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Name: People v. Willard
Case #: C054553
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/06/2007

Under Penal Code section 1192.5, when a negotiated guilty or no contest plea is taken, the court must obtain a factual basis for the plea. A bare stipulation by counsel without reference to documents containing a factual support, or to documents that do not exist within the record, does not meet the standard required by section 1192.5. Appellant was charged by complaint with two counts of Penal Code section 288, subdivision (a). The charging language contained the alleged date, the initial of the victim, and the language of the statute. Appellant pled no contest to one count and agreed to an upper term sentence in exchange for dismissal of the second count. At the plea hearing, the parties stipulated to a factual basis and the plea form provided that the court could take facts from any source necessary to establish the factual basis. However, the record contained no probation report, preliminary hearing, police report or other document providing a factual basis. Reviewing under an abuse of discretion standard, the appellate court found that there was an insufficient factual basis to support the plea and that on the basis of the record, the error was not harmless. It remanded to allow the prosecution to establish the factual basis. If it was unable to do so, appellant would be permitted to withdraw his plea. [Appellant obtained a certificate of probable cause.] (People v. Holmes (2004) 32 Cal.4th 432; agreeing with the dissent in People v. McGuire (1991) 1 Cal.App.4th 281.)