People v. Bounds

[1576]

Opinion

THE COURT.

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Defendant appeals his conviction by plea of one count of lewd and lascivious conduct with a child under the age of fourteen years in violation of Penal Code

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section 288, subdivision (a). He contends the trial court erred by refusing to permit him to withdraw his plea of guilty when he was not afforded a full and complete diagnostic evaluation and report pursuant to section 1203.03 as required by his conditional plea. We remand with directions.

Factual and Procedural History

Defendant was charged by information with two counts of violating section 288, subdivision (a). He entered a plea of guilty to Count Two involving his step-granddaughter whom defendant admitted sexually molesting on numerous occasions when she was between three and twelve years of age. Defendant’s plea of guilty was conditional upon dismissal of Count One, his receiving a maximum sentence of eight years in state prison, and “I will not be committed to prison prior to receiving a PC 1203.03 study.” These conditions were agreed to by the prosecution and accepted by the trial court.

On September 2, 1986, defendant was committed to the Department of Corrections (DOC) for a diagnostic study pursuant to section 1203.03. On November 6, 1986, the “Diagnostic Study and Recommendation” of the DOC was filed with the trial court recommending that defendant be committed to prison. At a hearing held on November 24, 1986, counsel for defendant informed the trial court that he had supplied the DOC with a “very thick packet of information,” including a transcript of the testimony of a psychologist, Dr. M. K. Downing, and a medical report “dealing with the possibility or probability that [defendant] did not have herpes and could not have communicated the herpes to the victim in this case.” Counsel further informed the court that this information had not been considered in the preparation of the DOC’s section 1203.03 report. The trial court continued the hearing to December 22, 1986, and ordered the DOC to file a supplemental report five days prior to that date.