IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 6 H036979
DAVID EDWARD PALMER,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. C109540
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 1192.51 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
Unless otherwise specified, further statutory references are to the Penal
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 an adequate factual basis. (Holmes, supra, at p.
441, fn. 8.)
In the present case, a felony complaint charged defendant David Edward
Palmer with violating Health and Safety Code section 11378 by possessing 3, 4-
methylenedioxymethamphetamine (MDMA) for sale (count 1) and Health and
Safety Code section 11359 by possessing marijuana for sale (count 2). Pursuant to
a negotiated disposition, defendant entered a plea of no contest to count 1 in
exchange for a grant of probation and the dismissal of count 2. As part of the plea
proceeding, defendant waived both a preliminary hearing and a probation report.
The prosecutor conducted a voir dire of defendant, eliciting that in entering his
plea he was not under the influence of any drug, medication or alcohol that was
affecting his decisionmaking, that apart from the negotiated disposition of the case
no promises or threats had been made to him, that he had discussed the elements
of the crime and any defenses with his counsel and was satisfied with her advice,
and that he was entering his plea knowingly and voluntarily. Defense counsel then
stipulated to the existence of a factual basis for defendant‘s plea without referring
to any document to support the stipulation. The trial court suspended imposition
of sentence and granted defendant three years‘ probation on the condition he serve
270 days in county jail.
After obtaining a certificate of probable cause (see § 1237.5, subd. (b)),
defendant appealed on the ground that his counsel‘s stipulation failed to satisfy the
requirements of section 1192.5. The Court of Appeal affirmed, reasoning that,
because the trial court had found defendant‘s stipulations and responses to the
prosecutor‘s voir dire to be knowing and voluntary, counsel‘s stipulation to a
factual basis for the plea ― ‗must be regarded as an admission by defendant,‘ ‖ as it
was made in open court ― ‗in defendant‘s presence with defendant‘s apparent
assent.‘ ‖ (Quoting People v. Voit (2011) 200 Cal.App.4th 1353, 1371, fn. 14
(Voit).) Therefore, the Court of Appeal reasoned, ―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.‘ ‖ (Quoting Voit, at p. 1370.) The court found no abuse of discretion in the
trial court‘s acceptance of the plea, citing People v. Marlin (2004) 124
Cal.App.4th 559, 572 [abuse of discretion standard applies to a challenge to a
We granted defendant‘s petition for review to determine whether a claim
the trial court failed to establish a factual basis for the plea under section 1192.5 is
cognizable on appeal when defense counsel stipulated to a factual basis and, if so,
to answer the question left open in Holmes, supra, 32 Cal.4th 432: whether
counsel‘s bare stipulation, without reference to any document describing the
underlying facts, sufficiently establishes a factual basis for the plea. We conclude
such claims are cognizable on appeal, and a bare stipulation without reference to
any document describing the facts may, in an appropriate case, satisfy the
requirements of section 1192.5. Here, where 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, the trial court did not abuse its
discretion in finding a factual basis for defendant‘s no contest plea based on
counsel‘s stipulation. We therefore affirm the judgment of the Court of Appeal.
Under section 1237.5, a defendant may appeal from a conviction on a plea
of guilty or no contest only on grounds going to the legality of the proceedings;
such a plea precludes appellate consideration of issues related to guilt or
innocence, including the sufficiency of the evidence to support the conviction.
(People v. DeVaughn (1977) 18 Cal.3d 889, 895-896; People v. Ward (1967) 66
Cal.2d 571, 575; People v. Gonzalez (1993) 13 Cal.App.4th 707, 713-714.)
Defendant contends his challenge to the trial court‘s finding of a factual basis for
his no contest plea is one going to the legality of the proceedings and hence
cognizable on appeal.
Defendant relies on People v. Marlin, supra, 124 Cal.App.4th 559, 571
(Marlin), where the court reasoned: ―Even though a defendant may in fact be
guilty of the offense to which he pleads guilty, given the policy considerations
underlying the intent behind section 1192.5, an adequate inquiry into the factual
basis for the plea addresses broader issues such as the voluntariness of the plea and
a knowing decision to plead guilty. A sufficient factual inquiry must be
considered a necessary component of the legality of the proceedings. To decide
otherwise would preclude review of the factual basis for a plea of guilty or no
contest thereby frustrating the policies the statute is intended to advance.‖
The Court of Appeal in Voit, supra, 200 Cal.App.4th 1353, on which the
People rely, disagreed with Marlin, reasoning that when a trial court makes an on-
the-record inquiry regarding the factual basis for a plea, an appellate claim that the
inquiry was insufficient ―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, at p. 1370.) The Court of Appeal in this case
followed Voit, finding defendant‘s claim to be essentially a challenge to the trial
court‘s ultimate conclusion that a factual basis for the plea existed.
We need not decide whether Marlin or Voit states the better view because
both differ from the present case in a significant respect. In each of those cases
the defendant stipulated that a specific document—the preliminary hearing
transcript—furnished a factual basis for his plea, whereas here the factual basis
stipulation referred to no such document or indeed any particular facts at all. As
framed, defendant‘s section 1192.5 claim addresses not the evidentiary sufficiency
of the prosecution‘s case—the substance of which cannot be ascertained on the
record before us—but rather the procedures by which the court ensured that
defendant knowingly and voluntarily pleaded no contest only to charges
corresponding in seriousness to the acts he committed. Put another way, his claim
challenges the superior court‘s procedure in soliciting facts, not its discretionary
evaluation of the facts. Hence, contrary to the Court of Appeal‘s reasoning,
defendant‘s appellate challenge to the factual basis inquiry is not reducible to a
mere attack on the ultimate conclusion a factual basis existed. In these
circumstances, the claim the trial court failed to establish a factual basis for
defendant‘s plea under section 1192.5 is cognizable on appeal notwithstanding
defense counsel‘s stipulation to a factual basis.
We turn to the merits of the factual basis question. Because the record is
devoid of any facts concerning the offense,2 defendant will prevail unless his
conduct below bars him from arguing here the inadequacy of the factual basis of
his plea, or unless counsel‘s stipulation itself satisfies section 1192.5‘s
requirement. The People contend both that principles of waiver and estoppel
should preclude defendant from challenging on appeal the factual basis of his plea,
and that the stipulation satisfies section 1192.5‘s policy goals and constitutes a
binding resolution of the evidentiary inquiry the statute requires.
As the People point out, defendant waived a preliminary hearing and
probation report, and he acknowledged having discussed the charge and defenses
with his counsel as well as his satisfaction with the advice he received. Defendant
did not assert below that the procedure the trial court followed failed to satisfy
section 1192.5, and he made no claim that the court or counsel should have
identified a document or documents supporting the factual basis of the plea. These
Although the felony complaint in this case recites that ―attached and
incorporated by reference are official reports and documents of a law enforcement
agency which the complainant believes establish probable cause for the pretrial
restraint of [defendant] for the above-listed crimes,‖ the superior court clerk was
unable to locate any attachments to the complaint after a diligent search.
actions, the People contend, forfeited the claim of an inadequate factual basis for
appellate purposes. In support, they cite People v. Vera (1997) 15 Cal.4th 269,
276, where we said, ―It is both unfair and inefficient to permit a claim of error on
appeal that, if timely brought to the attention of the trial court, could have been
easily corrected or avoided,‖ and our statement in People v. Scott (1994) 9 Cal.4th
331, 351, that ―[i]n such cases, lack of a timely and meaningful objection forfeits
or waives the claim.‖ Waiver and forfeiture principles are appropriately applied to
most kinds of trial error, including those at issue in Vera and Scott. But their
application in the present context would be inappropriate, given the prophylactic
purpose behind the factual basis requirement, a purpose analogous to that behind
the prophylactic advisements of applicable federal constitutional rights given a
defendant before his or her guilty plea is taken, which ―helps ensure that the
‗constitutional standards of voluntariness and intelligence are met.‘ ‖ (Holmes,
supra, 32 Cal.4th at p. 438, quoting People v. Hoffard (1995) 10 Cal.4th 1170,
1182, fn. 11; cf. Boykin v. Alabama (1969) 395 U.S. 238, 243 [―We cannot
presume a waiver of these three important federal rights [against compulsory self-
incrimination, to trial by jury, and to confront one‘s accusers,] from a silent
Against this conclusion, the People contend the defense agreed, through its
stipulation, that the court satisfied its statutory obligation to make an inquiry into a
factual basis, and this agreement necessarily waived the claim that there was an
insufficient factual basis for the plea or that the stipulation, made after defendant
accepted a plea bargain on the advice of his counsel, failed to fulfill the purpose of
section 1192.5‘s requirement of a factual basis inquiry. But nothing on the face of
the stipulation in this case suggests defendant was specifically agreeing that the
trial court had satisfied its statutory obligation. Nor does People v. Watts (1977)
67 Cal.App.3d 173, 179 (Watts), support the People‘s argument. In that case the
trial court made no inquiry or findings regarding a factual basis for the plea, and
the Court of Appeal found the defense counsel‘s statement that he had discussed
the elements of the charges, possible defenses, and potential punishment with the
defendant to be insufficient to satisfy section 1192.5. (Watts, supra, at pp. 180-
181.) To find the error harmless, the Court of Appeal looked instead to the grand
jury transcript to find a factual basis for the plea. (Id. at pp. 181-182.)
Even if defendant did not waive or forfeit his present claim by failing to
raise it below, the People contend, under the doctrine of judicial estoppel he may
not contradict the stipulation counsel made on his behalf when his plea was taken.
We explained in People v. Castillo (2010) 49 Cal.4th 145 that ― ‗ ― ‗[j]udicial
estoppel precludes a party from gaining an advantage by taking one position, and
then seeking a second advantage by taking an incompatible position. [Citations.]
The doctrine‘s dual goals are to maintain the integrity of the judicial system and to
protect parties from opponents‘ unfair strategies. [Citation.] Application of the
doctrine is discretionary.‘ ‖ [Citation.] The doctrine applies when ―(1) the same
party has taken two positions; (2) the positions were taken in judicial or quasi-
judicial administrative proceedings; (3) the party was successful in asserting the
first position (i.e., the tribunal adopted the position or accepted it as true); (4) the
two positions are totally inconsistent; and (5) the first position was not taken as a
result of ignorance, fraud, or mistake.‖ ‘ ‖ (Id. at p. 155, italics omitted.) But, as
defendant contends, it appears the doctrine is inapplicable to him because he is not
seeking to gain an advantage by reneging on a promise relating to the plea bargain,
but merely seeks to remedy a defect in the plea procedure. (See People v. Couch
(1996) 48 Cal.App.4th 1053, 1057-1058.)
We therefore conclude that appellate review of defendant‘s section 1192.5
claim is not procedurally barred, and turn to the effect of the stipulation in this
The People argue that a stipulation to a factual basis for a plea is akin to an
evidentiary stipulation, the making of which is a tactical decision entrusted to trial
counsel, and which is conclusive without reference to additional evidentiary
support. (People v. Adams (1993) 6 Cal.4th 570, 578; Palmer v. City of Long
Beach (1948) 33 Cal.2d 134, 141-142.) In arguing the stipulation here satisfied
the requirements of section 1192.5, the People cite People v. McGuire (1991) 1
Cal.App.4th 281. A majority in that case concluded that the defense counsel‘s
stipulation to a factual basis for the defendant‘s guilty plea, without reference to a
specific document evidencing a factual basis, satisfied the statute. The McGuire
majority relied on language in Watts, supra, 67 Cal.App.3d at page 180, to the
effect that, in making the factual basis determination, a trial court may ― ‗satisfy
itself by statements and admissions made by the defendant, his counsel, and the
prosecutor . . . .‘ ‖ (McGuire, supra, at p. 283.) Defendant, for his part, points to
the dissenting opinion in McGuire, which argued that the general agreement
between the prosecutor and defense counsel that a factual basis for the plea existed
was ―no more helpful in establishing a factual basis than were the statements
which were rejected in Watts and [People v.] Tigner as being statutorily
inadequate. Such a stipulation reveals no more of a factual basis supporting the
plea than the plea itself.‖ (McGuire at p. 286, citing People v. Tigner (1982) 133
Cal.App.3d 430, 433 [trial court made no inquiry of defendant, his counsel, or the
prosecutor, and merely stated on the record, ― ‗There‘s a factual basis for the
plea‘ ‖]; see People v. Willard (2007) 154 Cal.App.4th 1329, 1334-1335 [adopting
the reasoning of the McGuire dissent to hold a bare stipulation inadequate to
establish a factual basis for the defendant‘s guilty plea].)
The People‘s argument is persuasive. 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 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. (See People v. Adams,
supra, 6 Cal.4th at pp. 574, 577-583.) Counsel may also stipulate to the
admissibility of evidence or to narrow the range of litigable issues. (County of
Sacramento v. Workers’ Comp. Appeals Bd. (2000) 77 Cal.App.4th 1114, 1118-
1119; Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473, 476; People v.
Torres (1962) 201 Cal.App.2d 290, 295.) Stipulations obviate the need for proof
and are independently sufficient to resolve the matter at issue in the stipulation.
(County of Sacramento, supra, at pp. 1118-1119.)3
―[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.‖ (Holmes, supra, 32
One notable exception is that ― ‗subject matter jurisdiction cannot be
conferred by consent, waiver, or estoppel.‘ ‖ (In re Stier (2007) 152 Cal.App.4th
63, 76.) That exception does not apply here.
Cal.4th at p. 443.) 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 (see id. at p. 441), 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
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 requirements of section
1192.5, and the trial court acted within its discretion in accepting defendant‘s plea.
The judgment of the Court of Appeal is affirmed.
CANTIL-SAKAUYE, C. J.
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
Before accepting a defendant‘s plea of guilty or no contest to a felony
charge, a trial court must ascertain that there is a factual basis for the plea. (Pen.
Code, § 1192.5.) That requirement, defendant here asserts, was not met and
therefore his conviction should be reversed and the case remanded to the trial
court to decide whether a factual basis exists for the plea.
I concur in the majority‘s holding that defendant‘s claim is cognizable on
appeal and not procedurally barred. I dissent, however, from the majority‘s
conclusion that a trial court can, as here, simply rely on a defense counsel‘s
assurance of a factual basis for the plea, even though counsel mentions no facts or
documentary source from which a factual basis can be ascertained.
Under a plea bargain, defendant David Edward Palmer agreed to plead no
contest to a charge of possession of MDMA (methylenedioxymethamphetamine)
for sale (Health & Saf. Code, § 11378) in exchange for dismissal of a charge of
possession of marijuana for sale (id., § 11359). Defendant gave up his rights to
both a preliminary hearing and a probation report.
At the hearing on the plea, defendant, in response to the prosecutor‘s
questions, said he had discussed with his attorney the elements of the charged
offenses and any defenses, he was satisfied with counsel‘s advice, and he was
entering into the plea knowingly and voluntarily. The prosecutor then asked
defense counsel: ―Do you stipulate, [counsel], there‘s a factual basis for [the] plea
as the People do?‖ Defense counsel answered, ―Yes, I do stipulate.‖ The trial
court accepted the plea and under the terms of the plea agreement granted three
years‘ probation with a jail term of 270 days.
Before accepting a defendant‘s plea of guilty or no contest to a felony
charge, statutory law requires the trial court ―to satisfy itself‖ that ―there is a
factual basis for the plea,‖ and that the plea is freely and voluntarily made. (Pen.
Code, § 1192.5.) At issue here is the factual basis requirement.1
As the American Bar Association (ABA) observed nearly 50 years ago, the
factual basis inquiry advances certain purposes: ―First and foremost, inquiry
ensures that the defendant actually committed a crime at least as serious as the one
to which he is willing to plead. Secondly, investigation into the factual basis of
guilty pleas acts to increase the visibility of charge reduction practices, a common
form of plea agreement. In addition, these inquiries provide a more adequate
record of the conviction process; this record minimizes the chances of a defendant
successfully challenging his conviction later, e.g., see McGrady v. Cunningham,
296 F.2d 600 (4th Cir. 1961), and also aids correctional agencies in the
performance of their functions. Finally, increased knowledge about the
circumstances of the defendant‘s offense provides the court with a better
assessment of defendant‘s competency, his willingness to plead guilty, and his
understanding of the charges against him.‖ (ABA Project on Min. Stds. for Crim.
Although there may be some overlap between these two statutory
requirements in that the factual basis determination may help ensure that the plea
was free and voluntary, the two requirements are largely independent of each
other. A factual basis finding does not necessarily establish the free and voluntary
nature of the plea, nor does a determination that a plea is free and voluntary
necessarily establish a factual basis for the plea.
Justice, Standards Relating to Pleas of Guilty (Approved Draft 1968) com. on
§ 1.6, pp. 32-33; see People v. Holmes (2004) 32 Cal.4th 432, 438, fn. 2 [quoting
More recently, in People v. Hoffard (1995) 10 Cal.4th 1170, this court
observed: ―One of the primary reasons an innocent defendant might plead guilty
is ‗the disparity in punishment between conviction by plea and conviction by
trial.‘ (Barkai, Accuracy Inquiries for All Felony and Misdemeanor Pleas:
Volunteer Pleas But Innocent Defendants? (1977) 126 U. Pa. L.Rev. 88, 97.)
Such a disparity is particularly likely to be a motivating factor for a plea when the
charges expose the defendant to a potentially lengthy term or other severe
punishment, and the prosecution offers substantially reduced punishment in
exchange for a plea of guilty or no contest. The Legislature could rationally have
believed this situation—a negotiated plea—creates an especially high risk the
defendant will plead to a crime he or she did not commit and for which no factual
basis can be established. Section 1192.5, third paragraph [factual basis inquiry], is
designed to protect against that result.‖ (People v. Hoffard, supra, at p. 1182.)
Hoffard pointed to an additional reason: ―making a record against possible
appellate or collateral attacks.‖ (Id. at p. 1183.)
Not one of these important purposes was advanced in this case, in which no
factual basis inquiry was undertaken by the trial court. Neither the prosecution‘s
question to defense counsel (―Do you stipulate, [counsel], there‘s a factual basis
for [the] plea as the People do?‖) nor defense counsel‘s answer (―Yes, I do
stipulate‖) established any facts concerning the felony to which defendant pled no
contest. The majority itself acknowledges that this case ―is devoid of any facts
concerning the offense.‖ (Maj. opn., ante, at p. 5.)
For the majority, it is sufficient that the prosecutor and defense counsel
stipulated that a factual basis existed for the plea. For me, such a stipulation is
insufficient because, as I have explained, it does nothing to achieve the purposes
underlying the factual basis requirement.
The majority unquestioningly accepts the Attorney General‘s argument that
―a stipulation to a factual basis for a plea is akin to an evidentiary stipulation‖
which is within counsel‘s broad authority to enter into. (Maj. opn., ante, at p. 7.) I
reject that argument. A stipulation to the factual basis for a plea of guilty or no
contest, without revealing any facts regarding the circumstances of the alleged
offense or the accused‘s participation in that offense, operates essentially as a
waiver of the factual basis requirement. In a criminal case, a plea of guilty is the
most serious step the accused can take because it ―strips the defendant of such
fundamental protections as the privilege against self-incrimination, the right to a
jury, and the right of confrontation.‖ (People v. Chad (1981) 28 Cal.3d 739, 748;
see People v. Hoffard, supra, 10 Cal.4th at pp. 1177-1178.) Because a plea of
guilty or no contest has these grave consequences, a defendant must enter the plea
personally and not through counsel. (Pen. Code, § 1018; People v. Chad, supra, at
p. 749.) I conclude likewise that counsel may not waive the factual basis
requirement, which protects not only the defendant‘s fundamental rights but the
very integrity of the criminal justice system.
I would reverse the judgment of the Court of Appeal, with directions to
remand this matter to the trial court to decide whether a factual basis exists for
defendant‘s plea of no contest.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Palmer
Unpublished OpinionXXX NP opn. filed 7/2/12 – 6th Dist.
Date Filed: December 5, 2013
County: Santa Clara
Judge: Drew C. Takaichi
Counsel:Jean M. Marinovich, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Laurence K. Sullivan, Stan Helfman, Jeffrey M. Laurence and Alisha M.
Carlile, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Jean M. Marinovich
P.O. Box 2079
Aptos, CA 95001-2079
Alisha M. Carlile
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. The court limited review to the following issues: (1) Is a claim that the trial court failed to establish a factual basis for defendant's plea within the meaning of Penal Code section 1192.5 not cognizable on appeal where defense counsel stipulated to a factual basis for the plea? (2) If the claim is cognizable, did defense counsel's bare stipulation to a factual basis without reference to any document describing the facts sufficiently establish a factual basis?
|Thu, 12/05/2013||58 Cal.4th 110, 313 P.3d 512, 13 Cal. Daily Op. Serv. 13,123, 2013 Daily Journal D.A.R. 15,893||S204409|
|Opinion||Justice Kathryn M. Werdegar|
|Concur||Justice Joyce L. Kennard|
|Dissent||Justice Joyce L. Kennard|
Appellant's Petition for Review filed 8.2.12.pdf (819372 bytes) - Appellant's Petition for Review filed 8-2-12
Appellant's Opening Brief filed 11.27.12.pdf (988617 bytes) - Appellant's Opening Brief filed 11-27-12
Respondant's Answer Brief filed 1.25.13.pdf (1480618 bytes) - Respondant's Answer Brief filed 1-25-13
Appellant's Reply Brief filed 2.14.13.pdf (647534 bytes) - Appellant's Reply Brief filed 2-14-13
|Jun 2, 2014|
Annotated by Tarana Riddick
Defendant, Daniel Edward Palmer, was charged with two counts of violating the California Health and Safety Code. Count 1 was for violating section 11378 (Cal. Health & Saf. Code, § 11378) for possession of methylenedioxymethamphetamine (MDMA) for sale. Count 2 involved violating section 11359 (Cal. Health & Saf. Code, § 11359) for possession of marijuana for sale. Defendant entered a plea of nolo contendere (no contest) in exchange for a dismissal of count 2 and three years probation plus 270 days in county jail for count one. Defendant entered his plea and underwent voir dire by the prosecutor. From the prosecutor’s questioning it was made clear that defendant knowingly and voluntarily entered the plea. After entering his plea, defense counsel stipulated to a factual basis for the plea without referring to any supporting documentation.
Defendant now appeals on the grounds that his counsel’s stipulation did not satisfy California Penal Code section 1192.5 because counsel failed to point to specific documents supporting the factual basis for the plea.
The Superior Court of Santa Clara County, the trial court, accepted defendant Palmer’s plea. The California Court of Appeal for the Sixth District took the appeal and found that the prosecutor’s voir dire and defense counsel’s stipulation in open court in the presence of the defendant revealed no abuse of discretion in the trial court’s acceptance of the defendant’s plea.
2. Does defense counsel’s stipulation to a factual basis without supporting documentation sufficiently establish a factual basis?
1. The claim that the trial court failed to establish a factual basis under section 1192.5 when defense counsel stipulated to a factual basis is cognizable on appeal.
2. Stipulation to a factual basis without supporting documentation may, in certain cases, satisfy section 1192.5 without pointing to supporting documentation. In this specific case, defense counsel’s stipulation without documentation is sufficient.
Majority Opinion – Werdegar, J.
Under California Penal Code section 1237.5 (Cal. Penal Code § 1237.5), for an issue to be cognizable on appeal it must address the legality of the proceedings. Because defendant’s appeal challenges the trial court’s procedure in obtaining facts that ensured that he knowingly and voluntarily entered his plea it goes to the legality of the proceedings. Thus the claim is cognizable on appeal.
As to the second issue, the People argue that because defendant waived his right to a preliminary hearing and probation report; he acknowledged having discussed the charges, available defenses, and potential punishments with his attorney, he was satisfied with his representation; and because he did not challenge the procedure at the trial court level he had waived his right to appeal on the grounds of a lack of factual basis. The Supreme Court of California rejects this argument because it goes against the purpose of the factual basis requirement, which is to ensure that a defendant knowingly and freely enters a guilty plea with adequate knowledge.
The Court also rejected the People’s estoppel argument. The court found that estoppel, which prevents a party from taking one position and then later taking an incompatible position, was not applicable in this case because he did not seek to gain an advantage by making an argument that is incompatible with his plea bargain. He is simply attempting to fix a problem in his plea bargain. Thus estoppel does not apply.
However, defense counsel’s stipulation was sufficient in this case. Section 1192.5 (Cal. Penal Code § 1192.5) requires the trial court to make an inquiry to satisfy itself that a factual basis exists. The factual basis requirement exists to ensure that pleas are made “voluntarily and intelligently”, which can be met by defense counsel’s stipulation. Although it is recommended that that defense counsel reference specific documents when stipulating to a factual basis, it is not required if the entrance of the plea reveals that the defendant has discussed the elements of the crime and the possible defense with their counsel and is satisfied with counsel’s advice. The plea entrance in this case satisfies this standards, thus the Court of Appeal is confirmed.
Concurrence and Dissent – Kennard, J.
Counsel’s stipulation to a factual basis to a plea of guilty or no contest without referencing supporting documentation is the equivalent of a waiver of the factual basis requirement. Since a guilty or no contest plea is the “most serious step” a defendant can take and must be made by the defendant him or herself, it is inappropriate to allow counsel to waive the factual basis requirement on a defendant’s behalf.
Selected Key Cases:
Nolo contendere, no contest, plea, no contest plea, plea colloquy, factual basis, factual basis requirement, stipulation, waiver, Cal. Penal Code § 1192.5, section 1192.5, Cal. Penal Code § 1237.5, section 1237.5, California Penal Code, California Health and Safety Code, Cal. Health & Saf. Code § 11359, Cal. Health & Saf. Code § 11378, MDMA, marijuana, appeal, cognizable issue, criminal law, felony, felony appeal