Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF095178A
RAYE, J.In July 2005 defendant Donald Lee Hoak pled guilty to the commission of a lewd and lascivious act with a child under the age of 14. (Pen. Code, § 288, subd. (a).) In April 2009, following several grants and revocations of probation, he was committed to state prison for the low term of three years.
All further statutory references are to the Penal Code.
On appeal, defendant contends the trial court abused its discretion by concluding that he had violated the terms of his probation. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because the underlying offense was adjudicated by plea, our statement of facts is taken from the probation officer’s report.
Defendant, aged 69 at the time of the offense, is the grandfather of the four-year-old victim. In February 2005 she spent a day with her grandparents. After she used the bathroom, defendant helped her wipe her “‘bottom’” and her “‘pipi.’” She knew that it was wrong for “‘boys to help girls in the bathroom.’” To illustrate the incident using a doll, the victim “jammed her two fingers back and forth in the doll’s vaginal area.” She told defendant to stop and that it hurt, but he continued until she called her grandmother for help.
The victim’s father believed that two of his sisters (the paternal aunts) had been victims of similar acts during their youth. The paternal aunts confirmed to law enforcement that defendant had molested them.
During an interview with law enforcement, defendant admitted that he had had sex with the paternal aunts, but he denied any inappropriate behavior with his granddaughter.
In March 2005 defendant pled no contest to the commission of a lewd and lascivious act upon a child in exchange for a promise of no state prison at the outset. The prosecutor stated the factual basis as follows: “The facts in this case is [sic] the defendant Donald Hoak put his finger on the vagina of a four-year-old child. This occurred in San Joaquin County. This was his granddaughter. This is a one-incident event.”
In an ensuing interview, defendant told the probation officer, “‘I didn’t do what they have me in here for.’” He continued, “‘The day this supposedly happened to my granddaughter, I wasn’t even home that day. I was gone most of the day. Me and my grandson.’” The probation report recommended that probation be denied.
After reviewing the probation report and a section 288.1 report that found defendant at risk to reoffend, the trial court rejected the plea agreement and allowed defendant to withdraw the plea.
In July 2005 defendant pled guilty to the same offense. The prosecutor stated the factual basis as follows: “What the defendant did at a location in San Joaquin County is he placed his finger on the vagina of his four year old granddaughter and this occurred on February 19 of 2005.” Contrary to the Attorney General’s argument, this statement of factual basis did not include language that the trial court subsequently recited from the criminal complaint when taking defendant’s plea. Thus, the factual basis did not provide that the vagina was touched with any criminal intent.
Imposition of sentence was suspended and defendant was placed on probation for five years on conditions including participation in, and successful completion of, a program of sexual offender treatment.
In March 2006 the probation officer alleged that defendant had violated his probation in that he had been terminated from his treatment program “for a refusal to engage in treatment.” In July 2006 defendant admitted the violation and was sentenced to state prison for the low term of three years. Execution of sentence was stayed on the condition that he “successfully complete the counseling program.” The disposition required him to “fully participate” in counseling: “specifically he’s going to have to admit the conduct for which he was” placed on probation, including “[w]hatever the counselor wants. If it includes an admission of the conduct for which he was convicted, he’ll have to admit it.” Defendant indicated he was willing to do that.
In April 2007 the probation officer alleged that defendant had violated his probation in that the treatment program indicated it was “not able to provide treatment to the defendant as a result of his unwillingness to accept responsibility for his actions.” In June 2007 defendant admitted the violation and the trial court reinstated probation “for the last time” with the direction that he “start over” in a different treatment program. The court warned defendant: “Whatever program he goes to, he must successfully complete it. That means being upfront and honest and admitting the violation, that’s part of it. And if he doesn’t, he’ll be in state prison for three years. And the prognosis was poor from the physicians that have done the [section 288.1] examination, so you’ve got to be painfully honest to get off of probation.”
In December 2007 the probation officer alleged that defendant had violated his probation in that he had been terminated from his treatment program for having “never wavered from his initial statement of not molesting the victim.” In April 2008 defendant admitted the violation.
In December 2008 proceedings were suspended and defendant was placed in a diagnostic facility pursuant to section 1203.03.
In April 2009 probation was revoked and terminated, and execution of the prison sentence was ordered.
DISCUSSION
Defendant contends the trial court abused its discretion when it found him “in violation of his probation terms” in April 2008 and “sen[t] him to state prison” in April 2009. Defendant reasons that the trial court was aware he had denied committing a crime; the factual basis advanced for the plea did not define a crime; and finding him in violation of probation for having refused to admit a crime for which there was no factual basis was the functional equivalent of “simply delaying a prison sentence.” We are not persuaded.
We start with defendant’s argument regarding the factual basis for the plea. “Before accepting a guilty or no contest plea pursuant to a plea agreement in a felony case, the trial court is required to determine that a factual basis for the plea exists. [Citations.] ‘The purpose of the requirement 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.’ [Citation.] A defendant is not required to personally admit the truth of the factual basis of the plea, which may be established by defense counsel’s stipulation to a particular document, such as a police report or a preliminary hearing transcript. [Citation.]” (People v. French (2008) 43 Cal.4th 36, 50-51.)
Defendant correctly notes that both statements of factual basis were silent as to the intent with which he had touched his granddaughter’s vagina; neither claimed that he had acted with lewd and lascivious intent. He reasons that the prosecutor’s July 2005 statement of factual basis must be read in light of the probation report’s statement that defendant had wiped his granddaughter’s genital region after she used the bathroom; “[i]t was therefore not unexpected that [his] fingers may have come in contact with his granddaughter’s vagina.”
However, the probation report went on to note that the victim had illustrated the incident using a doll; she “jammed her two fingers back and forth in the doll’s vaginal area.” This illustration did not depict a kindly grandfather dutifully concerned with his granddaughter’s hygiene; rather, it depicted an opportunistic grandfather victimizing his young granddaughter with lewd intent. The trial court was entitled to view the factual basis statements’ silence on the issue of intent as mere oversights by the prosecutor and not as concessions that lewd intent could not be proved.
Defendant relies on the fact that he chose to plead guilty despite protesting his innocence in order to avoid a possibly harsher sentence. (Citing North Carolina v. Alford (1970) 400 U.S. 25, 31-39 [27 L.Ed.2d 162].) However, notwithstanding his protestation of innocence, his guilty plea constituted a conclusive admission of every element of the offense, including the fact that he acted with lewd intent. (People v. Lobaugh (1987) 188 Cal.App.3d 780, 785.) As a result of the plea, defendant was ordered to “participate in and successfully complete any program of sexual offender treatment... as directed by the probation officer.” The plea furnished an adequate basis for this probation condition, and defendant did not object that his protestation of innocence somehow made the discretionary condition improper. Thus, any such contention is forfeited. (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) In any event, the holding of Alford is that the defendant must accept the consequences of the guilty plea notwithstanding the protestation of innocence. (North Carolina v. Alford, supra, 400 U.S. at pp. 31-39.)
The probation condition that defendant successfully complete the treatment program required him to do what the therapist determined was necessary to succeed in the program. The therapist determined that this included his acknowledgment of having acted with lewd intent. Defendant does not explain how he could succeed in treatment for the commission of a lewd act while disputing that any such act had occurred, thus rejecting the entire factual predicate for the treatment. Defendant’s contention that nothing in the probation terms required him to acknowledge more than had been stated in the statement of factual basis has no merit.
For these reasons, the initial (July 2006) revocation of defendant’s probation for failing during treatment to acknowledge the commission of a lewd act, and thus failing to successfully complete the treatment program, was not an abuse of discretion.
Thereafter, each reinstatement of probation (July 2006 and June 2007) expressly required defendant to admit the lewd conduct. Defendant never objected that these discretionary conditions of probation exceeded the court’s jurisdiction or were somehow improper. (Scott, supra, 9 Cal.4th at p. 354.) Rather, in July 2006 he expressly agreed to do ‘[w]hatever the counselor wants.” In June 2007 he accepted reinstatement of probation after being warned by the court that he must be “upfront and honest” and must “admit[] the violation,” i.e., the lewd conduct.
Thus, regardless whether acknowledgment of the lewd act was a condition of defendant’s original probation in 2005, it surely was a condition of his reinstated probation in 2006 and 2007. For that reason alone, the trial court did not abuse its discretion when, following defendant’s continued refusal to acknowledge a lewd act, it found him “in violation of his probation terms” in April 2008 and “sen[t] him to state prison” in April 2009.
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to credit, as he was committed for a serious felony and required to register as a sex offender. (Pen. Code, § 4019, subds. (b) & (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J. CANTIL-SAKAUYE, J.