People v. Ali CA5

Filed 7/7/14 P. v. Ali CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, F067103

v. (Super. Ct. No. F12907764)

HUSSEIN KIETTY ALI, OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jon N. Kapetan, Judge. Robert L.S. Angres, 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, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Cornell, Acting P.J., Poochigian, J., and Franson, J.

Defendant Hussein Kietty Ali pled guilty to battery by a prisoner on a non- confined person (Pen. Code, § 4501.5)1 and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). On appeal, he contends the trial court failed to include in the record a document in support of its finding of a sufficient factual basis in support of defendant’s guilty plea. The People concede that we must remand for inclusion of the document in the record. In light of a recent Supreme Court decision, however, we conclude remand is not required. DISCUSSION I. Law In People v. Palmer (2013) 58 Cal.4th 110 (Palmer), a recent case filed after both parties submitted their briefs in this case, the Supreme Court explained:

“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 1192.5 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 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