Concurring and Dissenting.—I respectfully dissent from that part of my colleagues’ opinion remanding the matter to the trial court for resentencing. In all other respects I concur.
*1249A defendant who the jury has found has engaged in substantial sexual conduct with a victim who is under 14 years of age is ineligible for probation unless the trial court makes five findings enumerated in Penal Code section 1203.066, one of which is that a grant of probation to the defendant is in the best interest of the child.1
Here the prosecutor blundered by failing to craft the information so as to require the jury to find that defendant had engaged in substantial sexual conduct with a child under the age of 14 within the meaning of Penal Code section 1203.066. Had the prosecutor included the charge, the jury would have necessarily found it true. This is because the facts underlying each of the three counts defendant was convicted of constitute substantial sexual conduct within the meaning of that statute; namely, having his daughter masturbate him when she was 9 or 10 years of age.
At sentencing, the trial court failed to notice the absence of the special finding. It proceeded as if defendant was presumptively ineligible for probation under section 1203.066 and expressly found that a grant of probation to defendant was not in the best interest of the child. Probation was denied and defendant was sentenced to prison. Defendant suffered no prejudice because it would be an abuse of discretion to release defendant into the community on a grant of probation.
In deciding whether to grant probation our Supreme Court held in People v. Warner that a court is required to exercise discretion that is impartial, guided and controlled by fixed legal principles, exercised with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.2 To grant probation here would violate the spirit of the law and established public policy.
Looking through the blurred pane of our appellate record, my colleagues have crafted a sympathetic view of defendant. In doing so, they portray him *1250as a suitable candidate for probation and thereby implicitly endorse a discretionary decision to grant probation on remand. This is unfortunate and the trial court will be wise to decline their invitation.
There is simply no difference between defendant’s conduct and that of others similarly situated save for the jury’s failure to make a redundant finding. Many child abusers, no doubt, have significantly more sympathetic backgrounds than defendant here. Nonetheless, by enacting Penal Code section 1203.066, our Legislature has determined that it is the public policy of this state that when a defendant has a child masturbate him when she is 9 or 10 years of age, he is not suitable for probation under any circumstances unless, at a minimum, it is shown that the interest of the victim child is best served by such a grant. The majority’s ruling today fails to give proper deference to the Legislature’s express determination.
Over an extended period of time and on several different occasions, this 240-pound defendant manipulated his own 9- or 10-year-old daughter into masturbating him despite her objections and then threatened her with the all-too-familiar refrain of telling her to keep quiet or else she would not be able to visit him again. In light of the trial court’s determination that it is not in the child’s best interest to have defendant released into the community on probation, it would be an abuse of discretion to do so. I would affirm the judgment in its entirety.
Penal Code section 1203.066 provides in pertinent part:
“(a) Notwithstanding Section 1203 or any other law, probation shall not be granted to . . . any of the following persons: TO ... TO
“(8) A person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age. TO • • • TO
“(b) ‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the' penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.
“(c) Paragraph!] ... (8) ... of subdivision (a) shall not apply when the court makes all of the following findings: TO • • • TO
“(2) A grant of probation to the defendant is in the best interest of the child. TO • • • TO
“(d) The existence of any fact that would make a person ineligible for probation under subdivision (a) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the jury trying the issue of guilt. . . .”
People v. Warner (1978) 20 Cal.3d 678, 683 [143 Cal.Rptr. 885, 574 P.2d 1237].