Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026178
BLEASE , J.
Defendant appeals from his conviction after he entered a negotiated plea of nolo contendere (hereafter no contest) to two counts of continuous sexual abuse of a child under the age of 14 years. (Pen. Code, § 288.5, subd. (a).) Consistent with his plea agreement, he was sentenced to an aggregate prison term of 32 years comprised of two 16-year full term consecutive sentences and was ordered to pay a $20 court security fee on both counts. (§ 1465.8.)
All further section references are to the Penal Code unless otherwise specified.
Defendant was charged in an 11 count information with molesting two victims under the age of 14 years as follows: two counts of lewd and lascivious conduct (§ 288, subd. (a); counts 1, 2), two counts of continuous sexual abuse of a child (§ 288.5, subd. (a); counts 3, 4), five counts of oral copulation of a child who was 10 years younger than defendant (§ 288a, subd. (c)(1); counts 5-9), aggravated sexual assault of a child by committing forcible rape (§§ 269, subd. (a)(1) and 261, subd. (a)(2); count 9), and contributing to the delinquency of a minor. (§ 272, subd. (a)(1); count 11.)
On appeal defendant contends the record fails to show a factual basis for his plea and imposition of the security fee is a prohibited retroactive application of the statute that violates the ex post facto clauses of the federal and state constitutions.
We find no error and shall affirm the judgment.
Since defendant entered a plea of no contest and stipulated that the court could take facts from the probation report, we summarize the pertinent facts contained in the probation report.
Defendant and his wife adopted S.M. in 1994 when she was five years old. She had been sexually abused prior to her adoption. Defendant molested her from the ages of nine to 13 years by touching her breasts and when she was 10 or 11 years-old he began having her “suck on his penis” 30 to 50 times. The molestations ceased when S.M. was 13 years old after she told defendant to stop.
Defendant and his wife also adopted S.M.’s younger sister, B.M. Defendant began molesting B.M. when she was nine years old and continued to do so until shortly before he was arrested in 2006, when she was 13 years old. Initially, he touched her breasts and buttocks. On a later occasion, he raped her in her bedroom and raped her a second time a month later. He also had her give him “hand jobs” and offered to pay her $20 for a “hand job,” although she refused to do it for money. During these molestations, defendant smoked marijuana and gave some to B.M.
When interviewed by the police and confronted with recorded telephone conversations between himself and the two victims, defendant admitted that he had S.M. orally copulate him and that he had touched both girls on their breasts and buttocks. When interviewed by the probation department, defendant admitted having S.M. orally copulate and masturbate him and touching her buttocks. He also admitted touching B.M. on her breasts and buttocks, but denied raping her or having her masturbate or orally copulate him.
DISCUSSION
I.
The Record Contains a Probation Report That Shows A Factual Basis for the Plea
Relying on People v. Holmes (2004) 32 Cal.4th 432 (Holmes), defendant contends his conviction must be reversed because the record fails to show a factual basis for his pleas of no contest. Respondent contends this claim has no merit because the trial court properly relied on the probation report, which contains an adequate factual basis. We agree with respondent.
Defendant requested and was granted a certificate of probable cause to challenge the legality of his plea.
When taking a plea of no contest to an accusatory pleading charging a felony, 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.” (§ 1192.5; Holmes, supra, 32 Cal.4th at p. 442.) This duty applies only to conditional pleas, which are negotiated pleas that specify a particular disposition. (People v. Hoffard (1995) 10 Cal.4th 1170, 1174, 1181 (Hoffard).)
The court in Holmes considered the scope of the inquiry required by section 1192.5. “[T]he trial court must garner information regarding the factual basis either from the defendant or defense counsel. 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].” (Holmes, supra, 32 Cal.4th at p. 442, italics added.)
The italicized language states that an “adequate factual basis” may be established by the stipulation of defendant’s counsel to a “particular document” in the record, which may include a “probation report.”
The purpose of the inquiry rule 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.’” (People v. Tigner (1982) 133 Cal.App.3d 430, 432-433; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576.) The rule also guards against an innocent defendant pleading guilty in order to avoid “‘the disparity in punishment between conviction by plea and conviction at trial.’” (Hoffard, supra, 10 Cal.4th at p. 1182.)
Defendant entered a negotiated plea that specified the punishment. The trial court was therefore obligated under section 1192.5 to make an inquiry “‘to satisfy itself . . . that there is a factual basis for the plea.’” (Hoffard, supra, 10 Cal.4th at p. 1181.) The record contains a probation report that establishes the factual basis.
The record contains a plea form signed by defendant. One paragraph states, “I stipulate there is a factual basis for my plea(s) . . . and I further stipulate the court may take facts from probation reports, police reports or other sources as deemed necessary to establish the factual basis.” The form includes an attorney statement signed by defense counsel, which states in part that “I have discussed the facts of the defendant’s case with [defendant] and explained the consequences of his/her plea, the elements of the offense, and the possible defenses. I concur in this plea and the defendant’s decision to waive constitutional rights.” (Italics added.)
The form was also signed by the prosecutor and includes the court’s finding and order, which bears the court’s signature, dated the date of the plea hearing. The court’s written finding and order state as follows: “The court, having reviewed this completed plea form, and having questioned the defendant concerning the defendant’s constitutional rights, finds that defendant has voluntarily, expressly, explicitly, knowingly understandingly, and intelligently waived his/her constitutional rights. The court finds that defendant’s plea(s) [and admission(s)] are freely and voluntarily made, that defendant understands the nature of the charges and the consequences of the plea(s) [and admission(s)], and that there is a factual basis for the plea(s) . . . . The court accepts defendant’s plea(s) . . ., and the defendant is hereby convicted based thereon.”
At the hearing on the plea, the trial court did not make an oral examination of defendant or an inquiry of counsel with respect to the factual basis. Instead, counsel stipulated to a factual basis but without stipulating to “a particular document” that set forth the basis. For these reasons the oral inquiry did not conform to Holmes. However, because the plea form indicates that defendant stipulated to a factual basis based upon the probation report and other sources, and counsel concurred in his plea, counsel necessarily stipulated that a factual basis would be found in the referenced documents.
While the probation report had not yet been prepared when the trial court accepted the plea, the plea was conditional. Consequently, the trial court could have withdrawn its approval of the plea at the sentencing hearing had it found the factual basis was inadequate (§ 1192.5) and it did not do so. As stated, the Supreme Court in Holmes included probation reports in the list of “particular documents” to which defense counsel may stipulate. Because probation reports are generally not prepared until after a conditional plea is entered, the Supreme Court’s approval of probation reports for this purpose suggests that when counsel stipulates to the probation report for the factual basis, the trial court may make its determination as to the adequacy of the factual basis subsequent to its initial acceptance of the plea.
Indeed, that is what occurred here. At the sentencing hearing, the trial court noted that it had received, read, and considered the probation report and then confirmed its earlier finding that there was a factual basis for defendant’s plea.
On appeal we may review the record to determine whether there is an adequate factual basis. We have conducted that review and conclude the facts contained in the probation report provide a solid factual basis for defendant’s pleas.
Defendant pled no contest to two counts of continuous sexual abuse of a child under the age of 14 years. (§ 288.5, subd. (a).) That offense is committed inter alia, by one who resides in the same home with a minor child, who over a period of time, not less than three months in duration, engages in three or more acts of lewd and lascivious conduct as defined in section 288, on a child under the age of 14 years. (Ibid.)
As detailed ante, the probation report indicates that defendant engaged in multiple sexual acts with his adopted daughters from the time they were 9 years of age until they were 13 years. Those acts included oral copulation with S.M. and touching the breasts and buttocks of both children. While defendant alleged in his request for a certificate of probable cause that he is guilty of only one of the two counts to which he pled no contest, the probation report discloses that he admitted to the police and to the probation officer that he had S.M. orally copulate him and touch his penis, that he touched the breasts and buttocks of both children, and he knew his conduct was wrong.
Thus, we conclude there is a factual basis for the pleas based upon the facts and admissions contained in the stipulated probation report and that the policy underlying Holmes was therefore met.
II.
Court Security Fee
Defendant contends the $20 security fee imposed pursuant to section 1465.8 on count four violates the statutory presumption against retroactive laws and the proscription against ex post fact clauses of the United States and California Constitutions because he committed the offense prior to the effective date of the statute. Respondent contends defendant waived this claim and that it has no merit because imposition of the security fee on defendant is a prospective application of the statute and the statute is not penal in nature.
We reject respondent’s assertion of waiver. (People v. Zito (1992) 8 Cal.App.4th 736, 741-742 [failure to raise an ex post facto claim in the trial court did not forfeit the claim.]
After the parties filed their briefs, the California Supreme filed its decision in People v. Alford (2007 42 Cal.4th 749, in which the court rejected the same claim raised by defendant herein. We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Both the United States and California Constitutions prohibit the passage of ex post facto laws (U.S. Const., art. 1, § 10; Cal. Const., art. 1, § 9) and the courts have interpreted the state clause in a manner that is consistent with the federal clause. (Alford, supra, 42 Cal.4th at p. 756.) The ex post facto clause prohibits “‘laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.”’” (People v. Grant (1999) 20 Cal.4th 150, 158; Collins v. Youngblood (1990) 497 U.S. 37, 41-42 [111 L.Ed.2d 30, 38].)
The high court in Collins defined an ex post facto law as “‘any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.’" (Collins v. Youngblood, supra, 497 U.S. at p. 42 [111 L.Ed.2d at p. 39].)
Section 1465.8, subdivision (a)(1) states: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, 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.”
Section 1465.8 was added to the Penal Code by Assembly Bill No. 1759 as an urgency measure, which became effective August 15, 2003. (Stats. 2003, ch. 159, §§ 25, 29.) Defendant was convicted and sentenced on May 2, 2007, and as the Supreme Court found in Alford, supra, 42 Cal.4th at page 754, “[s]ection 1465.8’s legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date.” Since section 1465.8 became effective prior to the date of defendant’s conviction, it is applicable to him.
Moreover, the court security fee is not penal in nature. Because it is only a surcharge enacted as part of an emergency budgetary measure for the nonpunitive purpose of funding court security, it does not violate the ex post facto clause. (Alford, supra, 42 Cal.4th at pp. 756-759.) Defendant’s claim therefore fails.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P. J., NICHOLSON , J.