People v. Farakesh CA6

Filed 5/27/22 P. v. Farakesh CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047935
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1913911)

v.

EAMON FARAKESH,

Defendant and Appellant.

Pursuant to a negotiated plea agreement, defendant Eamon Farakesh pleaded no
contest to a single felony count of taking or unauthorized use of a vehicle with the intent
to temporarily deprive the owner of possession (Veh. Code, § 10851, subd. (a)). As
provided for in the plea agreement, the trial court granted Farakesh three years of
probation.
On appeal, Farakesh raises two issues: (1) the trial court abused its discretion by
finding a factual basis for his no contest plea based on defense counsel’s stipulation; and
(2) this court should remand the matter to the trial court to reduce his probationary term
under Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950). The
Attorney General maintains that the trial court did not abuse its discretion in finding a
factual basis. He concedes that remand is appropriate so that Farakesh may be
resentenced.
We determine that the trial court did not abuse its discretion in finding a factual
basis. In addition, we agree with the parties that the case should be remanded for a
reduction in the probation term. Thus, we reverse the probation order and remand with
instructions.
I. BACKGROUND
A. The Complaint
On July 22, 2019, the Santa Clara County District Attorney’s Office filed a
complaint charging Farakesh with a single count of taking or unauthorized use of a
vehicle with the intent to temporarily deprive the owner of possession, in violation of
Vehicle Code section 10851, subdivision (a). The complaint alleged that Farakesh “did
take or drive a vehicle, a[n] Alfa Romeo Giulia, belonging to Alfa Romeo Stevens Creek
dealership, without the consent of the owner and with the intent to temporarily deprive
the owner of title to and possession of the vehicle.”
B. The Plea and Sentence
On January 6, 2020, Farakesh pleaded no contest to a violation of Vehicle Code
section 10851, subdivision (a). In the advisement of rights, waiver, and plea form,
Farakesh agreed to plead no contest in exchange for placement on probation for three
years with four months of custody in the county jail. Farakesh acknowledged by
initialing the corresponding box that he “agree[d] there is [a] factual basis for my plea
based on my discussions with my attorney(s) about the elements of the crime(s) and any
defenses I may have, and I am satisfied with the advice I received.” He also
acknowledged, again by initialing the corresponding box, “I have an attorney and I talked
with my attorney about this case,” and further indicated “I have had a full opportunity to
talk with my attorney(s) about the facts of my case [and] the elements of the charge[,] . . .
any defenses I may have[,] [and] the factual basis and consequences of this plea . . . .”
Defense counsel indicated, with her signature, “I stipulate there is a factual basis
for the felony plea(s) and admissions.” The prosecutor, also with her signature,
indicated: “I stipulate there is a factual basis for the felony plea(s) and admissions.
My stipulation is based on the investigative report(s) and the preliminary hearing

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transcript (if there was a preliminary hearing), and the other material within the court’s
file.”
At the change of plea hearing, the trial court asked Farakesh, as relevant here,
“Did you go over this [plea change] form with your attorney?” Farakesh replied, “Yes.”
The court stated, “You seem hesitant to answer, sir.” Defense counsel interjected, “He
signed the form with my paralegal giving him the form.” The court asked, “You went
over the form with the paralegal?” Farakesh answered, “Yes.” The court then asked,
“Did you understand the information on the form?” Farakesh again answered, “Yes.”
After further questioning about the waiver form, Farakesh entered a no contest plea to the
complaint. The court then confirmed with defense counsel that she concurred with
Farakesh’s waiver of rights and change of plea, and with the prosecutor that the waiver
form correctly set forth the terms and conditions of the plea agreement. The court
concluded: “I’ll accept the defendant’s pleas and make the findings and orders as set
forth in the waiver form.”
The probation department filed a sentencing report that contained no statement of
facts. The report noted, however, that the victim, Alfa Romeo Stevens Creek, reported,
“ ‘We recovered the vehicle so there is no need for restitution.’ ”
At the sentencing hearing on February 25, 2020, defense counsel informed the
court that Farakesh “would like to be eligible for [electronic monitoring program], but
he’s very concerned about the consequences a felony would have for him.” The court
stated: “It’s a felony. So there’s nothing I can do. At some point you can ask to have it
reduced to a misdemeanor, but you pled to a felony, and I have to sentence you as a
felony.” Farakesh reiterated his concerns to the court. The court stated in response, “it
sounds like you have what we call buyer’s remorse.” The court asked defense counsel
about the change of plea. Defense counsel stated that she “met with Mr. Farakesh a
number of times” and informed him “this is not a situation we enter a plea, we can say
never mind, we’re not going to do this.” Defense counsel further stated that she “advised

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him of his right to a preliminary hearing, if he wanted one, and wanted to contest the
charges.” She said she also “let Mr. Farakesh know he has the right—I wanted to give
him the opportunity to confer with an attorney if he wanted before entering his pleas. He
did so on January 6th.”
The court informed Farakesh, “I’m going to sentence you, then [you] can bring a
motion to try to withdraw the plea.” The court again characterized the situation as
“buyer’s remorse,” noting that “usually the [district attorney] offers four months county
jail. This [district attorney] gave you . . . [electronic monitoring program], which is rare;
so you opted to take that instead of get[ting] the standard sentence which is four months
county jail. Now, looking back, you’re saying, ‘You know what, it now could affect my
future.’ Your attorney told you that. So [is there] any legal cause why judgment should
not now be imposed?” Defense counsel responded, “No, Your Honor.” The court
sentenced Farakesh to four months of county jail, suspended imposition of sentence, and
granted formal probation of three years.
Farakesh filed a timely notice of appeal.
II. DISCUSSION
Farakesh argues that the trial court abused its discretion by accepting his no
contest plea without adequately ensuring there was a sufficient factual basis. He also
argues that his probation term should be reduced based on a recent amendment to the
Penal Code.
A. Standard of Review
“A guilty plea is, for most purposes, the legal equivalent of a verdict of guilty
reached by a jury.” (People v. Valladoli (1996) 13 Cal.4th 590, 601.) “Indeed, it serves
as a stipulation that the People need introduce no proof whatever to support the
accusation: the plea ipso facto supplies both evidence and verdict.” (People v. Chadd
(1981) 28 Cal.3d 739, 748.) “A plea of no contest has the same legal effect as a guilty

4
plea,” as it admits every element of the charged offense. (People v. Robinson (1997) 56
Cal.App.4th 363, 368; see Pen. Code, § 1016, subd. 3.)1
“Section 1192.5 provides that for a conditional plea of guilty or no contest, the
trial court is required to ‘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.’ ”
(People v. Holmes (2004) 32 Cal.4th 432, 438; see § 1192.5, subd. (c).) This can be
accomplished “by directly questioning the defendant, or by garnering statements and
admissions by his counsel.” (Holmes, supra, at p. 440.) “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.” (Id. at p. 442.) “When both parties stipulate on the record to a document,
such as a police report, the factual basis requirement is met.” (Id. at p. 440.) The trial
court’s acceptance of the plea, “after pursing an inquiry to satisfy itself that there is a
factual basis for the plea, will be reversed only for abuse of discretion.” (Id. at p. 443.)

1. The Trial Court Did Not Abuse Its Discretion in Finding A Factual Basis for
The Plea
Farakesh argues that the trial court abused its discretion by accepting his plea
“without causing a sufficient inquiry to be made into the factual basis for the plea.” He
contends that the bare stipulation obtained from defense counsel attesting to the existence
of a factual basis did not satisfy the court’s duty under section 1192.5. The Attorney
General argues that the trial court satisfied its statutory duty by accepting defense
counsel’s stipulation to a factual basis for the plea, citing People v. Palmer (2013) 58
Cal.4th 110 (Palmer).

1
Unspecified statutory references are to the Penal Code.

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 The California Supreme Court explained in Palmer that “[s]ection 1192.5 requires
the trial court to make an inquiry to satisfy itself that there is a factual basis for a
conditional plea,” and that a “ ‘stipulation by counsel to the plea’s factual basis is
consistent with the legislative purpose of the statute.’ ” (Palmer, supra, 58 Cal.4th at
p. 118.) The court noted that the “ ‘better approach’ ” is for counsel to stipulate to a
particular document that provides an adequate factual basis for the plea, so as to eliminate
“any uncertainty regarding the existence of a factual basis.” (Ibid.) However, the Palmer
court embraced the Attorney General’s argument “that a stipulation to a factual basis for
a plea is akin to an evidentiary stipulation, the making of which is a tactical decision
entrusted to trial counsel, and which is conclusive without reference to additional
evidentiary support.” (Id. at p. 117.) Thus, “a bare stipulation without reference to any
document describing the facts may, in an appropriate case, satisfy the requirements of
section 1192.5.”2 (Id. at p. 114.)
As in Palmer, the trial court in this case did not abuse its discretion by accepting
defense counsel’s bare stipulation of a factual basis. The complaint alleged that Farakesh
“did take or drive . . . a[n] Alfa Romeo Giulia, belonging to Alfa Romeo Stevens Creek
dealership, without the consent of the owner and with the intent to temporarily deprive

2
The Palmer court explained it saw “several reasons to accord trial courts
flexibility in establishing a factual basis for the plea, without undermining the primary
goal of assuring that the defendant entered the plea voluntarily and intelligently. A
defendant may be factually guilty but still hesitate to stipulate to the truth of an entire
document like a police report that contains details he or she either disputes or simply does
not want to admit. If there is no stipulated sentence, counsel may fear the police reports
will demonstrate the existence of aggravating factors that could cause the court to impose
a higher sentence, or to reject the plea bargain altogether. In sensitive cases involving
intrafamilial violence and abuse, a defendant may wish to avoid having confidential
information about the victim become part of the public record in the case.” (Palmer,
supra, 58 Cal.4th at p. 119.) Thus, “a rule limiting trial courts’ discretion to accept
conditional pleas predicated on stipulations by counsel would raise potential concerns for
the defense function.” (Ibid.)

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the owner of title to and possession of the vehicle.” The probation report related that the
vehicle was returned. Farakesh pleaded no contest to the complaint as charged. In
addition to defense counsel’s stipulation, the prosecutor stipulated in the plea form to a
factual basis based in part on her review of the “investigative report(s)” underlying this
case. In sum, nothing in the record demonstrates that counsel’s stipulation was
inadequate, or that the trial court abused its discretion by accepting it. Thus, based on the
factual record and stipulations of counsel, we conclude that the trial court acted well
within its discretion when it found a factual basis for Farakesh’s plea.
Farakesh distinguishes Palmer because the defendant in that case acknowledged in
the plea colloquy that he had discussed the elements of the crime and any defenses with
his attorney and was satisfied with his attorney’s advice. (See Palmer, supra, 58 Cal.4th
at p. 114.) Farakesh notes that at his plea colloquy, he attested to speaking with a
paralegal concerning his plea form, not his attorney. The record on this point is
somewhat unclear. On the plea form, Farakesh indicated, by checking the appropriate
box, “I have an attorney and I talked with my attorney about the case.” He further
indicated he “had a full opportunity” to talk with his attorney about “the facts of my
case,” “the elements of the charge,” “any defenses I may have,” and “the factual basis
and consequences of [his] plea . . . .” At the plea hearing, defense counsel represented
that “[Farakesh] signed the form with my paralegal giving him the form.” Defense
counsel’s signature on the plea form, however, indicated she had spoken to defendant
about this form, the elements of the crime, and the facts of the case. This point was
echoed at the sentencing hearing, where defense counsel reiterated specifically that
“[a]fter looking at all rights and options, [Farakesh] did execute the waiver form, [I]
answered each question” and that “I let [him] know [that] he has the right—I wanted to
give him the opportunity to confer with an attorney if he wanted before entering his pleas.
He did so on January 6th.”

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 Although the Palmer court did find that the defendant in that case “had discussed
the elements of the crime with his counsel, and [stated] that he was satisfied with
counsel’s advice” (Palmer, supra, 58 Cal.4th at p. 119), we do not find that factor
determinative in this case. “The purpose of the factual basis requirement is to help ensure
that the constitutional standards of voluntariness and intelligence are met.” (Id. at
p. 118.) Put another way, it “ ‘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. [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.’ ” (People v. French (2008) 43
Cal.4th 36, 50.)
The trial court’s inquiry into the factual basis in this case satisfied this concern. At
the plea colloquy, Farakesh affirmed that he understood the information on the plea form,
that he personally initialed the boxes, and that he did so after reading the information next
to the boxes. He further indicated on the plea form that he had discussed his case with
his attorney, including elements of the charge, possible defenses, and the factual basis
and consequences of his plea. As in Palmer, “[a]t no time did he protest his factual
innocence.” (Palmer, supra, 58 Cal.4th at p. 119.) Rather, in response to the trial court’s
voir dire, Farakesh confirmed his understanding of the proceedings and stated
unequivocally that he wanted to proceed with a plea of no contest. As the Palmer court
stated, “a bare stipulation without reference to any document describing the facts may, in
an appropriate case, satisfy the requirements of section 1192.5.” (Id. at p. 114.) We
conclude this is such a case, and the trial court did not abuse its discretion in satisfying
the requirements of section 1192.5.

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 2. Assembly Bill 1950 Retroactively Applies to This Case
Farakesh argues that his probation term should be reduced to two years because a
three-year term of probation is no longer authorized. The Attorney General agrees that
Farakesh is entitled to the benefit of Assembly Bill 1950.
At the time of Farakesh’s sentencing in February 2020, the trial court had the
authority to impose a three-year term of probation. (Former § 1203.1, subd. (a).) On
January 1, 2021, Assembly Bill 1950 took effect and reduced the maximum probationary
term for most felony offenses to two years. (Stats. 2020, ch. 328, § 2; § 1203.1,
subds. (a), (m); People v. Quinn (2021) 59 Cal.App.5th 874, 879.) Section 1203.1,
subdivision (a), now states in relevant part: “The court, or judge thereof, in the order
granting probation, may suspend the imposing or the execution of the sentence and may
direct that the suspension may continue for a period of time not exceeding two years, and
upon those terms and conditions as it shall determine.” There are exceptions to the new
two-year limitation for certain felonies, but those exceptions do not apply here. (See
§ 1203.1, subd. (m).)
We agree that this amendment is retroactive to all nonfinal cases. (People v.
Greeley (2021) 70 Cal.App.5th 609, 627.) Because Farakesh’s case is not yet final,
Assembly Bill 1950 applies here. The parties dispute the appropriate remedy to reduce
the probation term. Farakesh asks this court to simply reduce the term of probation to
two years. The Attorney General asserts that remand is more appropriate: “Merely
striking any portion of the probationary term that exceeds two years for a felony deprives
the superior court and the parties of a necessary determination of the status of the
probation at the time of termination.” We agree with the Attorney General. Because we
are not aware of the status of Farakesh’s probation while the case has been pending on
appeal, we will remand for the trial court to modify probation consistent with amended
section 1203.1.

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 III. DISPOSITION
The probation order is reversed. The matter is remanded to the trial court with
directions to modify Farakesh’s term of probation in accord with Penal Code section
1203.1, subdivision (a), as amended by Assembly Bill No. 1950 (2019-2020 Reg. Sess.).

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 ___________________________________
Wilson, J.

WE CONCUR:

______________________________________
Bamattre-Manoukian, Acting P.J.

______________________________________
Danner, J.

People v. Farakesh
H047935