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Name: People v. Voit
Case #: H035882
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 11/18/2011

Defendant is estopped from challenging the sufficiency of the factual basis for his plea where the trial court conducted an appropriate inquiry into the factual basis and counsel stipulated to documents forming the factual basis. Appellant was charged with six counts of lewd acts on three different children (Pen. Code, § 288, subd. (a)). Due to the multiple victims, a one strike allegation was made (Pen. Code, § 667.61). Appellant entered a plea to six counts of lewd acts under section 288, subdivision (b)(1) and the one strike allegation was dismissed. It was stipulated that the preliminary hearing transcript contained a factual basis for the pleas. Prior to sentencing, appellant sought to withdraw his plea and obtain substitute counsel. The motions were denied and the stipulated 36 year sentence was imposed. Appellant appealed, obtaining a certificate of probable cause. He asserted that as to two of the victims, there was an insufficient factual basis for the section 288, subdivision (b)(1) convictions because there was no evidence of force. The Court of Appeal held a defendant may not dispute on appeal what he previously conceded (i.e., the factual basis for the plea) “without also seeking to set aside his concession as mistaken.” A plea of guilty waives any appellate claim that there is insufficient evidence to support the plea. A challenge to the factual basis for the plea is essentially equivalent to a challenge to the sufficiency of the evidence to support the plea. A guilty or no contest plea does not prevent a defendant from challenging the procedure that resulted in the plea. However, here appellant did not state that his plea resulted from any mistake or ignorance. He did not challenge the denial of his motion to withdraw the plea or claim that the trial court failed to conduct an adequate inquiry into the factual basis for the plea. He simply contends there is insufficient evidence of force to support four of the counts to which he pled.

In imposing penalty assessment on a fine, it is sufficient for the trial court to orally impose the fine “plus penalty assessment.” The trial court’s $500 fine imposed pursuant to Penal Code section 290.3 was reduced to $300, which was the amount provided by statute at the time the offenses occurred. In addition to challenging the amount of the fine, appellant attacked the procedure used by the court, which orally imposed the section 290.3 fine “plus penalty assessment” without specifying the amount of the assessment. The Sixth District Court of Appeal found that this is an “acceptable practice.” [See contrary authority, e.g., People v. High (2004) 119 Cal.App.4th 1192.] Several of the fines imposed (Pen. Code, § 1465.7; Gov. Code, §§ 7600.5, 76104.6 and 76104.7), however, were improperly imposed retroactively and were stricken.