People v. Berry CA5

California Court of Appeal Jan 8, 2016 No. F069623Unpublished

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Holding. The court held that a trial court may satisfy its statutory duty to establish a factual basis for a no contest plea by accepting defense counsel's written stipulation to that basis, provided the record shows the defendant discussed the elements and defenses with counsel.

Issues

Whether the trial court failed to establish a sufficient factual basis for the defendant's no contest plea.

Disposition. affirmed

Quotations verified verbatim against the opinion

“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”

“we conclude that the court did not abuse its discretion in accepting defense counsel’s written stipulation that there was a factual basis for Berry’s plea.”

Filed 1/8/16 P. v. Berry CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069623 Plaintiff and Respondent, (Super. Ct. No. BF154421C) v.

FRENCHIE BERRY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Poochigian, J. and Detjen, J.

Appellant Frenchie Berry pled no contest to possession for sale of marijuana (count 1/Health & Saf. Code, § 11359), and misdemeanor participating in a criminal street gang (count 2/Pen. Code, § 186.22, subd. (a)). On May 27, 2014, the court sentenced Berry to a two-year local term. On appeal, Berry contends his conviction must be reversed because the court failed to establish a factual basis for his plea. We affirm. FACTS On April 12, 2014, Berry was arrested in this matter. On April 14, 2014, the district attorney filed a complaint charging Berry with possession for sale of marijuana and felony participation in a criminal street gang. The complaint also charged Berry with a gang enhancement in count 1 and it alleged that Berry had a prior conviction within the meaning of the three strikes law. On April 28, 2014, after the prosecutor amended count 2 to a misdemeanor charge of participating in a criminal street gang, Berry entered his no contest plea to that count and to the possession for sale of marijuana count in exchange for the dismissal of the remaining allegations against him. On April 28, 2014, prior to entering his plea, Berry executed a change of plea form. Berry initialed paragraph 5 on the form, which stated:

“I understand the charge(s) against me and the possible pleas and defenses to the charge(s).” He also initialed paragraph 6, which stated:

“I have had enough time to speak with my attorney regarding the strengths of the case against me, any possible defenses that I may have, and the possible consequences of entering this plea.” Berry signed the following acknowledgement at the end of the form:

People v. Berry CA5

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