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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Larry R. GONZALES, Defendant and Appellant.

Cr. 4806.

Decided: June 17, 1982

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Roy M. Dahlberg, Deputy State Public Defender, Sacramento, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and Jana L. Tuton, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


Appellant raises two contentions.   First, he contends that the trial court erred by failing to accept his guilty pleas thereby foreclosing consummation of a plea bargain already agreed to by the parties.   Second, he contends that there was instructional error.   Appellant's contentions are meritless.

A five-count information was filed in this case charging appellant in count I with violation of Penal Code section 211 (robbery).   Counts II and III also charged violations of Penal Code section 211 (robbery) and contained arming allegations pursuant to Penal Code section 12022, subdivision (a).   Count IV charged violation of Penal Code section 4532, subdivision (b) (escape), and count V charged violation of Penal Code section 1319.4 (failure to appear).1  The information also alleged three priors.   Prior to trial, the People's motion to dismiss count II was granted.   On the morning set for the commencement of trial, the court, on its own motion, amended the information so that counts III, IV and V would be numbered as counts II, III and IV.

Insofar as is relevant here, the facts of the robbery alleged in count II of the amended information are as follows.   The robbery took place at DiCicco's Restaurant.   Appellant and an acquaintance ordered a pizza and waited by the cash register as it was being cooked.   After they had waited a time, the acquaintance approached the cashier with a gun for obvious reasons.   At this point, appellant was engaged in conversation with another employee.   Upon receipt of the cash, appellant and his companion quickly departed.   At trial appellant testified that he knew nothing about the robbery until he saw his companion flee the restaurant.

On the morning set for the commencement of trial, the parties appeared and informed the court that a negotiated plea had been arranged.   Pursuant to this agreement, appellant was to plead guilty to the robbery at DiCicco's Restaurant and to the escape from lawful custody in exchange for the dismissal of the two other charges against him.   The court expressed no disagreement with this arrangement and proceeded to inquire of appellant whether he understood the nature of the charges to which he was pleading and whether he understood the nature of the constitutional rights which he was waiving.   Appellant then entered his pleas of guilty.   At that point, the court sought to determine if there was a factual basis for appellant's guilty plea to the robbery.

“THE COURT:  All right.   As to Count Three, the robbery of Mary Eldridge on June 16th, 1979, just what did you do, Mr. Gonzales, that you feel is a violation of Penal Code Section 211 on that date?

“THE DEFENDANT:  I just went along with a guy who told me to do the robbery with him, not realizing—just being with him.   I'm just as guilty.   I didn't know that.

“THE COURT:  What did you do with this person?

“THE DEFENDANT:  Nothing.   He just told me go in the place and just stand there by him.   That's what I did.

“THE COURT:  And he told you when he went in he was going to commit a robbery?

“THE DEFENDANT:  At first, I—first I didn't know until after—after he did it and ran out.   Then I knew something had happened, so I ran after.   We both went in together, ordered a pizza, thinking that—that's all he was going—you know, we was going to get the pizza.   I was talking to that other girl, and he was talking to one girl, and we are about a distance from here to there (indicating) like that from each other.   I didn't—I didn't really notice what was happening then.

“I seen him, and then, I seen what he was doing, and I seen him run out, and I automatically ran out, too, behind him.

“THE COURT:  But you said a minute ago that he had told you that he wanted you to do a robbery with him.   Did that happen?

“THE DEFENDANT:  No, that was not on the one right there.   That other thing, that bank thing.

“THE COURT:  Which one is that?

“MR. ZAVALA:  Count One, Your Honor.

“THE COURT:  Doesn't appear to me to be an adequate basis for the robbery.

“MR. ROBINSON:  One hasn't been stated so far, Your Honor.   Perhaps the Court could ask the Defendant if he intentionally distracted one of the employees of DiCicco's on June 16th when the robbery occurred, knowing that this other person was committing the robbery.

“THE COURT:  There is a suggestion that during the course of the robbery, you helped this person in the robbery itself.   Did you do that?

“THE DEFENDANT:  I didn't help.   I just stood right there beside him.

“THE COURT:  I will ask the question, Mr. Robinson suggests.

“Did you distract one of the employees to help your friend complete the robbery?

“THE DEFENDANT:  I was talking to her while we were waiting for the pizza.

“THE COURT:  Did that have anything to do with the robbery?

“THE DEFENDANT:  No.   Just talking to her.

“THE COURT:  Mr. Zavala, it does not appear to me it is an admission of a robbery.   Mr. Gonzales says he knew nothing whatsoever about the robbery when he entered.

“THE DEFENDANT:  But I'm guilty knowing after he did it, you know.   I know—I know that after he did it.   After it happened, you know, but I know now, you know, but I didn't know when we went inside the place.

“THE COURT:  That may make you guilty of a different crime, but not guilty of a robbery.

“While you were there, you said you did nothing whatsoever to help him?

“THE DEFENDANT:  I just went in there.   I didn't know he was going to rob.   I never did.   I don't have nothing—I have never been arrested for none of them types of things.

“THE COURT:  It is not a good enough factual basis, Mr. Robinson.

“MR. ROBINSON:  I agree with the Court.   Perhaps I can discuss the matter with Mr. Zavala.

“THE COURT:  Very well.   We will take a short recess.   See if there is some other way we can work it out, gentlemen, but I cannot accept the plea.

(Thereupon a short recess is taken.)

“THE COURT:  Mr. Gonzales, as I indicated before, I do not—I cannot accept a plea of guilty to a crime that you were telling me you did not commit.   Mr. Robinson, I believe, stated on the record that he agrees that the statement you made would not be a factual basis for accepting the plea.

“Mr. Zavala, I'll give you a chance to be heard on that if you believe the factual basis stated would have been sufficient for accepting the plea.

“MR. ZAVALA:  Submitted, Your Honor.

“THE COURT:  The—as I understand it, Counsel have not been able to work out any kind of an alternative plea that would be acceptable to both sides.   This matter will, therefore, go to trial on all counts as charged.”

As is apparent, the court refused to accept appellant's guilty plea pursuant to its statutory duty under Penal Code section 1192.5 to find a factual basis for the plea.2  Appellant then stood trial on all four counts and was convicted on each count.


Appellant contends that the court erred in refusing to accept his plea.   He seeks the remedy of reversal and remand so that he may reenter his guilty pleas consistent with the plea bargain and be sentenced in accordance with those pleas.

The issue presented in this case is an important one in that it concerns the scope of the trial court's duty to inquire into the factual basis for a guilty plea.   As is manifest, the trial court has a mandatory duty to make an inquiry since Penal Code section 1192.5 uses the language, “shall also cause an inquiry to be made ․”   However, in this case, we are concerned with the extent of that inquiry where, as here, the defendant seeks to plead guilty but simultaneously maintains his innocence.

 Initially, we note that appellant was clearly within his rights in pleading guilty while simultaneously maintaining his innocence.   A defendant may enter a plea of guilty despite continued protestations of innocence.  (People v. Watts (1977) 67 Cal.App.3d 173, 180, 136 Cal.Rptr. 496.)   As was held in the seminal case of North Carolina v. Alford (1970) 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, “[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”  (Id., at p. 37, 91 S.Ct. at p. 167.)   The defendant does not have an absolute right to plead guilty, but neither may the trial court summarily deny the right.  (Id., at p. 38, fn. 11, 91 S.Ct. at p. 168, fn. 11.)

We now turn to our analysis of the factual basis requirement of Penal Code section 1192.5.   We find only one case in California explaining the purpose for the factual basis requirement (People v. Watts, supra, 67 Cal.App.3d 173, 136 Cal.Rptr. 496).   Watts entered into a plea bargain with the district attorney, consented to by the court, resulting in his plea to second degree murder.   Watts moved to withdraw his guilty plea, alleging that the trial court failed to make an on-the-record inquiry as to the factual basis for his plea pursuant to Penal Code section 1192.5.   The appellate court agreed that the record was inadequate but held that this was not reversible error, since the grand jury transcript which was before the trial court contained more than ample evidence to justify the plea.  (Id., at pp. 181–182, 136 Cal.Rptr. 496.)   The Watts court found the factual basis requirement was designed 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.  [Citation.]   Inquiry into the factual basis for the plea ensures that the defendant actually committed a crime at least as serious as the one to which he is willing to plead.”  (Id., at p. 178, 136 Cal.Rptr. 496.)

 Thus, the purpose of the factual basis requirement is to protect the uninformed defendant who is not aware that he has in fact not committed a criminal act.   We note that this is the identical purpose of rule 11(f) of the Federal Rules of Criminal Procedure.3  The purpose of the factual basis requirement of rule 11(f) is to “․ protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.”  (McCarthy v. United States (1969) 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, fn. omitted, quoting Fed.Rules Crim.Proc., rule 11, Notes of Advisory Com. on Crim.Rules.)

 Appellant contends that the trial court erred in failing to find a factual basis in this case.   It is his view that had the trial court examined the preliminary hearing transcript, it would have found abundant evidence of his guilt.   Thus, appellant would require the trial court to make an independent inquiry into the facts beyond a dialogue with the defendant where the defendant maintains his innocence.   We do not imply such a requirement into section 1192.5.

 We have found no authority which requires a trial judge to conduct an independent review of the record for the purpose of ascertaining a sufficient factual basis for the entry of a guilty plea where one has not been brought forward by the parties.   We do not believe the law requires the court to do so.   To the contrary,

“Every court has inherent power to prevent abuse of its process and to conform its procedures to the fundamentals of due process.   The continued acceptance by the court of a guilty plea in the face of a defendant's suggestion that in fact he is not guilty runs contrary to all basic conceptions of justice under law.   Whenever the superior court has reason to suspect that a defendant has pleaded guilty to a felony as a matter of expediency we think the court has inherent power to set aside the plea on its own initiative prior to the entry of judgment.”  (People v. Clark (1968) 264 Cal.App.2d 44, 46–47, 70 Cal.Rptr. 324.)

 In this case the trial judge was dissatisfied with the proffered factual basis on the issue of mens rea.   Even assuming arguendo that circumstantial evidence appears in the record to support a finding of the requisite state of mind, there is no requirement that the judge ignore the defendant's statements, and seek other evidence that will help support a guilty plea.

The trial court gave appellant ample opportunity to obtain the benefits of his plea bargain.   After expressing the view that a factual basis had not been shown, the court called a recess to allow counsel to confer.   Even so, neither the prosecutor nor the defense attorney gave the court any additional facts.   Considering the information that was before the court, we cannot say the court abused its discretion in refusing to accept the plea.4  (People v. Clark, supra, 264 Cal.App.2d 44, 70 Cal.Rptr. 324;  United States v. Navedo (2d Cir. 1975) 516 F.2d 293.)

Appellant's reliance on People v. Superior Court (Barke) (1976) 64 Cal.App.3d 710, 134 Cal.Rptr. 704 is misplaced.   That case held that absent a showing of good cause pursuant to Penal Code section 1018, a superior court cannot refuse to accept a bargained plea which had previously been entered before and accepted by a magistrate.   In the instant case the plea proceedings were never completed (see Keene, California Criminal Trial Judges Benchbook (1981 Ed.) Change of Plea to Guilty, p. 24.4), and the judge before whom the plea was attempted to be entered never accepted the defendant's guilty pleas.   Thus, Barke is of no help to appellant.

Finally, appellant contends that even should this court hold, as we have, that the trial court properly found there was an insufficient factual basis for the guilty plea to the DiCicco's robbery, the court should nonetheless have accepted the plea since there was an admission of complicity in the bank robbery (Count I).   We disagree.

Appellant premises his contention on the initial statements he made during the colloquy with the trial court.   When asked by the court what occurred at DiCicco's, appellant responded, “I just went along with a guy who told me to do the robbery with him, not realizing—just being with him.   I'm just as guilty.   I didn't know that.”   A few questions and answers later, appellant told the court that the foregoing statement was a reference to the circumstances of the bank robbery.

 Appellant urges that these statements were sufficient to satisfy the requirements of section 1192.5.   He relies on People v. Watts, supra, 67 Cal.App.3d 173, 136 Cal.Rptr. 496, where it is said that inquiry into the factual basis for a plea “ensures that the defendant actually committed a crime at least as serious as the one to which he is willing to plead.”  (Id., at p. 178, 136 Cal.Rptr. 496.)   The Watts court did not provide a citation of authority following the quoted language, but we find it reasonable to assume that the court was referring to plea bargaining principles.   It is, of course, the rule that pursuant to a plea bargain, a defendant may plead guilty to uncharged crimes which he has not committed, so long as the crimes are reasonably related to those with which he is actually charged.  (People v. West (1970) 3 Cal.3d 595, 611–613, 91 Cal.Rptr. 385, 477 P.2d 409.)

Thus, appellant contends that once he admitted complicity in the bank robbery, the trial court was given an adequate factual basis to support the plea bargain.   We agree with appellant that the terms of the plea bargain were clearly adequate under the principles set forth in People v. West, supra, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409.   However, appellant's argument overlooks a crucial requirement of a West plea.

 When a West plea is taken, the parties must apprise the court of the terms of the bargain, and must be certain that those terms are made part of the record.  (3 Cal.3d at pp. 608–611, 91 Cal.Rptr. 385, 477 P.2d 409.)   That did not occur in this case.   The parties made no representation to the trial court that the dismissed bank robbery charge was to play any part in the plea bargain.   Thus, the trial court was in no position to take a West plea.


Appellant requested the following instruction:

“Mere presence at the scene and failure to take steps to prevent a crime does not establish aiding and abetting.

“An aider and abettor must be shown to have shared the criminal intent to [sic] the principal whose conduct such person is alleged to have aided and abetted, and must have knowledge of the unlawful purpose of the perpetrator of the crime.   There must be conduct which renders independent contribution to the commission of the crime or which otherwise makes it more probable that the crime will be successfully completed than would be the case absent such participation.

“To be an aider and abettor it is not a requisite that the evidence establish the defendant have the specific intent to commit the crime, but to be responsible as an aider and abettor, the evidence must show the defendant knowingly and with criminal intent aided, promoted, encouraged or instigated by act or advice, or by act and advice, the commission of the crime with the knowledge of the unlawful purpose of the perpetrator, if any.   In addition, it must be proven beyond a reasonable doubt, that the perpetrator, if any, whose conduct the defendant is alleged to have aided and abetted, committed such crime as defined in these instructions.”

The court declined to give the requested instruction on the ground that it was covered by CALJIC No. 3.01 which was given by the court.5

Appellant contends that it was prejudicial error for the court to deny the requested instruction.   He argues the instruction was necessary to indicate to the jury that an aider and abettor must make some “independent contribution” to the commission of the crime.   He further argues that, absent this instruction, the jury could have found him guilty of the DiCicco's robbery, even though they believed his testimony that he did not know of his companion's plan to rob the restaurant.   This result could occur if the jury wrongly found that appellant made it more difficult for the robber to be caught by fleeing with him.

As to his first contention that conviction as an aider and abettor requires some “independent contribution” to the commission of the crime, appellant relies on People v. Markus (1978) 82 Cal.App.3d 477, 147 Cal.Rptr. 151.   There, the court stated, “[t]he logical basis for conviction as an aider and abettor is that with knowledge of the unlawfulness of the act, one renders some independent contribution to the commission of the crime or otherwise makes it more probable that the crime will be successfully completed than would be the case absent such participation.”  (Id., at p. 481, 147 Cal.Rptr. 151, quoting People v. Belenger (1963) 222 Cal.App.2d 159, 163, 34 Cal.Rptr. 918.)

The cited language represents a distinctly minority view which has been cited only twice, once by the Markus court and initially by the court in People v. Belenger, supra, 222 Cal.App.2d 159, 163, 34 Cal.Rptr. 918.   The Belenger court relied on a hornbook citation for its authority.   Thus, the “independent contribution” concept is far from the mainstream of the law of aiding and abetting.

 This is established by People v. Francis (1969) 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591.   There, the Supreme Court stated the test for aiding and abetting as, “whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.”  (Id., at p. 72, 75 Cal.Rptr. 199, 450 P.2d 591, quoting People v. Villa (1957) 156 Cal.App.2d 128, 134, 318 P.2d 828.)   It is readily apparent that there is no requirement that the defendant must render some “independent contribution” to the commission of the crime.   It is sufficient, as CALJIC No. 3.01 provides, that the accused, with knowledge of the unlawful purpose of the perpetrator, assists or encourages the commission of a crime.   Thus, the court did not err in failing to give the proffered instruction, since the jury was otherwise fairly instructed.  (People v. Jenkins (1973) 34 Cal.App.3d 893, 899, 110 Cal.Rptr. 465.)

Appellant also contends that his requested instruction was necessary, since the jury may have improperly found that his act of fleeing with the DiCicco's robber was sufficient to create liability for the robbery, even though the jury believed appellant's testimony that he was unaware of the plan to commit a robbery.   This contention borders on the frivolous.

 The jury was instructed that appellant could not be convicted as an aider and abettor unless he had knowledge of the perpetrator's plan.  (CALJIC No. 3.01.)   Thus, the jury obviously disbelieved appellant's testimony.   Appellant also overlooks that flight from the scene of a crime, though not sufficient to establish guilt as an aider and abettor, is a factor which may be considered in determining guilt.  (People v. Jones (1980) 108 Cal.App.3d 9, 15, 166 Cal.Rptr. 131;  In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095, 126 Cal.Rptr. 898.)   Thus, the failure to give the requested instruction did not prejudice appellant.

 Even assuming arguendo that prejudice has been shown, it is not “reasonably probable” that there would have been a different result had the instruction been given.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   The central determination to be made by the jury with respect to the two robberies was whether appellant was credible in his testimony that he was merely along for the ride in both instances.   Had this testimony been believed, appellant would have been acquitted regardless of whether or not his requested instruction was given.   Obviously, his testimony was not believed.   It is not “reasonably probable” that he would have been believed if the instruction had been given.

The judgment is affirmed.

I respectfully dissent from that part of the majority opinion which addresses the question of the trial court's duty of inquiry into the factual basis for a guilty plea.

The majority recognizes that the factual basis requirement of Penal Code section 1192.5 is calculated to protect the rights of an innocent defendant who is not sufficiently skilled in principles of law to be cognizant of his own innocence.  (People v. Watts (1977) 67 Cal.App.3d 173, 178, 136 Cal.Rptr. 496.)   However, once having recognized the protection offered by the factual basis requirement, the majority abandons any analysis of the rights of the defendant, and focuses solely on the question of the trial court's duty.   Such a narrow focus is entirely inappropriate.   In assessing the nature and extent of the court's duty, it is also necessary to examine the rights of the defendant.   In my view, once the rights of the defendant are recognized, it will be seen that the trial court abused its discretion in this case, when it failed to make an inquiry beyond a mere dialogue with the defendant.

The defendant has a personal right to plead guilty which may not be interfered with absent compelling reasons.  (People v. Hill (1974) 12 Cal.3d 731, 768, 117 Cal.Rptr. 393, 528 P.2d 1.)   The decision to plead guilty is to be made solely by the defendant.  (People v. Vaughn (1973) 9 Cal.3d 321, 328, 107 Cal.Rptr. 318, 508 P.2d 318.)   So long as a defendant is mentally competent, he may refuse the contrary recommendation of his attorney and plead guilty notwithstanding the attorney's view that nothing is to be gained by such a plea.  (Ibid.)

Thus, while the factual basis requirement protects the innocent, the law also permits the individual to voluntarily waive both statutory and constitutional rights where the individual has been informed of those rights but, nonetheless, wishes to forego them and plead guilty.   I do not think the factual basis requirement should be construed as a stringent bar to the right to plead guilty.   Rather, it must be accorded its proper role, which is to serve as a protection for the innocent.   Where a defendant is well informed of his rights and potential criminal liabilities, the court should be wary of denying him the right to plead guilty.   This is not to say, however, that in the instance where the defendant is not well informed (perhaps because of a lack of counsel) or where the evidence is truly deficient the court should accept a guilty plea.   The court must simply make those inquiries which give it reasonable assurance that there is a basis for the defendant's plea.

I now turn to an analysis of the extent of the inquiry which the trial court must make.   The duty of the trial court is stated in the mandatory language of “shall also cause an inquiry to be made ․”   Thus, a guilty plea may not be taken without some finding of a factual basis for the plea.   However, as was found in People v. Watts, supra, 67 Cal.App.3d 173, 136 Cal.Rptr. 496, the extent of the inquiry is to be left to the discretion of the trial court.   (Id., at p. 179, 136 Cal.Rptr. 496.)   In this case, the trial court sought to find a factual basis for the guilty plea by engaging in a verbal dialogue with appellant.   Appellant, while apparently admitting complicity in a bank robbery, continually protested that he had no advance knowledge that his companion planned to rob DiCicco's.   The court was unable to elicit any admission of guilt from appellant and, finally, after the parties failed to arrange an alternative plea, refused to accept the plea as to the charge of robbing DiCicco's.   At no point did either the prosecutor or defense counsel make an offer of proof as to the evidence which would show appellant's involvement in the DiCicco's robbery.1  Thus, did the court abuse its discretion in failing to make an inquiry beyond its dialogue with appellant?

United States v. Navedo (2d Cir. 1975) 516 F.2d 293 provides a useful starting point in the analysis of the scope of the court's duty of inquiry.2  Even though federal authority is not binding on this court, the issue in Navedo, as here, was whether appellant's conviction should be reversed where the court refused to accept a guilty plea and appellant was later convicted at trial.   The trial court determined that appellant had made insufficient admissions of guilt.   By a two-to-one vote, the conviction was upheld.   In construing rule 11 of the Federal Rules of Criminal Procedure, the majority stated that the rule “contemplates independent inquiry by the court.”  (Id., at p. 298, fn. 10.)   Thus, the trial court could go beyond the statements made by the defendant and engage in further inquiry.   (Ibid.)  The trial court had in fact made such inquiries and had obtained written material from the government in support of the guilty plea.   (Ibid.)  In dissent, Chief Judge Kaufman argued that further inquiries by the trial court would have resulted in acceptance of the plea:

“Rule 11, however, clearly contemplates independent inquiry by the court in satisfying itself that there exists a factual basis for the plea.  [Citations.]   Indeed, this case illustrates the danger of relying exclusively on information supplied by the defendant himself.   A defendant may attempt to minimize his culpability during his allocution because he knows that the same judge will be imposing a sentence.   A simple question directed to the government—‘What evidence would you present at trial?’—would counteract the defendant's natural tendency to distort available evidence.   In this case it would also have obviated the need for trial, and saved Navedo at least a year in the penitentiary.”  (United States v. Navedo, supra, 516 F.2d at pp. 299–300 [diss. opn. of Kaufman, C. J.].)

I find the view of Chief Judge Kaufman extremely persuasive.   It is no doubt true that a defendant will often refuse to state the facts on which his culpability rests for fear that the sentencing judge will later use the same facts to impose a harsh sentence.   Further, if as the majority concedes, the purpose of finding a factual basis is to protect the innocent, it behooves the trial court to make further inquiries to ascertain whether the defendant before it is potentially innocent or whether there is overwhelming evidence which the defendant merely refuses to admit.   The judicial process does not benefit from a trial certain to end in conviction where the defendant wishes to avoid that needless exercise by means of a guilty plea.

Moreover, People v. Watts, supra, 67 Cal.App.3d 173, 136 Cal.Rptr. 496 is consistent with this view.   There, it was stated that the trial court could develop the necessary factual basis by one of many means such as, “by having the accused describe the conduct that gave rise to the charge, or by making specific reference to those portions of the grand jury transcript or preliminary hearing transcript which provide a factual basis for the plea, or by eliciting information from the defense attorney or the district attorney.  [Citation.]”  (Id., at pp. 179–180, 136 Cal.Rptr. 496.)   The court further stated that the factual basis could be determined without receiving any information whatsoever from the defendant.  (Id., at p. 180, 136 Cal.Rptr. 496.)

In this case, the preliminary hearing transcript was no doubt available for the perusal of the trial court if it had been requested.   A reading of a few pages of the transcript would have indicated that appellant was glancing throughout the restaurant, engaged a waitress in nervous conversation while, unbeknownst to the waitress, the robbery was in progress and then fled with the robber when the cash was received.   This evidence was clearly sufficient to show a factual basis for the guilty plea.3  Further, there is no evidence in the record that the trial court sought to elicit the facts of the case from either the prosecutor or the defense attorney.   The furthest extent to which the court went in this regard was asking one question of appellant which had been suggested by the prosecutor.4

Thus, I believe a trial court abuses its discretion under Penal Code section 1192.5 when it fails to make those reasonable inquiries which would develop a factual basis for a guilty plea.   The trial court is not required to inquire beyond the records before it, the taking of testimony offered by the parties, or offers of proof requested from the parties.   However, a mere dialogue with a defendant, as here, does not satisfy the court's duty of inquiry where the defendant, as is his right, maintains his innocence.  (People v. Watts, supra, 67 Cal.App.3d 173, 180, 136 Cal.Rptr. 496.)

Finally, I note the majority's concern that the adoption of my view would necessarily tie the hands of the trial court, since a factual basis could always be found somewhere.   In response, I have several observations.

The fact that a defendant is held to answer at the preliminary examination does not provide a prima facie factual basis.   Magistrates have erred in holding defendants to answer.   Further, section 1192.5 contains a mandatory directive to the trial court to make a finding of a factual basis notwithstanding what transpired before the magistrate.

I do not believe that our criminal justice system is premised on the power of trial court judges to require guilty defendants to endure the misery and trauma of trial.   Rather, we seek justice.   If a man believes himself to be guilty, the trial court need only find a factual basis for this belief.   Once having found the factual basis, the trial court is, in my opinion, powerless to refuse the guilty plea.5

Moreover, judicial economy compels the procedure I suggest.   As Chief Judge Kaufman recognizes, acceptance of a guilty plea obviates the need for a trial.  (United States v. Navedo, supra, 516 F.2d 293, 300 [diss. opn. of Kaufman, C. J.] ), which in this case, and many others like it, was certain to end in conviction.   In an era when both civil and criminal trial calendars are tremendously backlogged, I cannot countenance the rejection of the guilty pleas in this case.



1.   This statute has since been repealed.  (See Stats.1979, ch. 873, § 11.)

2.   Penal Code section 1192.5 provides in relevant part:  “The court shall also 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 such plea.”

3.   Rule 11(f) of the Federal Rules of Criminal Procedure provides the court should not enter judgment upon a plea of guilty “without making such inquiry as shall satisfy it that there is a factual basis for the plea.”

4.   The dissent in this case seeks to employ the method of snatching explanatory language out of a footnote in one case and elevating it to doctrine in another.   Further, in doing so, it misconstrues the content.The dissent is correct that footnote 10 of the majority opinion in United States v. Navedo, supra, 516 F.2d 293, does mention an “independent inquiry” by the court to determine a factual basis.   It is incorrect in attempting to convert that permissible authority to a mandatory duty.In fact, in this case the court did conduct an independent inquiry by calling a recess and thereafter asking both the prosecutor and defense counsel if they had anything to add.   Neither did.   The dissent would go further and mandate the trial judge to search the record for a factual basis where none is provided by the litigants.   Such a requirement is both improper and unwise.It is difficult to conceive of an initial guilty plea felony proceeding in superior court where the record would not contain some source that could provide a factual basis.   If a defendant has been held to answer upon a showing of probable cause after a preliminary hearing, obviously there is a prima facie factual basis.   Even if the defendant waived preliminary hearing, most cases will have some document which could provide the factual basis (e.g., affidavit in support of an arrest warrant).   The practical effect of the dissent's proposed rule would be that a trial judge could seldom, if ever, reject a proffered plea on the ground that there was insufficient factual basis.   Such a rule is not, and should not be the law.

5.   CALJIC No. 3.01 provides:“A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.  [Mere presence at the scene of a crime and failure to take steps to prevent a crime do not in themselves establish aiding and abetting.]”

1.   The record is silent as to defense counsel's motivation in remaining mute as the plea bargain he had negotiated went down the drain.   I am mystified as to how a reasonably competent attorney could permit this to occur without at least some attempt to save the plea bargain.

2.   The majority criticizes my reliance on Navedo.   Suffice it to say that where an appellate court considers an issue of law where the slate is blank, guidance must come from somewhere.I also note in passing that the majority's reliance on People v. Clark (1968) 264 Cal.App.2d 44, 70 Cal.Rptr. 324, is less than persuasive.   Penal Code section 1192.5 was not enacted until 1970.   Thus, the Clark court could scarcely have been considering the nature of the trial court's mandatory duties under section 1192.5, when those duties were not yet in existence.

3.   The trial court need not believe a defendant to be guilty beyond a reasonable doubt, nor must the trial court resolve contradictions in the evidence.  (People v. Watts, supra, 67 Cal.App.3d 173, 179, 136 Cal.Rptr. 496;  United States v. Webb (1st Cir. 1970) 433 F.2d 400, 403.   A lesser showing of guilt is sufficient, and it has been suggested that so long as a factual basis exists, the court need not believe the defendant to be guilty.  (Watts, supra, at p. 179, 136 Cal.Rptr. 496, citing 1 Wright, Federal Practice and Procedure (1969) § 174, pp. 377–378.)

4.   The majority notes that the trial court called a recess and thereafter asked the parties whether they had anything to add.   While this was certainly proper conduct on the part of the court, I do not see how the majority construes this as an “independent inquiry.”   Inquiry necessarily entails a question such as, “What does the evidence show?”   Merely calling a recess and asking if the parties have anything to say does not put the parties on notice that the court is seeking to find a factual basis.

5.   My analysis is, of course, limited to the issue of what constitutes a sufficient factual basis.   The trial court, pursuant to section 1192.5, retains its power to subsequently reject the plea bargain at the time set for pronouncement of judgment.

CONKLIN, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.