Filed 6/22/21 P. v. Bailey CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305931
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA077929)
v.
MELVIN LUDLOW BAILEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert G. Chu, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen and Peggy Z.
Huang, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Melvin Bailey was convicted by no
contest plea of felon in possession of a firearm (Pen. Code,
§ 29800, subd. (a)(1)) and admitted a prior felony conviction
within the meaning of the Three Strikes law (Pen. Code,
§ 1170.12).1 On appeal, he argues that he did not actually admit
the prior. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because the sole issue on appeal relates to defendant’s
admission of the prior, we limit our discussion to those facts. On
December 31, 2019, defendant was charged by felony complaint
with felon in possession of a firearm, as well as unlawful
possession of ammunition (§ 30305, subd. (a)(1)). Two prior
strikes were alleged, one of which was a violation of section 245,
subdivision (a)(1), in case number MA059308. At arraignment,
defendant pled not guilty and denied the strike allegations.
Two weeks later, on January 13, 2020, defendant changed
his plea. Pursuant to an agreement, defendant would plead no
contest to felon in possession of a firearm and admit one strike;
he would receive a four-year sentence; the possession of
ammunition count would be dismissed.
Defendant signed a plea form setting forth the terms of the
agreement. The form, as filled out, presents a few detours with
respect to the strike. Section One of the form is to list the
“CHARGES AND MAXIMUM TERM” and begins, “I want to
plead guilty or no contest . . . to the charges and allegations listed
below.” There follows a chart where charges and enhancement
allegations, including prior convictions, are to be listed. Here,
the chart properly identifies the offense of felon in possession of a
1 All further undesignated statutory references are to the
Penal Code.
2
firearm, but the only enhancement listed is “1170(h)(3),” which is
a provision for a mandatory prison sentence, not the strike. It
does however, list “x2” as the maximum exposure purportedly
attached to the enhancement.2 Section 2 of the form is the
“PLEA AGREEMENT,” which encompasses a number of
subsections. The first, subsection “a,” is to identify the agreed-
upon sentence. It shows a 4-year prison term, although it
appears that “2” years was originally written, then crossed out
and replaced with “4.” A later subsection “i,” which identifies
“Other Terms” of the plea agreement, specifically addresses the
strike. Written there is: “Midterm 2 x 2 admit strike prior
245(a)(1) MA 0593 93 08.” Section 9 is defendant’s plea. It
states, “I freely and voluntarily plead [box checked for] NO
CONTEST to the charges listed in item 1 . . . and admit the
allegations listed in item 1 . . . , understanding that this plea and
admission will lead to the penalties listed in item 2 . . . .” As we
have explained, the strike prior was not specifically identified as
an “allegation[] listed in item 1,” but the doubling of the sentence
for admitting the strike was listed as a penalty in subsection “i”
of item 2. Defendant initialed each relevant subsection and also
signed the form, as did his counsel. The trial court signed the
form, indicating its acceptance of the plea.
At the plea hearing, the court set forth the terms of the
agreement. Specifically, the court stated, “You will be entering a
guilty or no contest plea to count 1, a violation of Penal Code
section 29800(a)(1), a felony known as possession of a firearm by
2 The chart is also intended to indicate the “TOTAL
MAXIMUM TIME” to which the defendant is exposed. It appears
that someone first wrote “3” in this column, crossed it out, and
replaced it with “6.”
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a felon for the mid term two years in state prison. That’s going to
be doubled up because you’re admitting your prior strike for a
total of four years in state prison.” The court asked if this was
defendant’s understanding of the agreement; defendant
responded, “Yes, correct.” Defendant admitted reading and
signing the plea form after consultation with counsel. The court
took the necessary waivers on the record. Defendant again
confirmed he understood he would go to prison for four years.
When it came time to take the plea, defendant pled no
contest to felon in possession of a firearm. The court then asked,
“Do you admit you have a prior strike in case number MA059308
for a violation of Penal Code section 245(a)(1) with a conviction
date of August 28, 2013, in Los Angeles County within the
meaning of Penal Code section 667(d) and Penal Code section
1170.12(b)? Do you admit that prior strike to be true?”
Defendant responded, “I admit they say I have one, yes.” Counsel
joined in the admission. The court accepted the plea and
admission.
At defendant’s sentencing hearing on February 3, 2020,
defendant pursued a motion to withdraw his plea, on the basis
that there were false allegations in the police report.3 The motion
3 Defendant also made an oral motion to replace his counsel
under People v. Marsden (1970) 2 Cal.3d 118. During his
Marsden hearing, defendant claimed that he had received
ineffective assistance of counsel when he entered his plea. He
asserted that counsel simply told him where to initial on the plea
form, and that he had not completed reading the form when he
was called into court to give his plea. The court responded that,
regardless of the plea form, the reporter’s transcript indicated the
trial court went over all of defendant’s rights with him “very
clearly and explicitly and thoroughly.” Defendant then said that
4
was denied. The court reviewed the plea transcript and
concluded this was merely an instance of buyer’s remorse.
Defendant received the agreed-upon sentence of four years.4 He
filed a timely notice of appeal.
DISCUSSION
The sole issue on appeal is whether defendant actually
admitted the prior strike. When a defendant has been charged
with having suffered a prior conviction, and enters a plea to a
charged offense, “he or she shall be asked whether he or she has
suffered the prior conviction.” (§ 1025.) Here, defendant was
asked in open court. He responded, “I admit they say I have one,
yes.”
In the analogous area of a plea of guilty, “[i]n most cases, a
defendant may enter a plea of guilty without any particular
incantation. [Citations.] ‘A defendant’s expression of guilt, in
order to constitute a plea of guilty, must be made in response to a
question by the court as to how the defendant pleads and must be
couched in language indicating that the defendant is formally
making a plea rather than merely making an informal and
he had since spoken with another attorney. “They were telling
me the same thing. In other words, I pleaded when I shouldn’t
have pleaded at the time because – I mean, I can’t explain it, but,
yes, I feel like I want to withdraw my plea.” Defendant’s counsel
agreed that defendant had not finished initialing and signing the
plea form when he entered court, but explained that, before that
time, she had gone over the form with him line by line in detail.
The court denied the Marsden motion.
4 Significantly, although defendant raised numerous
complaints at sentencing, he did not suggest that he had not, in
fact, admitted the prior strike.
5
spontaneous statement as to his guilt.’ [Citation.]” (In re Moss
(1985) 175 Cal.App.3d 913, 925.) A written plea form, indicating
a desire to plead guilty, can be “sufficient to establish an actual
plea of guilty.” (Id. at p. 925.)
Here, defendant’s plea form indicates a desire to admit the
prior. He initialed the “Other Terms” section which specifically
provided for admitting the strike and a doubled sentence. In
open court, he admitted that this was part of the agreement.
When asked if he admitted the prior, he ultimately said “yes,”
although he prefaced the admission with, “I admit they say I
have one . . . .” Taken together, we conclude defendant desired
to, and did, admit the prior strike.
DISPOSITION
The judgment is affirmed.
RUBIN, P.J.
WE CONCUR:
BAKER, J.
KIM, J.
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