Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. SS051792B, SS063116A
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
In case No. SS051792B, on August 10, 2005, defendant Robert Pence pleaded no contest to burglary (Pen. Code, § 459). On September 7, 2005, he was placed on probation for three years.
In the information in case No. SS051792B, defendant was charged as “Robert Pence.” In the information in case No. SS063116A, defendant was charged as “Robert Lee Pence II.” The abstract of judgment for the two cases identifies defendant as “Robert Lee Pence.”
All further statutory references are to the Penal Code unless otherwise indicated.
In case No. SS063116A, on March 29, 2007, defendant pleaded no contest to a lewd act upon a child (§ 288, subd. (a)). He was sentenced to six years in prison and ordered to pay a fee and fines, including $1,340 “under section 290.3.”
Based on his no contest plea in the lewd act case (No. SS063116A), defendant was found in violation of probation in the burglary case (No. SS051792B). He was sentenced to two years in prison in the burglary case, with the term to run concurrent to the term in the lewd act case.
On appeal in the lewd act case (No. SS063116A), defendant contends that his no contest plea should be set aside because the trial court failed to make an inquiry into the factual basis for the plea and the record does not contain a factual basis for the plea. He also contends that the fine under section 290.3 is incorrect and must be reduced.
In the burglary case (No. SS051792B), defendant contends that because his plea in the lewd act case must be set aside, and because no other basis exists for a finding that he violated probation in the burglary case, the judgment in the burglary case must be reversed.
For reasons that we will explain, we will reverse and remand the matter to permit defendant to withdraw his no contest plea in the lewd act case (No. SS063116A) and we will reverse the judgment in the burglary case (No. SS051792B).
II. FACTUAL AND PROCEDURAL BACKGROUND
No. SS051792B – The Information, Plea, and Grant of Probation
On July 22, 2005, defendant was charged by information No. SS051792B with commercial burglary (§ 459; count 1), possession of burglar’s tools (§ 466; count 2, a misdemeanor), and petty theft with a specified prior conviction (§§ 666, 484, subd. (a); count 3). On August 10, 2005, he pleaded no contest to burglary (count 1) on the condition that he receive felony probation or a reduction of the charge to a misdemeanor. The remaining counts were taken under submission for dismissal at the time of sentencing, and defendant entered into a Harvey waiver regarding two other “open misdemeanor cases.” Defendant also acknowledged that he would be admitting a violation of probation in another case.
People v. Harvey (1979) 25 Cal.3d 754.
At a hearing on September 7, 2005, the court denied defendant’s request to reduce the burglary charge to a misdemeanor and granted felony probation for three years with various terms and conditions. Defendant was ordered to serve 150 days in county jail, with 86 days credit. The remaining two counts were dismissed. The court also disposed of three other cases involving defendant.
On April 7, 2006, the probation department filed a petition alleging that defendant violated probation by, among other things, failing to report on March 27, 2006. The petition further stated that defendant’s whereabouts were unknown. On August 9, 2006, defendant admitted the probation violation for failure to report. On October 27, 2006, defendant’s probation was reinstated on the same terms and conditions, and he was ordered to serve 170 days in county jail, with 170 days credit.
It is not clear from the record on appeal when defendant’s probation was revoked. The probation officer’s supplemental report indicates that defendant’s probation was revoked on April 19, 2006, when defendant failed to appear in court. The minutes from the hearing on October 27, 2006, indicate that defendant’s probation “is revoked and reinstated” that same day.
On December 22, 2006, the probation department filed a petition alleging that defendant violated probation by failing to obey all laws. The petition indicated that defendant was arrested on October 31, 2006, for continuous sexual abuse of a child and four counts of committing a lewd act.
No. SS063116A
The Information and Plea
On January 23, 2007, defendant was charged by information No. SS063116A with one count of continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a); count 1) and four counts of committing a lewd act upon a child under the age of 14 years (§ 288, subd. (a); counts 2-5). The information alleged that defendant committed each crime “on or about January 1, 2004 through December 31, 2004.” (Capitalization omitted.) It appears that defendant waived his right to a preliminary hearing.
On March 21, 2007, the People filed a trial brief regarding the charges against defendant. According to the trial brief, defendant and the minor are cousins, the minor has been raised by defendant’s parents, and the minor refers to defendant as her brother. The minor reported that defendant made her orally copulate him at least three times in 2004. During one incident, he attempted to touch her vagina.
On March 27, 2007, defendant filed a trial brief that contained a brief statement of the minor’s allegations. According to the brief, the “acts reportedly occurred several years ago when [the minor] was about 12 years of age. She is now about 15 years old.” Further, the minor “has alleged several acts in which she has accused him of having had her perform oral copulation on him, and a separate occasion in which the Defendant allegedly attempted to put his hand down her pants to touch her vagina.”
The parties subsequently reached a plea agreement in which defendant would plead no contest to count 2, lewd act upon a child (§ 288, subd. (a)), on the condition that he receive six years in state prison. On March 29, 2007, defendant and his attorney signed a written form entitled “WAIVER OF RIGHTS PLEA OF GUILTY/NO CONTEST.” In the form, defendant indicated, among other things, that he had “discussed the charges, the facts, the possible defenses, and the consequences of [his] plea with [his] attorney”; that he was offering the plea “freely and voluntarily and of [his] own accord and with the full understanding of all matters set forth in the Information and in this Waiver”; and he was “entering a plea of Guilty/No Contest because [he is] in fact guilty.” Defendant’s attorney similarly acknowledged that he had “explained and discussed the facts and possible defenses to the charge(s), and the possible consequences of a plea of guilty or no contest,” and that he “concur[red] in defendant’s decision... to enter a plea of Guilty/No Contest.”
At a hearing on March 29, 2007, the court questioned defendant to ensure that the contemplated plea would be knowing and voluntary. Defendant confirmed that he had read the form that he signed and had talked to his attorney about it. He also acknowledged that by pleading no contest, he would be giving up certain trial rights. In addition, defendant indicated his understanding that by pleading no contest to the lewd act charge, he would be admitting to a violation of probation in the burglary case (No. SS051792B) and the court “probably would” impose concurrent time in the burglary case. Defendant further indicated that he understood the proposed disposition and sentence in the lewd act case and the potential consequences of pleading no contest, including the lifetime registration requirement under section 290. Defendant also confirmed that he was entering into the plea because he “want[ed] to, and nobody [was] forcing [him] to do this,” and no other promises had been made to him other than those stated by the court in the courtroom that afternoon.
The trial court ultimately found that defendant’s plea was knowingly and voluntarily made, that he understood his legal rights, that he gave up his trial rights, and that he understood the consequences. Having made these findings, the court then asked defendant, “[W]hat is your plea to having committed a violation of Penal Code section 288(a), between January 1st and December 31st of 2004? No contest or not guilty?” Defendant responded, “No contest.” After accepting defendant’s no contest plea to count 2 for a lewd act, the court took the remaining counts under submission for dismissal at the time of sentencing, as well as a separate case against defendant, No. SS071156A.
The trial court also found defendant in violation of probation in the burglary case (No. SS051792B) based on his no contest plea in the lewd act case (No. SS063116A).
The Probation Officer’s Report
The probation department prepared a report before defendant’s sentencing. The following factual summary is taken from the probation officer’s report, which is based on a Monterey County Sheriff’s Department Crime/Incident Report that is not a part of the record on appeal.
According to the probation officer’s report, on October 29, 2006, a woman reported to Monterey County sheriff’s deputies that her niece, who was 14 years old, had disclosed that she had been sexually molested by defendant and defendant’s father. Deputies later learned that defendant and the minor are cousins, defendant’s parents are the minor’s legal guardians, and defendant had been raised as the minor’s brother.
Deputies subsequently contacted the minor and defendant’s mother, who is one of the minor’s legal guardians. When initially questioned by sheriff’s deputies, the minor denied any sexual activity between her and defendant or defendant’s father. “[H]owever, she appeared afraid to speak during the questioning.” Shortly after the deputies left the minor’s residence, the deputies were called back. The minor reported that defendant had “stopped by” the residence “approximately one year ago.” Defendant asked her to orally copulate his penis. The minor told him no several times but he persisted. She eventually gave in and orally copulated him because she was scared. Defendant warned the minor that if she told anyone, he would make her orally copulate him again. The minor also reported that there had been two other occasions when defendant ordered her to orally copulate him. She further stated that during one incident, defendant “had attempted to fondle her breasts, and reach down into her pants to touch her vagina.” She told him that she was a virgin and was “on her period” in an attempt to stop him. Defendant ultimately stopped after the minor began to cry and pulled away.
Defendant’s mother, who is one of the minor’s legal guardians, stated that after the deputies had left, she and the minor had spoken to the minor’s aunt, who had made the initial report to deputies, and the minor’s aunt had “talked [the minor] into telling” her (defendant’s mother) what had happened.
During further investigation by the sheriff’s department, the minor stated that in the first encounter with defendant, he had instructed her to give him a “ ‘blow-job.’ ” The minor had cried and asked defendant not to force her to perform the act. Defendant, however, had insisted that she do it. The minor also stated that she had orally copulated defendant at least three additional times over the period of one year.
On October 31, 2006, defendant refused to make any statement to the sheriff’s department regarding the alleged offenses without consulting with an attorney. He was subsequently taken into custody.
During the interview with the probation officer on April 27, 2007, defendant did not make any statement regarding the charged offenses. Defendant and his attorney advised the probation officer that they would be seeking withdrawal of the plea.
The Motion to Withdraw Defendant’s Plea
On June 8, 2007, defendant, through a new attorney, filed a motion seeking to withdraw his no contest plea to the count alleging a lewd act. Defendant argued in the motion that his plea and waiver of rights were not voluntary, knowing, and intelligent. In a declaration, defendant stated that his “attorney at the time of the plea rushed the explanation of pleading no contest and having to register as a sex offender”; his attorney “did not keep [him] fully informed during the course of the case” and “[b]eing uninformed contributed to [defendant] panicking and accepting the plea”; his attorney “pressured [him] to plead, and did not adequately explain the consequences of the plea”; defendant would not have entered the plea if he “had more time to contemplate the weight” of the plea; he is “factually innocent of all allegations in this case”; and he “did not understand the adverse gravity of having to register as a sex offender for the remainder of [his] life.”
The People filed written opposition on June 11, 2007. The People explained that during the pendency of the case, “additional charges alleging that the defendant attempted to dissuade witnesses in this case were filed on March 14, 2007, as [c]ase No. SS071156A.” The People asserted that while the lewd conduct case was set for trial on March 26, 2007, “[a]s of the calendar call on March 22, 2007, the People stated that they would be unable to proceed due to the efforts of” defendant, his parents, and his sister “to dissuade the complaining witness in this case. The People stated their intention to dismiss and re-file the case, so the complaining witness would have additional time to change her mind about testifying in this matter. [¶] At that time, rather than re-start the process, with the possibility of force allegations being added to the new filing, the defendant elected to enter a plea in this case to one count of Penal Code Section 288(a) for a stipulated 6 years in state prison with the remaining counts in this case, as well as all counts in Case No. SS071156A to be dismissed at the time of sentencing.”
The People also contended that defendant had been given a “substantial period of time to confer with his attorney prior to entry of the plea,” and there was evidence that defendant “completely understood his plea, the consequences and the rights that he gave up.” In making these arguments, the People relied on, among other things, transcripts of defendant’s telephone conversations with his father on March 29 and 31, 2007, while defendant was in jail. The People also contended that defendant was advised by the court about the lifetime sex offender registration requirement at the time he entered his plea.
On June 22, 2007, the trial court indicated that upon reviewing the transcript of the March 29, 2007, hearing regarding defendant’s no contest plea, it appeared “there was no specific factual basis either admitted by [defendant] or agreed to by his attorney and the District Attorney.” The court considered this to be “an issue as far as the motion to withdraw the plea is concerned” and requested supplemental briefing.
In further briefing filed August 2, 2007, the People argued that a failure to inquire into the factual basis for the plea was harmless error. The People contended, that based on the probation report and the transcripts of jail calls made by defendant after the entry of his plea, there was a factual basis for the plea.
Defendant argued in his supplemental briefing, filed August 3, 2007, that the record did not contain factual information to support the plea. He further argued that transcripts of jail calls made after he entered his plea could not be used to establish the factual basis for the plea.
At a hearing on August 8, 2007, the trial court denied defendant’s motion to withdraw his plea. The court stated that over the course of the case, the court had “discussed the case fairly extensively with the attorneys.” The court further stated that defendant’s former attorney had been given “at least two hours, if not upwards of four to five hours to discuss the case” with defendant. According to the court, on the day the plea was entered, “the case had been on calendar call... at 11 o’clock that morning,” but it “trailed... all throughout the day until the late afternoon,” and defendant’s attorney asked “two separate times... if he could go into the jury room with his client to get a little more privacy and discuss the case with him.” Regarding defendant’s former attorney, the court stated: “I have known [him] for a long time. I know that he’s a competent, thorough attorney. I think that based upon his interaction that I observed with [defendant], and... I understand and appreciate that [defendant] probably felt like he was -- I won’t say he was pressured into entering the plea, but if the case was not resolved that Thursday afternoon, we’d proceed to trial the following Monday, the date that the jury trial had been reset to, and the consequences could have been much more severe as far as resolving the case.” The court eventually concluded that “in light of the totality of the circumstances, and also considering the pre-sentence report” that had been prepared, there was a sufficient factual basis for the plea.
Defendant thereafter filed a petition for writ of mandate and prohibition directing the trial court to grant his motion to withdraw his plea and a request for stay pending writ review. This court denied the petition and request for stay on August 22, 2007.
Sentencing in No. SS051792B and No. SS063116A
Sentencing in the lewd act case (No. SS063116A), and in the separate burglary case (No. SS051792B), was conducted at a single hearing on September 7, 2007. Prior to sentencing defendant, the trial court clarified that “part of [its] reasoning” for denying defendant’s motion to withdraw the plea was based on the waiver form that defendant and his attorney had signed, which indicated that defendant’s attorney had discussed the case and possible defenses with defendant and that both defendant and his attorney “believed that [defendant] had a firm, full understanding of what was transpiring.”
In No. SS063116A, the trial court sentenced defendant to the middle term of six years in prison for count 2, lewd act upon a child (§ 288, subd. (a)). Defendant was ordered to pay a fee and fines, including $1,340 “under section 290.3.” He received custody credit and was ordered to register as a sex offender under section 290. The remaining counts were dismissed, as was a separate case, No. SS071156A, against defendant.
In No. SS051792B, the burglary case, the trial court sentenced defendant to the middle term of two years in prison, to run concurrent to the term in the lewd act case. Defendant received custody credit and was ordered to pay a fee and fines.
Defendant’s Request to Recall the Sentence in No. SS063116A
On September 12, 2007, defendant’s attorney submitted to the trial court a copy of People v. Willard (2007) 154 Cal.App.4th 1329. In an accompanying letter, defendant’s attorney stated that the opinion was being attached for the court’s consideration “to possibly recall” defendant’s sentence in the lewd act case, No. SS063116A.
At a hearing on September 26, 2007, the trial court stayed defendant’s sentence pending further reconsideration. The People filed a brief on October 12, 2007, reiterating their argument that a factual basis existed for defendant’s plea, based on the probation report and defendant’s statements in jail calls after entering his plea.
On October 24, 2007, after hearing further argument from counsel, the trial court denied defendant’s motion to withdraw the plea. The court stated that it had “wrestled” with the issue and that it was a “fairly close issue.” The court acknowledged that “[c]learly the preferable way” in taking the plea would have been to get a stipulation from counsel, a factual rendition from defendant’s attorney, or a statement from defendant as to the factual basis and it was “unfortunate that that did not happen.” The court stated that it “always tr[ies] to take valid pleas” but “sometimes those things don’t happen” and it “apologize[d] for that.”
Turning to the factual basis issue, the trial court reasoned that the purpose for inquiring into the factual basis for a plea, as set forth in People v. Watts (1977) 67 Cal.App.3d 173 (Watts), is to protect against the situation where the defendant, although realizing what he has done, is not sufficiently skilled in the law to recognize that his acts do not constitute the charged offense. The court explained: “I don’t think that is the case here, and I made those findings before. As I stated earlier and it’s part of the record, [defendant] had spent a lot of time with his attorney,... I know at least two or three hours just in court, and was given the opportunity to go into chambers -- or in the jury room to discuss the case privately with him. So I know that he was given more than adequate opportunity to discuss the case with his attorney. [¶] In addition to that, the probation report does reflect the factual basis for the entry of the plea. And as well, the tape recordings of the conversations between [defendant] and his father, from the jail, reflect that [defendant] knew that what he had done or what had transpired was a sufficient basis for him to have entered his plea; he said that he felt that -- in one of the calls, he said that he felt that if he proceeded to trial he probably would have been convicted, and the ramifications or the sentence could have been much more severe than that. And as I said, it would have been much preferable to have gotten either a stipulation and then a reference to a document, but all things considered, I don’t believe that it’s appropriate for this Court to set aside the plea....” The court stated that the previous sentence would “remain in full force and effect.”
Notices of Appeal
The trial court granted defendant’s request for a certificate of probable cause in the lewd act case, No. SS063116A, and on October 30, 2007, the certificate was filed. On November 5, 2007, defendant filed a notice of appeal in the lewd act case. Defendant filed an amended notice of appeal on May 14, 2008, after being granted leave by this court.
Defendant filed a notice of appeal in the burglary case, No. SS051792B, on May 14, 2008, after being granted relief from default by this court.
III. DISCUSSION
Lewd Act Case, No. SS063116A
Factual Basis for Plea
Defendant contends that his no contest plea to the lewd act should be set aside. He argues that the trial court erred by failing to conduct an inquiry that would establish a factual basis for the plea. He asserts that the error was not harmless because “there is a complete absence of any factual basis for the conditional plea in the record.”
When a trial court takes a conditional plea, section 1192.5 requires the court 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.” (§ 1192.5.) Thus, the court “must garner information regarding the factual basis for the plea from either defendant or defense counsel to comply with section 1192.5.” (People v. Holmes (2004) 32 Cal.4th 432, 436 (Holmes).) “If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge [citation], or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. [Citation.] 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. [Citation.]” (Id. at p. 442.)
“The factual basis required by section 1192.5 does not require more than establishing a prima facie factual basis for the charges. [Citation.] It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime [citation], nor does the trial court have to be convinced of defendant’s guilt. (People v. West[ (1970)] 3 Cal.3d [595] at pp. 612-613; In re Alvernaz (1992) 2 Cal.4th 924, 940, fn. 9 [so long as the trial court ascertains a factual basis for the plea, it may enter a plea of guilty or no contest despite the defendant’s claim of innocence.].)” (Holmes, supra, 32 Cal.4th at p. 441, fn. omitted.)
“Conducting a factual basis inquiry before accepting or entering judgment on a guilty plea may further important interests....” (People v. Hoffard (1995) 10 Cal.4th 1170, 1183 (Hoffard).) As our Supreme Court has noted, “a factual-basis inquiry may help to ensure the constitutional standards of voluntariness and intelligence are met. [Citations.] Ascertaining the existence of a factual basis assumes particular importance to the constitutional standard when the defendant’s plea of guilty is coupled with a contradictory claim of innocence. (North Carolina v. Alford[ (1970)] 400 U.S. [25] at p. 38, fn. 10.)” (Hoffard, supra, 10 Cal.4th at p. 1183, fn. 11.) In this regard, “[w]hen it appears to the trial court the danger of an involuntary, unintelligent, or inaccurate plea is particularly great—for example, when the defendant maintains his innocence or expresses ambivalence about admitting guilt, or when there is reason to believe the defendant is under unusual extrajudicial pressure to plead—the importance of inquiring into a factual basis is correspondingly high.” (Id. at p. 1184, fn. 12.)
The factual basis inquiry also “protect[s] 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.” (Watts, supra, 67 Cal.App.3d at p. 178; see also Holmes, supra, 32 Cal.4th at p. 440, fn. 5 [noting that a stipulation by the defendant’s attorney to the factual basis for the plea would be “consistent” with the purpose of section 1192.5, because the attorney is “well suited” to determine whether the defendant’s acts constitute the charged offense].) In addition, conducting a factual basis inquiry “make[s] a record against possible appellate or collateral attacks on the plea. [Citations.]” (Hoffard, supra, 10 Cal.4th at p. 1183.)
A claim that a motion to withdraw a plea was erroneously denied is reviewed under the abuse of discretion standard. (Holmes, supra, 32 Cal.4th at pp. 442-443.) Likewise, “a trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. [Citation.] 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. [Citations.]” (Id. at p. 443; see also People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576 [“If the trial court fails to make an on-the-record inquiry as to the factual basis for the plea, the appellate court is free to review the record and determine whether the error is harmless, i.e., whether the record contains sufficient information to ensure the defendant committed the acts to which the plea was entered”].)
In People v. Coulter (2008) 163 Cal.App.4th 1117 (Coulter), the Second Appellate District held that “in accepting a guilty plea, a trial court, with the express or implied consent of the defendant, may put the issue of a factual basis for the plea over to the sentencing hearing.” (Id. at p. 1119.) In Coulter, the defendant entered a guilty plea and then did not object when the trial court stated that “ ‘[t]he factual basis will be reserved for the time of sentencing.’ ” (Id. at p. 1120.) The defendant also signed a felony disposition statement, which provided that the trial court could consider police reports or a probation report as the factual basis for the plea. The Court of Appeal observed that conducting the factual basis inquiry at the time of sentencing was a “manner of proceeding” that had been in existence in Ventura County for decades. (Id. at p. 1122.) Further, defendant knew that no probation report was in existence when he entered his plea, and everyone expected that one would be prepared for the sentencing hearing. Because the defendant had “impliedly agreed to this procedure,” the Court of Appeal determined that he was “estopped from attacking it.” (Ibid.) The court reasoned that “[e]ven if there was error, it is subject to a harmless error analysis,” (ibid.) and in the case before it, “any error in the timing of the inquiry [was] harmless” (id. at p. 1119).
Several cases have considered whether a sufficient factual basis was established, and whether any error in that regard was harmless. In Watts, supra, 67 Cal.App.3d 173, the only reference to a factual basis at the time of the defendant’s guilty plea was the following statement by his attorney: “ ‘We have discussed the elements of the charges against him and the possible defenses to those charges, and I have advised him of the law as it relates to the facts of his case. I have advised him of the legal consequences of a guilty plea to this charge and that the possible punishment for this offense is five years to life.’ ” (Id. at p. 180.) The appellate court determined that this statement did not meet the requirements of section 1192.5 but that the error was harmless. The appellate court explained that the trial court had (1) a grand jury transcript setting forth an “ample factual basis” for the guilty plea and (2) a presentence report that “set forth a statement of the offenses,” “recited essentially the same facts,” and included certain admissions by the defendant. (Id. at pp. 180-181.) The appellate court reasoned that these documents established that the defendant had participated in the charged crimes and therefore the trial court’s denial of the motion to withdraw the plea was not an abuse of discretion. (Id. at p. 182.)
In People v. Tigner (1982) 133 Cal.App.3d 430, the appellate court determined that the defendant should have been allowed to withdraw his no contest plea. Although the trial court stated there was a factual basis for the plea, it did not make an inquiry of the defendant, his counsel, or the district attorney. (Id. at p. 433.) The appellate court observed that the presentence report in the record summarized the underlying facts as to each of the counts to which the defendant pleaded no contest, however, defendant “denie[d] any culpability” in the report. (Id. at p. 435.) The appellate court concluded that the report was “insufficient to render harmless the lower court’s failure to obtain a factual basis for appellant’s plea as required by Penal Code section 1192.5. To hold otherwise would, in effect, nullify the mandatory language of the statute.” (Ibid.)
In People v. Mickens (1995) 38 Cal.App.4th 1557, “[c]ounsel stipulated to a factual basis for the plea.” (Id. at p. 1560.) Regarding this bare stipulation, a panel of this court concluded that “the better practice would have been for the trial court to ‘[attempt] to ensure the existence of a factual basis’ for this guilty plea [citation]....” (Id. at p. 1565.) The court concluded the error was harmless, because the contents of a probation report, which was in the record and was based on a police report, “could have supported a factual basis finding.” (Ibid.)
In this case, at the time defendant entered the no contest plea to the lewd act charge, the trial court did not “garner information regarding the factual basis either from the defendant or defense counsel.” (See Holmes, supra, 32 Cal.4th at p. 442.) After subsequently realizing that a factual basis inquiry had not been conducted, the trial court raised the issue with the parties, found the question to be “close,” determined there was a factual basis, and then denied defendant’s motion to withdraw his plea.
At the time the trial court made its determination as to whether a factual basis existed and denied defendant’s motion, the court properly considered the entire record. (See Holmes, supra, 32 Cal.4th at p. 443; People v. Wilkerson, supra, 6 Cal.App.4th at p. 1576; People v. Mickens, supra, 38 Cal.App.4th at pp. 1564-1565.) The court had before it an information charging defendant with a lewd act “on or about January 1, 2004 through December 31, 2004,” upon a child under the age of 14 years. It also had the parties’ trial briefs setting forth their descriptions of the minor’s allegations concerning defendant’s conduct in 2004. Further, the court had defendant’s “WAIVER OF RIGHTS” form, in which defendant stated that he understood all matters set forth in the information, defense counsel acknowledged that he had “explained and discussed the facts and possible defenses to the charge(s)” with defendant, and defendant stated that he was “in fact guilty.” The court also had a probation report, which was based on a report by the sheriff’s department, containing a factual summary of the minor’s allegations regarding defendant’s conduct in approximately 2005 and 2006. Moreover, the trial court had transcripts of defendant’s telephone calls with his father while defendant was in jail. The transcripts indicated that defendant may have entered a no contest plea in order to avoid losing at trial and possibly facing additional time. Lastly, the trial court itself observed that defendant’s former attorney had been given at least two hours and possibly several more to discuss the case with defendant, apparently on the day that defendant had entered his plea.
On appeal, the People argue that the probation report and the transcripts of the jail calls “establish that [defendant] participated in the crime with which he had been charged.” Defendant contends that the probation report is insufficient because it contains no admissions by him and he denied culpability prior to the preparation of the report. Regarding the transcripts of the jail calls, defendant points out that he never said anything about the facts of the case in the calls. He asserts that the transcripts do not contain an “admission indicating culpability” nor do they reflect an “understanding of guilt” by him, and instead they reflect his claim of innocence.
Although, generally speaking, a review of the entire record could support a finding that there was “some basis, ‘in fact,’ ” (Coulter, supra, 163 Cal.App.4th at p. 1122) for a no contest plea to a charge of lewd conduct, we believe this case should be remanded for further hearing for several reasons. Those reasons arise out of the discrepancies in the record as to when the lewd conduct purportedly took place.
First, defendant’s plea conflicts with the facts recited in the probation officer’s report. Defendant pleaded no contest to “having committed a violation of Penal Code section 288(a), between January 1st and December 31st of 2004.” (Italics added.) The information similarly alleges that defendant committed the crimes “on or about January 1, 2004 through December 31, 2004.” Moreover, in their trial briefs, the People and defendant refer to the incidents involving defendant and the minor as having reportedly occurred in approximately 2004.
However, the probation officer’s report (which was based on a sheriff’s department’s report that is not a part of the record on appeal) indicates that the minor reported on October 29, 2006 that defendant made her orally copulate him multiple times beginning “approximately one year ago,” and she later stated that the subsequent incidents occurred “over the period of one year.” Thus, according to the probation officer’s report, which the trial court considered in finding a factual basis for the plea, the incidents occurred between approximately October 2005 and October 2006, rather than in 2004 as pleaded to by defendant.
We observe that the record reflects that the minor’s date of birth is November 14, 1991. Therefore, in order for defendant to have committed a lewd act upon the minor while she was “under the age of 14 years” (§ 288, subd. (a)), the lewd act must have occurred before November 14, 2005. In this case, the probation report indicates that the first allegedly lewd act occurred on approximately October 29, 2005, several weeks prior to November 14, 2005, the date by which the act would have had to have occurred in order to constitute a violation of section 288, subdivision (a).
Second, there is no other source in the record that clarifies the date of the purported lewd act. The preliminary hearing was apparently waived in this case, and there is no grand jury indictment. Although defendant stated in the “WAIVER OF RIGHTS” form, that he was entering the no contest plea because he was “in fact guilty,” he has repeatedly asserted his innocence.
Third, the probation officer’s report highlights an inconsistency in finding that the lewd act took place in 2004 and finding that defendant violated probation in the burglary case (No. SS051792B). The probation officer correctly pointed out that probation in the burglary case began in September 2005. Significantly, the probation officer stated in the report: “According to the Criminal Complaint, the current offenses took place sometime between January 1, 2004, and December [31], 2004. If this time frame is correct, the defendant was not on probation at the time the current offense was committed.”
In sum, against a backdrop of conflicting assertions by defendant as to whether he is innocent or guilty, the trial court’s determination that a factual basis exists for defendant’s no contest plea to a lewd act in 2004 cannot be reconciled with the finding that defendant violated probation in the burglary case, in which probation commenced in September 2005. If the factual basis finding by the trial court was that defendant committed the lewd act in 2004, as reflected in the information, the parties’ trial briefs, and defendant’s plea, then defendant was not in violation of probation and the judgment in the burglary case must be reversed. If the factual basis finding by the trial court was that defendant committed the lewd act in 2005, based on the probation officer’s report, then defendant would have been in violation of probation in the burglary case. However, the count that defendant pleaded no contest to, count 2 alleging a lewd act in 2004, should have been amended so that the factual basis finding would have been consistent with and would have supported defendant’s plea.
Accordingly, we find it appropriate to remand the matter to the trial court to permit defendant to withdraw his plea if he so elects.
Fine Under Section 290.3
In the event defendant elects not to withdraw his no contest plea, we address his contention that the fine imposed under section 290.3 is incorrect. At the sentencing hearing, the trial court ordered defendant to pay $1,340 “under section 290.3.” The abstract of judgment also reflects that defendant was ordered to “[p]ay a fine of $1,340 pursuant to PC 290.3.”
On appeal, defendant argues that at the time of his offense for lewd conduct, section 290.3 authorized a fine of $200 for the first conviction for a specified sex offense. He calculates an additional $440 for penalty assessments on the fine as follows: (1) a 100 percent penalty of $200 under section 1464, subdivision (a); (2) a 50 percent penalty of $100 under Government Code section 76000, subdivision (e); (3) a 50 percent penalty of $100 under Government Code section 70372, subdivision (a); and a 20 percent state
Section 1464, subdivision (a)(1), states: “Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and except as otherwise provided in this section, there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
Government Code section 76000 states in relevant part: “(a)(1) Except as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. [¶]... [¶] (e) The seven-dollar ($7) additional penalty authorized by subdivision (a) shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by Section 76100 as of January 1, 1998, when the money in that fund is transferred to the state under Section 70402. The amount each county shall charge as an additional penalty under this section shall be as follows: [¶]... [¶] Monterey $5.00.”
Government Code section 70372, subdivision (a)(1), states: “Except as otherwise provided in subdivision (b) of Section 70375 and in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including, but not limited to, all offenses involving a violation of a section of the Fish and Game Code, the Health and Safety Code, or the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. This penalty is in addition to any other state or local penalty, including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000.”
surcharge of $40 under section 1465.7, subdivision (a).
Section 1465.7, subdivision (a), states: “A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.”
The People agree that the fine under section 290.3 should be reduced, but they maintain that “remand is necessary as the trial court did not specify the statutory bases for the penalty assessments and it is not possible to determine exactly how the court arrived at the $1,340 figure.”
Section 290.3 currently provides that every person convicted of an offense specified in section 290 must pay “a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction....” Lewd conduct (§ 288) is a crime listed in section 290. (§ 290, subd. (c).) Between 1995 and September 19, 2006, the fine under section 290.3 was $200 for the first conviction and $300 for each subsequent conviction. (Stats. 1994, ch. 866, § 1; Stats. 1994, ch. 867, § 3.5; Stats. 2006, ch. 337, §§ 18, 62, effective Sept. 20, 2006.) Because the fine in section 290.3 is punitive on its face (§ 290.3 [a defendant convicted of a specified offense “shall... be punished by a fine”]), and to avoid the prohibition against ex post facto laws (People v. Alford (2007) 42 Cal.4th 749, 755), the amount of the fine must be determined as of the date of the offense. Accordingly, the maximum fine that could have been imposed on defendant under section 290.3 was $200, assuming his offense occurred between 1995 and September 19, 2006.
The People do not disagree that the penalty assessments identified by defendant apply to the section 290.3 fine. They assert that the trial court “may have applied other statutes” and thus the matter should be remanded so that the trial court “may specify and impose the applicable fine and penalty assessments.”
In order to facilitate review of the penalty assessments imposed in a case, as well as assist in collection efforts, it is important for the trial court to recite the statutory basis for the penalty assessments and, where necessary, make the requisite, underlying factual findings. (See People v. Taylor (2004) 118 Cal.App.4th 454, 456-460; People v. High (2004) 119 Cal.App.4th 1192, 1200.) In this case, in the event that defendant elects not to withdraw his no contest plea, the trial court should impose a fine under section 290.3 after taking into consideration the date of defendant’s offense. The trial court should also state the statutory basis for penalty assessments and, where necessary, make the requisite, underlying factual findings.
Burglary Case, No. SS051792B
The trial court found defendant in violation of probation in the burglary case (No. SS051792B) based on his no contest plea in the lewd act case (No. SS063116A). Defendant argues that because the judgment in the lewd act case must be reversed, there is no basis for a finding that he violated probation in the burglary case. Thus, defendant contends, the judgment in the burglary case must be reversed.
As we have explained, defendant should be permitted to withdraw his no contest plea in the lewd act case. If defendant elects not to withdraw his plea to the charge of a lewd act in 2004, that plea cannot form the basis for a finding that defendant violated probation in the burglary case because defendant was not on probation in the burglary case in 2004. We therefore find it appropriate to reverse the judgment in the burglary case.
IV. DISPOSITION
In case No. SS063116A, the judgment is reversed, and the case is remanded to the trial court with directions that defendant be permitted to withdraw his no contest plea and that further proceedings be conducted as may be appropriate. If defendant elects not to withdraw his no contest plea, the trial court shall impose a fine under section 290.3 after taking into consideration the date of defendant’s offense; state the statutory basis for penalty assessments and, where necessary, make the requisite, underlying factual findings; and as so modified, the judgment shall be reinstated.
In case No. SS051792B, the judgment is reversed, and the case is remanded to the trial court with instructions that further proceedings be conducted as may be appropriate.
WE CONCUR: MCADAMS, J., DUFFY, J.