE COURT: Do you give up that right so I can sentence you
immediately?

       “THE DEFENDANT: Yes, Your Honor.

       “THE COURT: People also give up their right?

       “[PROSECUTOR]: Yes, Your Honor…. [¶] … [¶]

       “THE COURT: All right then. Anything further?

       “[DEFENSE COUNSEL]: No, Your Honor.

       “THE COURT: Any legal cause?

       “[DEFENSE COUNSEL]: No legal cause.

       “THE COURT: Waive formal reading [of] advisement of rights?

       “[DEFENSE COUNSEL]: Waived.”
At this point, the court proceeded to sentence defendant.


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III.   Analysis
       In this case, defendant informed the court that he had discussed the plea with
counsel and that he understood everything in the plea form. The court noted that counsel
had offered a statement of facts in the plea form, but the prosecutor objected to the
statement’s reference to what the prison report stated. Defense counsel then stipulated to
the substance of the prison report—the “portion that is reflected there.” In other words,
counsel stipulated to the facts in the prison report that had been written on the plea form,
a document that is part of the record and states: “The facts on which I base my plea are:
THE … PRISON REPORTS STATE THAT ON 5-25-12, IN THIS COUNTY, I
PUNCHED A PRISON GUARD WITH FISTS WHILE I WAS A PRISONER.”
       Although defense counsel referred to a specific document that is not part of the
record, he also specified that he was stipulating to the portion of that document that stated
the facts written on the plea form. Defendant said he understood everything in the plea
form, which included this factual statement, and he did not object to the stipulated factual
basis or protest his factual innocence. We believe that under these circumstances,
counsel’s stipulation was adequate, even without inclusion of the prison report in the
record. The specific facts to which he stipulated were plainly stated in the plea form and
referenced by counsel. We conclude the trial court properly determined that a sufficient
factual basis existed for the plea and thus did not abuse its discretion in accepting the
plea. (Palmer, supra, 58 Cal.4th at pp. 118-119.) Accordingly, we decline to accept the
People’s concession.
                                      DISPOSITION
       The judgment is affirmed.




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