People v. Smith

Statement of the Case

On June 2, 1987, appellant pled nolo contendere before a magistrate to two felony charges alleging a violation of Penal Code 1 section 288, subdivision (a) (lewd or lascivious conduct with a child under 14 years of age) and a violation of section 288a, subdivision (c) (oral copulation with another person who is under 14 years of age and more than 10 years younger than the defendant). The matter was certified to the superior court pursuant to section 859a.

*1498 Thereafter, the superior court granted appellant’s motion to remand his case to the municipal court because of the magistrate’s failure to advise appellant of the mental condition report proceedings authorized by section 288.1.

The magistrate denied appellant’s motion to withdraw his plea and recertified the case to the superior court for sentencing.

The superior court denied probation and imposed the upper prison term of eight years for violation of section 288, subdivision (a) and a consecutive two-year midterm for violation of section 288a, subdivision (c).

Appellant makes two contentions on appeal: First, the magistrate erred in denying the motion to withdraw the nolo contendere…