A plea is involuntary and invalid under the Fifth and Sixth Amendments to the U.S. Constitution and Federal Rule of Criminal Procedure 11(f) if the court taking the plea does not establish a sufficient factual basis for the plea.[332]

 

            In order to comply with F.R.Crim.P. 11(f), the record must establish that the judge is satisfied there is a factual basis for the plea.[333]  This requirement is part of the voluntariness determination required for the taking of a plea of guilty.[334]  When a defendant denies guilt, the court must make a more searching inquiry and the record must reveal a strong factual basis for a finding of guilty, before the plea is valid.[335]  If the defendant’s admissions during the plea colloquy, coupled with the prosecution’s offer of proof, do not cover all of the essential elements of the offense, the plea is arguably invalid on this ground.

 

            While Rule 11 violations are subject to a harmless error analysis, it should be argued that the failure to ensure a factual basis for the plea is more than “a minor or technical violation of Rule 11,” and therefore, the harmless error provision of Rule 11(h) should not be applied.[336]

 

                        In California, Penal Code § 1192.5 requires that the court satisfy itself that a factual basis exists before accepting a guilty plea in a felony case.[337]  Failure to establish a factual basis for a felony plea, either by questioning the defendant or by identifying a specific document (e.g., a police report) as providing it, will be considered reversible error.[338]  It is also possible to vacate a plea where the facts contained in the factual basis are insufficient to establish every element of the offense.[339]

 

                        The California Supreme Court has described the procedure trial courts must follow to establish a factual basis:

 

            [T]he trial court must garner information regarding the factual basis either from the defendant or defense counsel.  If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge, or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement.  If the trial court inquires of defense counsel regarding the factual basis, counsel may 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.[340]

 

Thus, to establish a factual basis, the court must ensure that the facts underlying the conviction are described, either by the defendant or in a particular document, with specificity. 

 

The Court of Appeal in People v. Willard later went on to clarify that “a bare stipulation by counsel with no reference to documents containing factual support does not meet the standard of Penal Code § 1192.5.  Nor can a reference to documents which do not exist within the record meet the standard of section 1192.5.”[341]  A generalized stipulation that a factual basis exists is thus plainly insufficient to satisfy the Penal Code § 1192.5 requirement.

 

There is no factual basis requirement for misdemeanors.

[332] McCarthy v. United States, 394 U.S. 459, 466 (1960); see Wallace v. Turner, 695 F.2d 545 (11th Cir. 1983); Boykin v. Alabama, supra at 242; F.R.Crim.P. 11(f); United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984); see McCarthy v. United States, supra, at 466; United States v. Zuber, 528 F.2d 981 (9th Cir. 1976) (record failed to establish factual basis for charge of conspiracy to violate statute concerning interstate transportation of stolen goods); United States v. Kamer, 781 F.2d 1380, 1386 (9th Cir.), cert. denied, 479 U.S. 819 (1986) (Rule 11(f) violation found where an element of the offense was not inferable from the record).

[333] Santobello v. New York, 404 U.S. 257, 261 (1971); United States v. Landry, 463 F.2d 253 (9th Cir. 1972).

[334] McCarthy v. United States, supra, at 464-467; but see Higgason v. Clark, 984 F.2d 203, 208 (7th Cir.), cert. denied, 113 S. Ct. 2974 (1993) (the requirement that a sentencing court must satisfy itself that a sufficient factual basis supports the guilty plea is not a requirement of the Constitution, but rather a requirement created by rules and statutes).

[335] United States v. Avery, 15 F.3d 816 (9th Cir. 1993), citing North Carolina v. Alford, 400 U.S. 25 (1970); see Banks v. McGougan, 717 F.2d 186, 188 (5th Cir. 1983), citing Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979); Wallace v. Turner, 695 F.2d 545, 548 (11th Cir. 1983).

[336] United States v. Dawson, 193 F.2d 1107 (9th Cir. 1999)(dissenting opinion).

[337] For a discussion of the legal sufficiency of a factual basis for a felony plea, see People v. Wilkerson (1992) 6 Cal.App.3d 1571, 8 Cal.Rptr.2d 392.

[338] People v. Holmes (2002) 32 Cal.4th 432; People v. Willard (2007) 154 Cal.App.4th 1329, 65 Cal.Rptr.3d 488.  See § 8.39, infra.

[339] People v. Willard (2007) 154 Cal.App.4th 1329, 65 Cal.Rptr.3d 488 (vacating plea of no contest to one count of committing lewd and lascivious acts on a child under the age of 14, despite trial counsel's generalized stipulation to a factual basis for the plea, because the factual basis was insufficient to sustain the plea).

[340] People v. Holmes (2002) 32 Cal.4th 432.

[341] People v. Willard (2007) 154 Cal.App.4th 1329, 1334-1335.

GROUNDS " INSUFFICIENT EVIDENCE -- FELONY ASSAULT WITH DANGEROUS WEAPON REDUCED TO MISDEMEANOR SIMPLE ASSAULT
In re Brandon T (Cal. App. 2d, Jan. 24, 2011) No. B220588, 2011 WL 198664 (reversing conviction for assault with a deadly weapon, in violation of Penal Code 245(a)(1), where there was insufficient evidence that minor committed the crime because he did not use the butter knife in a manner capable of producing and likely to produce death or great bodily injury; and reducing the conviction to simple assault, a misdemeanor offense).

GROUNDS " INSUFFICIENT EVIDENCE " PROSECUTIONS OVERREACHING
United States v. Goyal, (9th Cir. Dec. 10, 2010) ___ F.3d ___, 2010 WL 5028896 (Hon. Alex Kozinski, concurring) (This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant's personal and professional life. The defendant's former employer also paid a price, footing a multimillion dollar bill for the defense. And, in the end, the government couldn't prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds.), citing Arthur Andersen LLP v. United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir .2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C.Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. 1001 creates risk of prosecutorial abuse). Justice Kozinski stated: This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction-including disenfranchisement, incarceration and even deportation-but also because criminal law represents the community's sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) ([C]riminal punishment usually represents the moral condemnation of the community ....); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir.1970) ([T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community....). When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted. Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn't commit. But not everyone is so lucky. The government shouldn't have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction. Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal. And, perhaps, that the government will be more cautious in the future.) (Id. at ___.)

GROUNDS " FACTUAL BASIS CRIM DEF " PLEADING GUILTY
There are two types of guilty or no contest pleas in California: (1) a conditional plea, where the plea is conditioned upon receipt of a particular disposition; and (2) an unconditional or open plea. (People v. Hoffard (1995) 10 Cal.4th 1170, 1181) When taking a conditional plea of guilty or nolo contendere (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. No factual basis is required on an open plea to a felony count or any misdemeanor. Thanks to Michael C. McMahon.

Ninth Circuit

GROUNDS " INSUFFICIENCY OF EVIDENCE " EVIDENCE INSUFFICIENT TO ESTABLISH JURISDICTIONAL AND INTENT ELEMENTS
United States v. Flyer, ___ F.3d ___ (9th Cir. Feb. 8, 2011)(reversing federal conviction of violating 18 U.S.C. 2252 (2004), attempted transportation, shipping, and possession of child pornography, where evidence was insufficient to establish the jurisdictional and intent elements).

GROUNDS " INSUFFICIENCY OF EVIDENCE " EVIDENCE INSUFFICIENT TO ESTABLISH JURISDICTIONAL AND INTENT ELEMENTS
United States v. Flyer, 633 F.3d 911 (9th Cir. Feb. 8, 2011)(reversing federal conviction of violating 18 U.S.C. 2252 (2004), attempted transportation, shipping, and possession of child pornography, where evidence was insufficient to establish the jurisdictional and intent elements).

GROUNDS " INSUFFICIENT EVIDENCE
United States v. Goyal (9th Cir. Dec. 10, 2010) ___ F.3d ___, 2010 WL 5028896 (reversing conviction for concealing allegedly improper accounting from outside auditors and for filing reports with the SEC allegedly misstated revenue, because no jury could have found defendant guilty beyond a reasonable doubt based on the evidence presented at trial, since there was no evidence that the effect of using the accounting methods here was so substantial that it made a material difference in reported revenue and no evidence as required for conviction under 15 U.S.C. 78ff(a), which requires willful and knowing deception, that defendant knew his company's subsidiary violated accepted accounting principles).

GROUNDS " INSUFFICIENT EVIDENCE
United States v. Goyal (9th Cir. Dec. 10, 2010) 629 F.3d 912, 2010 WL 5028896 (reversing conviction for concealing allegedly improper accounting from outside auditors and for filing reports with the SEC allegedly misstated revenue, because no jury could have found defendant guilty beyond a reasonable doubt based on the evidence presented at trial, since there was no evidence that the effect of using the accounting methods here was so substantial that it made a material difference in reported revenue and no evidence as required for conviction under 15 U.S.C. 78ff(a), which requires willful and knowing deception, that defendant knew his company's subsidiary violated accepted accounting principles).

GROUNDS " INSUFFICIENT EVIDENCE " PROSECUTIONS OVERREACHING
United States v. Goyal, (9th Cir. Dec. 10, 2010) 629 F.3d 912, 2010 WL 5028896 (Hon. Alex Kozinski, concurring) (This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant's personal and professional life. The defendant's former employer also paid a price, footing a multimillion dollar bill for the defense. And, in the end, the government couldn't prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds.), citing Arthur Andersen LLP v. United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir .2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C.Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. 1001 creates risk of prosecutorial abuse). Justice Kozinski stated: This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction-including disenfranchisement, incarceration and even deportation-but also because criminal law represents the community's sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) ([C]riminal punishment usually represents the moral condemnation of the community ....); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir.1970) ([T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community....). When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted. Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn't commit. But not everyone is so lucky. The government shouldn't have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction. Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal. And, perhaps, that the government will be more cautious in the future.) (Id. at ___.)

Other

CAL CRIM DEF " NATURE OF CONVICTION " RECORD OF CONVICTION "FACTUAL BASIS STIPULATION " PRACTICE ADVISORY
In People v. Palmer, the California Supreme Court held that as part of a defendants change of plea, there is no invariable requirement that the defense stipulate to any specific document in order to establish a factual basis for the plea. It seems clear, under People v. Palmer (2013) 58 Cal.4th 110, 164 Cal.Rptr.3d 841, that the trial court is not required to collect such a stipulation 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 counsels advice. (Ibid. at ___.) To protect the defendant against adverse immigration consequences, criminal defense counsel should make every attempt not to stipulate to any particular document as the factual basis for the plea. Some prosecutors may insist upon a specific factual basis as part of a plea bargain. Some judges may simply hew to their personal practice of requiring a stipulation by reference to a specific document. Palmer does not actually hold that a defendant is entitled to refuse stipulation to a specific record document, but a defendant can never be compelled to enter a stipulation. It simply holds that a plea is permissible even without a stipulation to a particular document. From the clients standpoint, there will rarely ever be a situation where it is in a clients immigration interest to augment his or her change of plea with additional facts. Defense counsel if possible should adhere to the following guidelines: Defense counsel should attempt to enter a general stipulation that some factual basis exists, without reference to any specific document. This approach is approved in Palmer, if the Palmer requirements are met. There is no requirement of a factual basis of any kind for a plea to a misdemeanor offense. People v. Ballard (1978) 84 Cal.App.3d 885. If the court insists on a stipulation by reference to a specific document, defense counsel should stipulate that the court may find a factual basis in the specific document without agreeing that anything in that document is true. People v. French (2008) 43 Cal.4th 36, 50-51; People v. Thoma (2007) 150 Cal.App.4th 1096, 1104.) In French, the court stated: Furthermore, nothing in the record indicates that defendant, either personally or through his counsel, admitted the truth of the facts as recited by the prosecutor. Defense counsel stated that she had discussed the facts of the case at length with defendant and that she had allowed defendant to view a portion of the tapes of interviews of the victims, which had been provided to the defense in discovery. As noted earlier, when asked by the trial court whether she believed there was a sufficient factual basis for the no contest pleas, defense counsel stated, "I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis, and that's what they'll testify to." Indeed, counsel was careful to state that she agreed that witnesses would testify to the facts as recited by the prosecutor; she did not stipulate that the prosecutor's statements were correct. Under the circumstances of this case, defense counsel's stipulation to the factual basis cannot reasonably be construed as an admission by the defendant sufficient to satisfy the Sixth Amendment requirements established in Cunningham, supra, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856. (People v. French, supra, 43 Cal.4th at 50-51.) If it is necessary to refer to a specific document, be selective, choose a document that merely recites the basic essential elements of the charged offense and no more. This may be true, for example, of the charging document. Or counsel can consider stipulating to only certain portions of a record document. Finally, California law allows the defendant to make an oral or written admission to establish a factual basis for a plea. People v. Holmes (2002) 32 Cal.4th 432. Counsel can control the contents of the defendants admission, by stating it for him, and then asking, Isnt that correct? Counsels wording of the defendants admission can then add detailed facts that do not damage the defendants immigration position, such as the date and place of the offense, the time of day, or the nature of the car the defendant was driving, and complete the admission with a statement of the elements of the offense that is insufficient to cause the conviction to come within a ground of deportation or trigger any other immigration consequence. For example, counsel can say, Mr. Defendant, isnt it true that on March 4, 2014, at the corner of Hollywood and Vine, Los Angeles, California, within the County of Los Angeles, while driving a blue Camaro, you did possess a controlled substance prohibited under Health and Safety Code 11377(a)? This would be sufficient to constitute a factual basis for a possession offense, but does not identify the particular controlled substance involved, except that it is on the California schedule. This preserves the argument that the conviction does not trigger deportation, because the particular substance might be on the state but not the federal list. See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965). Defense counsel can also personally stipulate that he or she has conducted an investigation into the facts of the case, and personally believes that a factual basis exists, and on that basis, enters a stipulation that a factual basis exists, without identifying a specific document or eliciting an admission from the defendant. The basis is technically then counsel's review and not what is contained in the documents themselves. Entering a plea under People v. West (1970) 3 Cal.3d 595, also aids the defense in refusing to admit the truth of any factual basis, since the defendant is explicitly declining to admit guilt of the charge to which a plea is entered.

GROUNDS " INSUFFICIENT EVIDENCE -- FELONY ASSAULT WITH DANGEROUS WEAPON REDUCED TO MISDEMEANOR SIMPLE ASSAULT
In re Brandon T (Cal. App. 2d, Jan. 24, 2011) No. B220588, 2011 WL 198664 (reversing conviction for assault with a deadly weapon, in violation of Penal Code 245(a)(1), where there was insufficient evidence that minor committed the crime because he did not use the butter knife in a manner capable of producing and likely to produce death or great bodily injury; and reducing the conviction to simple assault, a misdemeanor offense).

GROUNDS " FACTUAL BASIS CRIM DEF " PLEADING GUILTY
There are two types of guilty or no contest pleas in California: (1) a conditional plea, where the plea is conditioned upon receipt of a particular disposition; and (2) an unconditional or open plea. (People v. Hoffard (1995) 10 Cal.4th 1170, 1181) When taking a conditional plea of guilty or nolo contendere (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. No factual basis is required on an open plea to a felony count or any misdemeanor. Thanks to Michael C. McMahon.

CAL POST CON"PRACTICE ADVISORY"VALIDITY OF PLEA"GROUNDS"FACTUAL BASIS"NO REQUIREMENT THAT FACTUAL BASIS MUST BE WRITTEN
Penal Code 1192.5 does not require that the factual basis for a plea be in writing: In sum, we conclude that the trial court must garner information regarding the factual basis either from the defendant or defense counsel. If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge (Watts, supra, 67 Cal. App. 3d at p. 179), or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. (Montoya-Camacho, supra, 644 F.2d at p. 487.) If the trial court inquires of defense counsel regarding the factual basis, counsel may 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. People v. Holmes, 32 Cal. 4th 432, 442 (Cal. 2004) The statute requires the inquiry to be made of defendant ( 1192.5), but we conclude that stipulation by counsel to the pleas 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 (Tigner, supra, 133 Cal. App. 3d at p. 433), defense counsel is well suited to make such a determination. Nearly all California authority takes a similar stance. (See Watts, supra, 67 Cal. App. 3d at p. 180 [It should be emphasized that the California Penal Code does not require the trial court to interrogate a defendant personally . It is also clear that the court need not obtain general information about the crime directly from the defendant in order to establish the factual basis for the plea]; Wilkerson, supra, 6 Cal.App.4th at p. 1576 [The trial court should ask the accused to describe the conduct that gave rise to the charge or elicit information from either counsel (italics added)].) People v. Holmes, 32 Cal. 4th 432, 442, n.5 (2004). The court also stated: We also approve of, though do not require in California, the practice in other courts of including a detailed and signed factual basis account as an attachment to the plea agreement. (United States v. Spruill (5th Cir. 2002) 292 F.3d 207, 211; United States v. Deluca 203 F.3d 823 (4th Cir. 1999) (unpublished table decision), [2001 WL 1291, p. *2]; State v. Harper (1993) 177 Ariz. 444 [868 P.2d 1027, 1028, fn. 1]; State v. Thompson (1986) 150 Ariz. 554 [724 P.2d 1223, 1227].) Questioning of the defendant by the trial court regarding such attachment to the plea agreement generally will be sufficient to meet the section 1192.5 standard. (People v. Holmes, 32 Cal. 4th 432, 441-442 (2004).) The factual basis requirement, pursuant to Penal Code 1192.5, only applies to felonies, not misdemeanors: As long as defendant's constitutional rights are respected in a criminal proceeding, the convenience of the parties and the court should be given considerable weight. Thus, the Legislature's action in enacting Pen C 1192.5, which does not require a factual basis determination for guilty pleas of misdemeanor defendants, does not violate equal protection standards, and a defendant charged with violating former Veh C 23102(a) (See now Veh C 23152(a)), driving under the influence of intoxicating liquor, was not entitled to have a prior conviction for the same offense stricken on the grounds that the trial court had failed to ascertain whether there was a factual basis for his guilty plea. The record showed that the trial court had explained the nature of the charge and the date and place at which the violation had occurred to defendant and defendant's response to questions from the court indicated that he understood the nature of the charge. Ballard v. Municipal Court (1978, Cal App 1st Dist) 84 Cal App 3d 885, 149 Cal Rptr 82, 1978 Cal App LEXIS 1930. Thanks to Graciela Martinez.