Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 01F9244
BUTZ, J.Defendant Ike J. Quintana, Jr., who was on probation for child molestation, appeals from an order of the Shasta County Superior Court revoking his probation and imposing a previously stayed eight-year state prison term. He contends the court abused its discretion in refusing to reinstate probation, and that he received ineffective assistance of counsel when his counsel failed to seek to withdraw his admission to one of two petitions for which he was found in violation of probation. Disagreeing, we shall affirm the judgment.
PROCEDURAL AND FACTUAL BACKGROUND
In 2002, based upon defendant’s sexually fondling an 11-year-old female friend of his daughter who was staying overnight, he pleaded guilty to one count of lewd and lascivious conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a)) in exchange for the dismissal of several other molestation counts and a stipulated sentence of eight years, execution of which was stayed pending a seven-year felony probationary term.
Undesignated statutory references are to the Penal Code.
In April 2005, he admitted being in violation of two conditions of his probation by being present at a slumber party for his daughter without having obtained proper authorization (hereafter the party petition). At defendant’s request, the matter was continued for him to present mitigating circumstances pursuant to section 1204.
In June 2005, prior to the section 1204 hearing being held, defendant was charged with another violation of probation--unlawful use of methadone (hereafter the drug petition).
In September 2005, the section 1204 hearing on the party petition was conducted. At the conclusion of the hearing, the court stated it would not revoke probation based on this petition, but intended only to impose local jail time. However, because it was greatly concerned with the drug petition, the court withheld sentencing and, with the parties’ consent, continued the matter to see what would happen with the drug petition.
In November 2005, defendant stipulated to a positive drug test for methadone, but testified he had not knowingly ingested methadone. The court sustained the drug petition.
In March 2006, a section 1204 hearing was conducted on both petitions, the court permanently revoked defendant’s probation and imposed the previously stayed eight-year prison sentence.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion When It Refused to Reinstate Probation
Defendant argues that the trial court abused its discretion in failing to reinstate him to probation by giving “equal consideration” to both the party and drug petitions. In determining not to reinstate probation, defendant claims, the court should not have considered the party petition at all because, for various reasons, there was an insufficient factual basis for his admission to that petition. Without the party petition, he continues, the drug violation does not constitute a sufficient reason to not reinstate probation. The argument fails because defendant’s major premise--that the court considered the party petition as a reason for refusing to reinstate probation--is contrary to the record.
As support for his major premise, defendant cites the following explanation by the trial court for refusing to reinstate probation: “[T]his is his second transgression [(the drug petition)] and I did not revoke probation on the first transgression [(the party petition)] because as I’ve explained a couple times there were problems on our end of that transgression. [¶] But he has after admitting the [first] transgression the next month, a few days later committed a second transgression [(the drug petition)]. [¶] For that reason or perhaps those reasons I’m going to terminate [defendant’s] probation . . . . I’m going to suspend the execution and bring into play the eight-year state prison term.”
The court actually said “second” transgression, however, as the parties acknowledge the court misspoke and meant the “first” transgression.
The court’s use of the word “reasons,” defendant claims, shows that it did consider, although it should not have, the party petition as a reason for refusing to reinstate probation. Defendant misreads the record.
The first reason cited by the court was defendant’s unlawful ingestion of methadone, i.e., the drug petition or second transgression. The second reason was, to the court’s obvious dismay, the incredibly short time period between defendant’s admission to the party petition and his commission of the drug violation, a period of approximately 12 days.
Defendant admitted the party petition violation on April 28, 2005. The drug petition violation occurred on or about May 10, 2005.
That the court did not consider the party petition as a reason for not reinstating probation is shown by its repeated statements, expressed and implied, that it was not going to do so: specifically, (1) the court’s statement made at the conclusion of the section 1204 hearing on the party petition, when it was well aware of the existence of the drug petition, that it would not send defendant to state prison because of that party violation, but would impose only jail time; and (2) the court’s statements made at the sentencing hearing that (a) it was not intending to revoke defendant’s probation based on the party petition; (b) counsel need not argue the facts of the party petition because “that issue had been at least in my mind taken care of”; and (c) the court’s comment to the prosecutor that she need not argue the facts of the party petition as to defendant’s present sentencing.
Since the record makes it abundantly clear that the court did not consider the party petition as a reason for refusing to reinstate probation, defendant’s contention to the contrary must be rejected. Because the court did not consider the party petition in determining whether to revoke defendant’s probation, we need not address, under this argument, defendant’s arguments as to why the court should not have considered the party petition. However, we do address these arguments in section II in light of defendant’s claim of ineffective assistance of counsel.
II. Defendant Was Not Denied Effective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel when his counsel failed to move to withdraw his admission to the party petition. In defendant’s view, counsel should have moved to withdraw his plea to this petition because (1) the court suggested counsel should do so; (2) counsel conceded that the admission “may have been [his] error”; and (3) there was a lack of a factual basis for defendant’s admission. The record does not support these claims.
To establish ineffective assistance of counsel defendant must show both that his counsel’s performance fell below that to be expected of reasonably competent counsel, and that as a result of counsel’s less than adequate performance defendant suffered prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Defendant argues that his counsel should have moved to withdraw his plea because “the trial court told counsel that ‘if [he] entered an admission incorrectly, . . . you need to do a motion to withdraw his admission.’” However, defendant fails to appreciate the context within which the court’s statement was made. The statement was made by the court at the section 1204 hearing on the party petition in response to what the court believed was counsel’s attempt to argue insufficiency of the evidence going to the violation, a violation that defendant had already admitted. When counsel explained that he was only trying to show the mitigating circumstance that defendant had a good faith belief that he was in compliance with the nonassociation with minors condition of probation, the court permitted him to continue. Thus, contrary to defendant’s assertion, the court was not suggesting either that the admission had been incorrectly given or that counsel should move to withdraw the admission.
Defendant also claims that his counsel conceded error in permitting him to admit the party petition when counsel informed the court that the admission to having unauthorized contact with minor females “may have been my error.” Again, counsel’s statement is taken out of context.
The party petition accused defendant of having “contact with four minor females without permission from the Probation Officer” on or about “1-21-05 and 1-22-05.” Attached to the petition was a police report stating defendant had been present at his daughter’s slumber party “where several 12- [to] 13[-]year[-]old girls were present.” In taking defendant’s admission to this petition, the court recited that defendant was accused of having contact with four minor females “on or about a period from January 21 and/or January 22” without having obtained permission to do so from the probation department, and defendant so admitted.
At the section 1204 hearing the evidence showed that defendant had only briefly stopped by his daughter’s birthday/slumber party about 4:00 p.m., while defendant’s mother and father were present, and that he was not present during the evening hours. The court pointed out to counsel that it was not particularly concerned with defendant’s having been at the party for this short period of time, but that its primary concern had been that he was at the party through midnight because at the time he made his admission he had specifically admitted to being present the “21st and 22nd.” It was in this context that counsel responded that his not having limited the admission to the period shown by the evidence “may have been my error.” While this was an admission of error in failing to factually limit defendant’s admission, it was not a concession that there was no basis for defendant’s admission. The court found, and the evidence showed, that defendant had attended the party without proper authorization for a short period of time during the late afternoon, which constituted the violation charged. Thus, there was no basis for counsel to move to withdraw the admission.
Finally, defendant argues that because there was no factual basis for his admission of the party petition, counsel was ineffective for failing to move to withdraw the admission. The purported lack of a factual basis was the above-mentioned evidence, adduced at the section 1204 hearing, that defendant was not at the party overnight, but was only there for about 45 minutes during the afternoon of January 21. We are not persuaded by the argument.
First, defendant cites no authority, nor have we found any, for the proposition that in accepting a defendant’s nonnegotiated admission of all of the charges contained in a petition for violation of probation the court must obtain a factual basis for the admission. This, no doubt, is because there is no such rule. Indeed, in the analogous circumstances involving a plea of guilty or nolo contendere, where a defendant’s plea is not negotiated, i.e., does not specify punishment or any other exercise of the court’s powers, the obtaining of a factual basis for the plea is not required. (People v. Hoffard (1995) 10 Cal.4th 1170, 1184.)
Even if such a factual basis were required, defendant’s argument would fail. Where a court fails to obtain a factual basis for a defendant’s plea, the plea may stand if the record shows a factual basis for the plea. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1562, 1565.) Here, the section 1204 hearing established that defendant had attended his daughter’s birthday party without having physically in hand, as he was required to have, a “safe plan” approved by his therapist and his probation officer. Thus, his attendance at the party even for 45 minutes was a violation of the conditions charged and admitted by him.
In sum, since none of the reasons asserted by defendant constituted a basis for withdrawing his admission to the party petition, counsel could not be found ineffective for failing to have made such a motion.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P.J. HULL , J.