P. v. Holmes

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Filed 11/8/01
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH DISTRICT
DIVISION TWO
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
HENRY JAMES HOLMES,
Defendant and Appellant.
E027589
(Super.Ct.No. RIF091270)
OPINION
APPEAL from the Superior Court of Riverside County. Becky L. Dugan, Judge.
Affirmed.
James R. Mc Grath, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Laura Whitcomb Halgren
and Robert M. Foster, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.

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Defendant pleaded guilty to assault with the intent to commit rape (Pen. Code, §
2201) in exchange for a term of two years in state prison and dismissal of the remaining
count. Defendant then waived referral to probation and was immediately sentenced to the
agreed-upon term. On appeal, defendant contends (1) he must be allowed to withdraw
his guilty plea because the trial court failed to establish a sufficient factual basis for the
plea as required by section 1192.5, and (2) he must be permitted to withdraw his plea
because he was misadvised by his counsel concerning the credits he would receive in
state prison. We reject defendant’s contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
There was no preliminary hearing, and a probation report was waived, so the
factual circumstances against defendant were never established in court.
In a felony complaint filed by the Riverside County District Attorney’s office on
April 18, 2000, defendant was charged with assault with the intent to commit rape (§ 220)
(count 1) and sexual battery (§ 243.4, subd. (d)) (count 2).
On June 1, 2000, defendant pleaded guilty to count 1 in exchange for a term of
two years in state prison and dismissal of count 2.2 Thereafter, defendant waived his
1 All future statutory references are to the Penal Code unless otherwise
stated.
2 The record also shows that, as part of the plea agreement, defendant also
pleaded guilty to two infraction charges (operating a taxi without a license and failure to
appear in court) arising from two unrelated cases (Case Nos. 395370 and 263971,
respectively).

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right to a presentence probation report and wished to immediately be sentenced.
Defendant was sentenced to the agreed-upon term of two years.
On June 15, 2000, defendant wrote a letter to the trial court requesting to withdraw
his plea based on his counsel’s misadvisement concerning credit for time served. On July
24, 2000, defendant’s counsel, Donna Johnson, declared a conflict of interest and asked
to be relieved as counsel for defendant. The trial court relieved Johnson and appointed
special counsel, A. Sandquist, for purposes of the motion to withdraw the plea. At that
time, the trial court also set August 14, 2000, as the hearing date for the motion to
withdraw the guilty plea.
On August 14, 2000, Sandquist withdrew defendant’s motion to withdraw the plea
because, as Sandquist acknowledged, the trial court lost its jurisdiction to address the
motion since defendant had already been sentenced, pursuant to Cano v. Superior Court
(1999) 72 Cal.App.4th 1310, 1315-1316 and section 1018.
On July 17, 2000, defendant filed his notice of appeal and request for certificate of
probable cause. On July 28, 2000, defendant filed his amended notice of appeal; on that
same day, defendant’s request for a certificate of probable cause was granted.
II
DISCUSSION
A. Factual Basis For Plea
Defendant contends the trial court failed to establish a sufficient factual basis for
his conditional guilty plea and performed no independent inquiry as required by section
1192.5; therefore, the guilty plea must be vacated.

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Section 1192.5 requires the trial court, before accepting a conditional plea of
guilty to a felony, to satisfy itself that a factual basis for the plea exists.3 (People v.
Hoffard (1995) 10 Cal.4th 1170, 1181.) The purpose of the factual-basis requirement is
to prevent a defendant, ignorant of legal niceties and distinctions, from failing to realize
that his acts do not constitute the crime with which he is charged. (People v. Watts
(1977) 67 Cal.App.3d 173, 178.) For this reason, the trial court is required to satisfy
itself independently that there is some reasonable cause to believe that defendant
committed the crime. (Id., at p. 180.) However, the law “does not require the trial court
to interrogate a defendant personally in an element by element manner about the factual
basis for his guilty plea. . . . He may, in fact, enter a plea of guilty even though he
protests his innocence. [Citation.]” (Ibid.) “‘[T]he court may satisfy itself by statements
and admissions made by the defendant, his counsel, and the prosecutor . . .’” (ibid.), as
well as a preliminary hearing transcript, grand jury transcript, or presentence probation
report. (See also People v. McGuire (1991) 1 Cal.App.4th 281, 283; People v. Calderon
(1991) 232 Cal.App.3d 930, 935; People v. Tigner (1982) 133 Cal.App.3d 430, 434.)
We agree that the court had an investigative duty under section 1192.5 but find the
duty was fulfilled by the court’s inquiry of defendant. (See, e.g., People v. Calderon,
supra, 232 Cal.App.3d at p. 935 [court’s inquiry of the defendant at plea hearing of
whether he tried to kill the victim and the defendant’s statement that he did constituted an
3 Section 1192.5 provides, in pertinent part, that, upon a plea of guilty which
is a part of a plea bargain, the “court shall also cause an inquiry to be made of the
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adequate factual basis for attempted murder]; People v. McGuire, supra, 1 Cal.App.4th at
p. 283 [mere stipulation by the parties constitutes a sufficient factual basis]; but see
People v. Tigner, supra, 133 Cal.App.3d at p. 435 [reviewing court held that a “mere
recitation by the court concluding ‘There’s a factual basis’ without developing the factual
basis on the record is not sufficient to meet the requirements of Penal Code section
1192.5” and that the presentence report was insufficient to render the error harmless].) In
the present matter, since there was no preliminary hearing transcript, grand jury
transcript, or presentence probation report at the time of the entry of the guilty plea, the
court inquired of defendant regarding the voluntariness and the factual basis of the plea.
Defendant informed the court that he had committed the acts alleged in count 1 of the
complaint. Further, defendant specifically stated in his change of plea form that there
was a factual basis for his plea. This should be sufficient to satisfy the requirements of
section 1192.5.
B. Ineffective Assistance of Counsel
Defendant next contends that he must be permitted to withdraw his plea because
he was misadvised by his counsel concerning the credits he would receive while in state
prison. We find this issue is not properly before this court because the trial court never
heard defendant’s motion to withdraw his guilty plea.
As defendant concedes, his counsel, Sandquist, withdrew the motion pursuant to
section 1018 because the trial court lost jurisdiction to address the motion, since
[footnote continued from previous page]
defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a
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defendant had already commenced serving his sentence. Further, Sandquist never
requested that the motion be construed as a motion to vacate or filed petitions in the
nature of coram nobis or habeas corpus. Therefore, this issue is not properly before this
court.
Even if it were, it is not possible to assess defendant’s claim on an appellate record
which does not reflect the reasons for the actions which defendant now claims fell below
constitutional standards of competence. (People v. Mendoza Tello (1997) 15 Cal.4th 264,
266-267; People v. Wilson (1992) 3 Cal.4th 926, 936.) To demonstrate that he received
ineffective assistance of counsel, defendant must establish both: (1) that his counsel’s
performance was deficient under an objective standard of professional competency; and
(2) that there is a reasonable probability that but for counsel’s errors, a more favorable
determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703; People
v. Williams (1997) 16 Cal.4th 153, 214-215; In re Avena (1996) 12 Cal.4th 694, 721;
People v. Davis (1995) 10 Cal.4th 463, 503; People v. Babbitt (1988) 45 Cal.3d 660, 707;
Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “We have repeatedly stressed
‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,” the claim on
appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is
[footnote continued from previous page]
factual basis for the plea.” (Italics added.)

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more appropriately decided in a habeas corpus proceeding. [Citations.]”4 (People v.
Mendoza Tello, supra, 15 Cal.4th at pp. 266-267, quoting People v. Wilson, supra, 3
Cal.4th at p. 936, quoting People v. Pope (1979) 23 Cal.3d 412, 426.) Therefore, the
decision must be affirmed on appeal.
4 We note that, although “[i]n California the appellate courts as well as the
superior courts exercise original habeas corpus jurisdiction[,]” “appellate courts are not
equipped to have prisoners brought before them and to conduct testimonial hearings on
disputed issues of fact.” (In re Hochberg (1970) 2 Cal.3d 870, 873-874, fn. 2, rejected
on another ground in In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3.) Therefore, if
defendant files a petition for writ of habeas corpus, we recommend that he file it in the
superior court.

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III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
RICHLI
J.
We concur:
RAMIREZ
P.J.
McKINSTER
J.

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