P. v. Holbea
Charged with three counts of sexual misconduct against his stepdaughter, defendant Ioan Holbea entered a negotiated plea of no contest to the charge of committing a lewd and lascivious act upon a child under 14 (Pen. Code, 288, subd. (a))and received a sentence of six years in state prison. On appeal, defendant contends his sentence must be vacated and the matter remanded because the trial court erred in (1) finding him presumptively ineligible for probation under section 1203.066, and (2) denying probation in part based on the courts own unsupported diagnosis that defendant suffers from obsessive-compulsive disorder, contrary to the opinion of the court-appointed psychologist. Defendant also contends his trial counsel was ineffective for failing to bring these matters to the courts attention at sentencing, and that the court erred in imposing a $20 court security fee.
Court agree that the trial court erred in finding that section 1203.066 rendered defendant presumptively ineligible for probation, and remand for the courts further exercise of its discretion in determining whether to grant probation.
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