Filed 10/3/13 P. v. Williamson CA5

                                                        IN THE
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 This opinion has not been certified for publication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.


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

THE PEOPLE,
                                                                                     F064010
                   Plaintiff and Respondent,
                                                                        (Super. Ct. No. 08CM1499)
                   v.

ANGELITO GARIN WILLIAMSON,                                         MODIFICATION OF OPINION
                                                                     [No Change in Judgment]
                   Defendant and Appellant.


BY THE COURT:
         It is ordered that the nonpublished opinion filed in the instant case on September
23, 2013, be modified as follows:
         “People v. Fuquay (2013) 215 Cal.App.4th 883, 912;” is deleted from the last
paragraph on page 5.
         This modification does not change the judgment.


                                                                            _________________________
                                                                            Franson, J.
WE CONCUR:


_____________________
Kane, Acting P.J.


_____________________
Detjen, J.
Filed 9/23/13 (unmodified version)

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064010
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 08CM1499)
                   v.

ANGELITO GARIN WILLIAMSON,                                                               OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.
         Hayes H. Gable, 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, Catherine Chatman and Eric L.
Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




         *         Before Kane, Acting P.J., Detjen, J. and Franson, J.
       Following a bench trial, the court convicted appellant, Angelito Garin Williamson,
of oral copulation or sexual penetration of a child under the age of 10 (count 1/Pen. Code,
§ 288.7, subd. (b))1; oral copulation with a child under the age of 14 and more than 10
years younger than the defendant (count 3/§ 288a, subd. (c)(1)); forcible oral copulation
(count 4/§ 288(a), subd. (c)(2)); and lewd and lascivious conduct by force with a child
under the age of 14 (count 5/§ 288, subd. (b)(1)).
       On appeal, Williamson contends the court violated his federal right to due process
by its failure to question him regarding his rejection of a plea offer. We affirm.
                                            FACTS
       On May 17, 2008, Williamson was arrested after his girlfriend’s daughter reported
that Williamson had been molesting her on an ongoing basis.
       On February 10, 2009, the district attorney filed an amended information charging
Williamson with the counts he was convicted of and one count of continuous sexual
abuse of a child (count 2/§ 288.5).
       On October 29, 2009, the court suspended criminal proceedings and committed
Williamson to Atascadero State Hospital for treatment after finding Williamson
incompetent to stand trial.
       On December 14, 2009, the court found Williamson had regained his competency
and reinstated criminal proceedings.
       At a hearing on November 10, 2010, the prosecutor offered a stipulated,
determinate sentence of 12 years for appellant’s plea to one count. Defense counsel
asked the court for a few minutes so Williamson could consider the offer and the court
eventually continued the matter two days.




       1      All further statutory references are to the Penal Code.


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       On November 12, 2010, the court asked defense counsel if there had been a
resolution of the matter and counsel advised the court there had not. The court then set a
date for the pretrial.
       On March 25, 2011, the court again suspended criminal proceedings after it again
found Williamson incompetent to stand trial. On June 22, 2011, the court reinstated
criminal proceedings after again finding Williamson competent to stand trial.
       On October 25, 2011, following Williamson’s waiver of his right to a jury trial, a
court trial in this matter began.
       On October 28, 2011, the court granted the prosecutor’s motion to dismiss count 2
and it convicted Williamson on the remaining counts.
       On November 30, 2011, the court sentenced Williamson to an aggregate,
indeterminate term of 23 years to life, an eight year term on count 3, an indeterminate
term of 15 years to life on count 1, and stayed terms on counts 4 and 5.
                                         DISCUSSION
       In Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), the Supreme Court held that
counsel is required to advise a defendant of the immigration consequences of his plea.
(Id. at p. 359.) In Missouri v. Frye (2012) 132 S.Ct. 1399 (Missouri), the Supreme Court
held that “as a general rule, defense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that may be favorable to
the accused.” (Id. at p. 1408.) In Lafler v. Cooper (2012) 132 S.Ct. 1376 (Lafler), the
Supreme Court considered “how to apply Strickland’s[2] prejudice test where ineffective
assistance results in a rejection of the plea offer and the defendant is convicted at the
ensuing trial.” (Id. at p. 1384.)

       2       In Strickland v. Washington (1984) 466 U.S. 668, 694, the Supreme Court held
that a defendant claiming ineffective assistance of counsel “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.”


                                                 3
       Additionally, due process requires the trial court to advise a defendant of his rights
of confrontation, to a jury trial and against self-incrimination, and to take an appropriate
waiver of those rights before a defendant may validly enter a guilty plea. (Boykin v.
Alabama (1969) 395 U.S. 238, 242-243 (Boykin); In re Tahl (1960) 1 Cal.3d 122, 124
(Tahl).)
       Williamson cites Padilla, Missouri, and Lafler to contend that because the
Supreme Court recently expanded a defendant’s rights during plea bargaining, the “same
reasons” that justify requiring a court to advise a defendant of his constitutional rights
and to take an adequate waiver of those rights justify “that such an on-the-record inquiry
be conducted to safeguard a defendant’s rejection of a plea offer.” Thus, according to
Williamson, the trial court denied him his federal right to due process by its failure “to
question [him] to ensure that he knowingly, voluntarily, and intelligently understood the
People’s offer and the possible consequences of rejecting such an offer.” Williamson is
wrong.
       In Boykin, the court explained the rationale for requiring a court to inquire into the
voluntariness of a plea:

               “A plea of guilty is more than a confession which admits that the
       accused did various acts; it is itself a conviction; nothing remains but to
       give judgment and determine punishment. [Citation.] Admissibility of a
       confession must be based on a ‘reliable determination on the voluntariness
       issue which satisfies the constitutional rights of the defendant.’ [Citation.]
       The requirement that the prosecution spread on the record the prerequisites
       of a valid waiver is no constitutional innovation. In Carnley v. Cochran,
       369 U.S. 506, 516, we dealt with a problem of waiver of the right to
       counsel, a Sixth Amendment right. We held: ‘Presuming waiver from a
       silent record is impermissible. The record must show, or there must be an
       allegation and evidence which show, that an accused was offered counsel
       but intelligently and understandingly rejected the offer. Anything less is
       not waiver.’

               “We think that the same standard must be applied to determining
       whether a guilty plea is voluntarily made. For, as we have said, a plea of
       guilty is more than an admission of conduct; it is a conviction. Ignorance,
       incomprehension, coercion, terror, inducements, subtle or blatant threats

                                              4
       might be a perfect cover-up of unconstitutionality. The question of an
       effective waiver of a federal constitutional right in a proceeding is of course
       governed by federal standards. [Citation.]

               “Several federal constitutional rights are involved in a waiver that
       takes place when a plea of guilty is entered in a state criminal trial. First, is
       the privilege against compulsory self-incrimination guaranteed by the Fifth
       Amendment and applicable to the States by reason of the Fourteenth.
       [Citation.] Second, is the right to trial by jury. [Citation]. Third, is the
       right to confront one’s accusers. [Citation] We cannot presume a waiver of
       these three important federal rights from a silent record.

              “What is at stake for an accused facing death or imprisonment
       demands the utmost solicitude of which courts are capable in canvassing
       the matter with the accused to make sure he has a full understanding of
       what the plea connotes and of its consequence. When the judge discharges
       that function, he leaves a record adequate for any review that may be later
       sought [citations], and forestalls the spin-off of collateral proceedings that
       seek to probe murky memories.” (Boykin, supra, 395 U.S. at pp. 242-244,
       fns. omitted.)
       In Tahl, the California Supreme Court followed Boykin in holding that “each of
the three rights mentioned--self-incrimination, confrontation, and jury trial--must be
specifically and expressly enumerated for the benefit of and waived by the accused prior
to acceptance of his guilty plea.” (Tahl, supra, 1 Cal.3d at p. 132.)
       A defendant’s rejection of a plea offer is not analogous to a conviction, nor does it
involve a waiver of constitutional rights by a defendant. Therefore there is no merit to
Williamson’s claim that an inquiry into the voluntariness of a defendant rejecting a plea
bargain is required by the “same reasons” that require a court to inquire into the
voluntariness of a defendant’s plea.
       Further, we will not decide theoretical constitutional questions which are based
upon faulty premises. (People v. Fuquay (2013) 215 Cal.App.4th 883, 912; People v.
Moore (2011) 51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty
premise]; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim
challenging state’s actions rejected where argument based upon faulty premise that
defendant committed no unlawful act]; Berardi v. Superior Court (2008) 160 Cal.App.4th

                                              5
210, 228 [court will not decide “hypothetical or other questions of constitutional law
unnecessary to our disposition of the case”].) Accordingly, we reject Williamson’s
contention that the court violated his federal right to due process by its failure to inquire
into the voluntariness of his rejection of the plea offer.
                                       DISPOSITION
       The judgment is affirmed.




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