Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F112
DUARTE , J.
Defendant Charles Leroy Brown pled guilty to numerous counts of sexually abusing minors and was sentenced to an aggregate term of 20 years in state prison. Defendant now appeals his conviction, claiming that his plea lacks sufficient factual basis. We disagree and shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2009, Trinity County Sheriff’s Deputy Fackrell received a report that children were being molested by defendant. Deputy Fackrell spoke with the mother of victim number three (V-3), who reported that her son and two others were being molested by defendant.
We have gleaned our summary of the offense conduct from that set forth in the probation report, which information was derived from the Trinity County Sheriff’s Department Report No. 09-00706 and related reports.
Deputy Fackrell spoke with all three alleged victims about the allegations.
Victim number one (V-1) said defendant touched V-1’s penis “on top of his clothing but not underneath.” V-1 also said that approximately 10 times, defendant grabbed V-1’s hand and made V-1 rub defendant’s naked penis up and down. Once, V-1 said, defendant “put his penis in [V-1’s] butt.”
Victim number two (V-2) described how defendant sucked on V-2’s penis and grabbed V-2’s head in an attempt to make V-2 suck defendant’s penis. V-2 also said defendant tried to make V-2 put his penis “inside [defendant’s] butt,” but V-2 refused; though V-2 admitted that he did put his penis “into [defendant’s]” once. V-2 reported that defendant attempted to have sex with him on three separate occasions, and put his penis in V-2’s mouth on two occasions.
Victim number three (V-3) first told Deputy Fackrell that he never had any sexual contact with defendant. V-3 said defendant touched V-3’s penis “on the outside of his pants but never skin on skin.” V-3 did say that defendant repeatedly asked V-3 to have sex with him, defendant “jacked off” in front of V-3, and V-3 let defendant “put his penis in [V-3’s] butt.” V-3 also described how defendant would walk around naked and try to get V-3 to look at defendant’s penis.
Deputy Fackrell then spoke to defendant. Defendant admitted to having sexual contact with V-1 and V-2, describing the contact as “anal sex and sexual contact with hands.” Defendant denied any sexual contact with V-3.
Defendant was subsequently arrested and charged with one count of continuous sexual abuse of V-1 (Pen. Code, § 288.5, subd. (a) (count one)); five counts of sodomy with V-2 (§ 286, subd. (b)(1) (counts two through six)); two counts of oral copulation with V-2 (§ 288a, subd. (b)(1) (counts seven and eight)); continuous sexual abuse of V-3 (§ 288.5, subd. (a) (count nine)); and possession of child pornography (§ 311.4, subd. (d) (count ten)).
Further undesignated statutory references are to the Penal Code.
It was further alleged that defendant committed an offense specified in section 667.61, subdivision (e)(5), against more than one victim, and that, pursuant to section 1203.066, subdivision (a)(8), the victims in the alleged offenses were under 14 years old.
At the plea hearing, both parties stipulated that the factual basis for the plea was Trinity County Sheriff’s Department Report No. 09-00706.
Defendant then pled guilty pursuant to a plea agreement to one count of continuous sexual abuse of V-1, five counts of sodomy with V-2, and one count of oral copulation with V-2. Defendant and the People agreed to dismissal of the remaining charges and a stipulated term of 20 years in state prison.
Defendant subsequently moved to withdraw his plea; his motion was denied. At sentencing, defendant received the agreed-upon term of 20 years in state prison. The remaining charges were dismissed--count nine, with a Harvey waiver. Defendant was awarded 397 days of custody credit (346 actual days and 51 conduct days) and ordered to pay various fines and fees. Defendant sought and received a certificate of probable cause.
People v. Harvey (1979) 25 Cal.3d 754.
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to presentence conduct credit, as he was committed for a serious felony, continuous sexual abuse of a child. (§§ 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010], and 1192.7, subd. (c)(35).)
DISCUSSION
Citing People v. Holmes (2004) 32 Cal.4th 432 (Holmes), defendant contends the trial court erred by not including Trinity County Sheriff’s Department Report No. 09-00706 in the record, given that it contained the stipulated factual basis for his plea. In Holmes, our Supreme Court held that section 1192.5 requires the trial court, when accepting a guilty or no contest plea, to determine that there is a factual basis for that plea. (Holmes, supra, 32 Cal.4th at p. 432.) Although the preferred method of establishing a factual basis for a plea is to query the defendant regarding the facts and circumstances surrounding his or her offense(s), the court may also rely on reference to documents such as police reports or probation officers’ reports, or the preliminary hearing transcript, for example, to establish sufficient factual basis for defendant’s plea. (See id. at p. 441, fn. 8.) In People v. Willard (2007) 154 Cal.App.4th 1329, we held that the document(s) used to establish the factual basis for the plea must be included in the record. (People v. Willard, supra, 154 Cal.App.4th at p. 1335.)
Here, the trial court accepted a stipulation by both counsel that “the factual basis is contained in Trinity County Sheriff’s Department Report 09-00706....” However, this particular report was not ordered included in the record and was not, apparently, made a part of the record at any time. This was error. Given the particular facts and circumstances of this case, we conclude that the error was harmless as to the plea in its entirety.
The People assert that any error was invited. We disagree, but agree that the error was harmless, as discussed ante.
“A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea.” (Holmes, supra, 32 Cal.4th at p. 443.) Here, the content of Report No. 09-00706 is recited in detail in the probation officer’s report, which is included in the record on appeal.
Defendant contends the probation officer’s report is inadequate to establish the factual basis for his plea, because “while [defendant] pled guilty to five counts of sodomy, the pre-sentence report merely describes conduct that is consistent with two of those counts.” We disagree.
In determining whether there is a sufficient factual basis to support a plea of guilty, “we are not looking for evidence sufficient to support a conviction in a trial after a not guilty plea. Instead, we are seeking to determine whether the reports contain sufficient information upon which the trial court could conclude there was a prima facie factual basis for the charges.” (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1579-1580.)
Here, the probation report clearly states that the facts related to defendant’s crimes are summarized from Report No. 09-00706. Included in that summary is defendant’s admission that he had sexual contact with V-2, including anal sex (i.e., sodomy). The summary further includes V-2’s description that he “put his penis in [defendant’s] butt” on one occasion and defendant tried at least three times to have sex with him.
While this recitation may be insufficient to convict defendant, beyond a reasonable doubt, of five counts of completed sodomy with V-2, it is sufficient to present a prima facie factual basis for each charge. (People v. Wilkerson, supra, 6 Cal.App.4th at p. 1580.) Because the record supports the trial court’s finding that there was a factual basis for each of the counts to which defendant pled, the failure to include Report No. 09-00706 in the record was harmless error.
Despite our ruling today, we remind the parties as well as the trial court that when a defendant is not directly queried by the court or the prosecutor, on the record, regarding a factual basis for his or her guilty or no contest plea, any documents containing that factual basis need be included in the record. This is no longer merely good practice; it is the law.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE , Acting P. J., BUTZ , J.