Tooby's California Post-Conviction Relief for Immigrants

 

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.