In the court of appeal of the state of california third appellate district



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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)




THE PEOPLE,
Plaintiff and Respondent,
v.
BRUCE G.,
Defendant and Appellant.


C034403

(Sup.Ct.No. 97F07790)





APPEAL from a judgment of the Superior Court of Sacramento County, Loyd H. Mulkey, Jr., Judge. Affirmed.


Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson and

Arnold O. Overoye, Senior Assistant Attorneys General, and David A. Lowe, Deputy Attorney General.

George Bond and Shama H. Mesiwala, under appointment by the Court of Appeal, for Defendant and Appellant.

Defendant Bruce G. was accused by information of four counts of violating Penal Code section 288, subdivision (a) (all undesignated section references are to the Penal Code). Counts 1 through 3 accused defendant of committing a lewd or lascivious act upon Amber, a child under the age of 14, on or about March of 1997; count 4 accused him of committing a lewd or lascivious act upon Christina, a child under the age of 14, on or about July 1996.

After trial, a jury convicted defendant on counts 1 through 3 and acquitted him on count 4. Relying on section 1203.066, the trial court denied defendant’s application for probation and sentenced him to an aggregate prison term of 6 years (the midterm on count 1, with concurrent terms on counts 2 and 3). Defendant contends: (1) The trial court abused its discretion under Evidence Code section 352 by admitting evidence of sexual offenses allegedly perpetrated by defendant against two adult women. (2) The admission of this evidence under Evidence Code section 1108 deprived defendant of due process and a fair trial. (3) The trial court erred prejudicially by instructing the jury with the 1999 version of CALJIC No. 2.50.01. (4) The prosecutor committed Griffin1 error in closing argument. (5) The cumulative effect of these errors and prejudicial acts compels reversal. (6) Defendant’s sentence must be vacated because the trial court applied the wrong statute (§ 1203.066) in determining that defendant was ineligible for probation. (7) Defendant’s trial counsel was ineffective for failing to object to the court’s use of the wrong statute in denying probation.

In the published portion of the opinion, we agree with defendant that the trial court erred in relying on section 1203.066 to deny probation. We shall vacate defendant’s sentence and remand the matter so that the trial court may consider defendant’s eligibility for probation under the correct statutes. In the unpublished portion of the opinion, we reject defendant’s other contentions and affirm his convictions.

FACTS

Prosecution case

Background

Until the summer of 1996, defendant, his wife, JoAnne, and their three daughters, Angela, Amber, and Christina, lived in Sacramento. In 1996, Angela, the oldest daughter, was 10 or 11 years old; Amber was 9 or 10 years old; Christina was 7 or 8 years old. Defendant, JoAnne, and JoAnne’s mother jointly owned a family business.

In July 1996, Amber, upset and crying, told her mother in Christina’s presence that defendant had made Amber touch him inappropriately. Amber said she “[didn’t] want to do that anymore.” When JoAnne asked what she meant, Amber replied: “[W]ashing her dad’s private parts in the shower.” JoAnne confronted defendant, who denied wrongdoing.

According to Amber’s trial testimony, earlier that day she and Christina had been showering together in the bathroom of the master bedroom. Amber had just finished washing Christina’s hair and Christina had left the shower. As Amber prepared to start washing her own hair, defendant, naked, unexpectedly entered the shower and told Amber to wash his body. He handed her a bar of soap and had her “wash his penis along with the rest of his body.” As she did so, his penis became hard. He told her at one point to continue because his penis was not clean enough. She could not recall whether he moved his body or made any sounds as she washed his penis. Afterward, he told her not to tell anyone.2

About three weeks later, JoAnne left the family home and moved to Foresthill;3 Amber went into counseling. JoAnne had been reluctant to leave defendant earlier because she loved both defendant and Amber and wanted to believe them both; however, when Amber asked why JoAnne did not love her and believe her, JoAnne decided she had to make a choice.

Because divorce proceedings were underway and Amber had reported molestation, the children did not visit defendant without supervision from October 1996 through February 1997. During February 1997, the children began alternate weekend visitation with defendant at the Sacramento home.



Evidence relating to counts 1-3

During their visits, according to Amber’s testimony, the girls all slept in defendant’s bed, which was the only available bed in the house.4 Amber usually wore a shirt to bed; defendant slept either in underwear or naked.

One night in March 1997, Amber woke up in defendant’s bed to find him moving her thumb around his penis; Amber’s sisters continued to sleep.5 His penis was hard and felt as though it had lotion on it. Telling her to be quiet, he directed her into the bathroom. In the bathroom, he grabbed a towel and “did something to his penis that made stuff come out” which was “milky, watery.” She said “Eww”; he told her to keep quiet. Then he turned her around to face away from him, placed lotion in her hands, and had her rub it onto his penis with her hands behind her back. Finally, he directed her back to the bedroom and told her to go back to sleep, adding that she should not tell anyone about this incident because if she did he wouldn’t be able to see them any more.

In her MDIC interview, Amber said that defendant explained he made her do this only because he had not had a massage in a long time. At trial, she recalled something about a massage, but nothing more specific.6

Later in March, around Easter vacation, Amber visited defendant again. As before, Amber woke in defendant’s bed, with her sisters still sleeping, to find defendant “making [her] do that.” Amber tried to feign sleep as defendant moved her hand on his erect penis. She finally told him she was uncomfortable. He put on clothes and told her not to tell anyone about the incident.

On cross-examination, Amber recalled four incidents, rather than the three she had mentioned on direct. She also recalled that the last two occurred after Easter vacation, but could give no more specific dates.

Amber did not immediately tell JoAnne what had happened because she still wanted to see defendant and she felt uncomfortable thinking about discussing the incidents with people she did not know. But eventually, just before another scheduled visit to defendant, Amber did tell JoAnne about the incidents.

JoAnne then had Amber write down what she remembered before JoAnne confronted defendant and contacted Child Protective Services (CPS).7

Amber’s writing, which was admitted into evidence as an exhibit, stated in a paragraph dated March 1: “My dad had me rub his private part with my thumb and he put lotion on it.” In a paragraph dated March 29, Amber wrote: “My dad had me do the same thing.” The writing also included the phrases “The first time he said it’s only because he hasn’t had a massage in a long time” and “‘Don’t tell anyone or I won’t be able to see you girls.’”8

JoAnne confronted defendant with Amber’s story. According to her, he replied: “Baby, no, no, no, don’t go there, no, no, no,” “It didn’t happen,” and “I didn’t do that . . . , don’t accept that, don’t believe that, I wouldn’t do that.”


Evidence relating to count 4

Christina testified that one day before her parents separated, she was in the shower alone, preparing to wash her hair, when defendant entered naked and said “Wash this,” pointing to his penis. She did so, rubbing her soapy hands together. She said defendant’s penis was “down”; the skin was “gross” and “crinkly.” She stopped because she did not like doing this. While she was doing it, defendant washed her hair. Afterward Christina left the shower, dressed, and went to her room. Not wanting to get in trouble, Christina did not tell anyone about the incident until the night in July 1996 when Amber told their mother about her own molestation.

Joanne did not recall that Christina told her of this incident at that time. As Joanne recalled, Christina mentioned her alleged molestation for the first time to Dr. Frank, the counselor in the divorce case.

Joanne and Angela admitted at trial that Christina lies, makes things up, and tells stories. Angela recalled that Christina had said nothing happened to her. In her MDIC interview, Amber said Christina had claimed molestation but that Amber did not know if Christina was telling the truth because she lied a lot. In the defense case, Dr. Frank and therapist Alicia Santos-Coy testified that Angela and Amber had made similar statements about Christina to them.


Angela’s evidence of uncharged conduct

Angela testified that one day when she was 10 or 11 and living in the Sacramento residence, she was in the shower washing her hair, turned around, and saw defendant behind her. He pointed to his penis and said “Wash me.” Frightened, she looked down. He grabbed her hand and placed it on the “top of [his penis], the front part,” then wrapped her fingers and thumb around it and moved her hand back and forth. His penis became erect. The incident lasted one or two minutes. While it was going on, defendant moved his shoulders back, tilted his head, and rolled his eyes.9

Angela did not tell anyone about this incident even after Amber confessed her own molestation, because Angela still loved her father and did not want to make things worse. She disclosed defendant’s conduct for the first time in May 1999.10


Other uncharged conduct

Ann Marie, 31 years old at the time of trial, had worked for defendant’s and JoAnne’s family business. In 1994, at a housewarming party, Ann Marie was talking with defendant in the backyard of his house. He reached over, took her arm, “jerked” it to his crotch, and placed her hand on top of his jeans on his penis. She jerked it away after about five seconds, then walked away as he smiled at her.

Debbie, 36 years old at the time of trial, worked for defendant and JoAnne in their family business for over six years. About five years ago, when Debbie was at their house, defendant approached her from behind, started to rub her shoulders, said he was excited, took her hand, and placed it on his groin; she could feel his erect penis. She pulled it away immediately. Defendant and Debbie were completely clothed at the time. She did not consent to his conduct.

Defense case

Defendant did not testify, but mounted a defense which attacked his daughters’ and JoAnne’s credibility. He also sought to prove that JoAnne had two motives for inspiring the girls to fabricate: she was having an affair with the man she later married, and she wanted to take defendant’s share of the day care business away from him.

Defendant’s mother, Sandra, testified that defendant attended a family picnic on Easter Sunday, March 30, 1997 (the day after he allegedly molested Amber during her Easter-vacation visit), without his children. Sandra recalled that JoAnne mentioned defendant’s alleged molestation of Amber in a conversation in which JoAnne also said she was seeing another man and would leave defendant. JoAnne later said she would not press charges if defendant signed over the day care business. Finally, Sandra recalled that JoAnne dropped off a box of defendant’s possessions, which included a copy of Amber’s 1997 Christmas list.

Defendant’s sister Donna, who lived near defendant and JoAnne and visited them regularly, recalled that they often showered with their daughters and that JoAnne was always home. She admitted, however, that to her knowledge the joint showers ended well before the summer of 1996.

Lori R., a customer of JoAnne’s family business, testified that from 1994 on, the children were not always tended to at JoAnne’s home as they had been. JoAnne said someone had reported her to CPS for having too many children in the house and consequently they now had to use numerous locations.

Marilee Napier, a CPS worker, testified that she took JoAnne’s call and wrote a report on or about April 16, 1997.11 The report stated that according to JoAnne, on March 1 and March 29, 1997, defendant requested that Amber masturbate him and wash his private area. JoAnne also stated that the marriage was an “open relationship,” and that when a parent was showering, the children could join him or her. JoAnne did not report abuse of Angela or Christina.

Detective Gernandt, the investigating officer, testified that he met with Angela and Christina on August 26, 1997. Angela denied that defendant had done anything wrong to her, though she knew of something relating to Amber; Christina volunteered, however, that when she was seven years old defendant made her wash his penis in the shower and threatened to spank or ground her if she did not comply. Gernandt next met with Angela on December 30, 1998; this time Angela told him of defendant’s alleged molestation of her.

Karen M., who looked after defendant’s children in defendant’s home about seven years ago, became aware then that they sometimes showered with him. She also formed the impression that Amber could look you in the eye and lie convincingly.12

Dr. Frank, the family court mediator, testified that she had met with family members several times, first in November 1996 and then in May and June 1997. In November 1996, during a meeting with JoAnne and the girls, JoAnne, Amber, and Christina all described defendant’s conduct. JoAnne recounted a confrontation between herself, defendant, and Amber, in which Amber “backed down” from her allegation against him (possibly meaning only that Amber dropped the subject). Also in November 1996, Amber described two episodes in which defendant told her to wash his penis. Around the same time, Christina also described defendant’s alleged molestation of her.

In mid-1997, JoAnne told Dr. Frank that JoAnne had given unsupervised visitation to defendant without following through on the court’s counseling recommendation. JoAnne also told Dr. Frank of two new incidents of defendant’s alleged molestation of Amber. Amber herself told Dr. Frank of those incidents in June 1997. Amber told Dr. Frank, with Angela in the room, that defendant massaged Amber’s back with a massager, then asked Amber to massage his private; the girls then laughed, giggled, and teased each other. (Angela had just told Dr. Frank that this incident occurred in the afternoon or early evening, but Amber said it occurred at 2:30 a.m.; they giggled after Dr. Frank asked Amber in front of Angela about this discrepancy.)

Dr. Alicia Santos-Coy, a family therapist, testified that she counseled Amber in June 1997. Crying, Amber described a series of incidents of sexual touching involving herself and defendant. In the first incident, when Amber was nine years old, defendant came into the shower when Amber and Christina were there and told Amber to help him wash himself, or else go to bed early; when she tried to leave, he stopped her. In the second incident, which occurred when the family was camping, defendant asked Amber to rub his private part so he could sleep, then made her do it, and finally told her not to tell anyone.13 The third and fourth incidents involved defendant making Amber rub lotion on his penis when the girls were visiting him; the first of these times they were all sleeping on the floor, while the second time they were all sleeping on the bed. The first time he took her into the bathroom and “squeezed milky-looking stuff out of him”; the second time she told him she did not want to touch him, but he replied that she had soft hands.

DISCUSSION

I

Defendant contends the trial court prejudicially abused its discretion under Evidence Code section 352 by admitting the uncharged-acts evidence of Ann Marie and Debbie. We conclude that, assuming for the sake of argument the trial court erred in admitting this evidence, any error could not have prejudiced defendant.



Defendant asserts it violates due process to admit evidence which fails Evidence Code section 352’s criteria for admissibility, and that we may find such a violation harmless, if at all, only under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 189 [17 L.Ed.2d 705]. He cites no authority so holding, however, and we know of none. On the contrary, it is settled that “the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense” (People v. Hall (1986) 41 Cal.3d 826, 834), that this rule specifically applies to Evidence Code section 352 (People v. Cudjo (1993) 6 Cal.4th 585, 611), and that we therefore apply the harmless-error standard of People v. Watson (1956) 46 Cal.2d 818, 836 to abuse of discretion under Evidence Code section 352. (People v. Cudjo, supra, 6 Cal.4th at p. 611.) Under that standard, even assuming the trial court abused its discretion by admitting the Ann Marie and Debbie evidence, we find no prejudice.

As we have recounted, this evidence consisted of accounts that defendant, on separate occasions, took the hands of two adult women and placed their hands on his crotch, where the women could feel his erect penis underneath his clothes.

We see no prejudice from admitting this uncharged conduct. As defendant concedes, that conduct was simply not inflammatory in the context of this case. The contested conduct amounted to inappropriate sexual conduct by an adult vis a vis other adults. What defendant was accused of doing to Ann Marie and Debbie was far less outrageous than what he was accused of doing to his own daughters. Thus, it is not reasonably probable that the exclusion of the uncharged conduct evidence would have affected the outcome. (See People v. Cudjo, supra, 6 Cal.4th at p. 612.)

Defendant maintains that the uncharged conduct evidence prejudiced him by undermining his defense that JoAnne induced the fabrication of her daughters’ stories to procure financial gain in her divorce from defendant. He speculates that the jury might have accepted this defense if it had not heard Ann Marie’s and Debbie’s allegations, “as the jury would be more skeptical to believe the defense of fabrication where [defendant] was shown to have made women touch him in the past, when it was totally unrelated to divorce proceedings.” In his view, his defense otherwise stood a good chance of success because the testimony of all his daughters was so full of inconsistencies and discrepancies that the jury could reasonably have disbelieved it all.

Defendant’s argument consists partly of sheer speculation. There is no logical connection between the testimony of Ann Marie and Debbie and JoAnne’s motive to fabricate. Moreover, three of defendant’s daughters testified to his commission of lewd acts; contrary to defendant’s argument, the inconsistencies in their testimony were minor.

We do not view the jury’s acquittal of defendant on count 4 as a rejection of Christina’s credibility. Rather, the acquittal is likely attributable to the fact that, since defendant’s penis was not erect when Christina washed it, the jury had a reasonable doubt as to defendant’s lewd intent.

Considering all the evidence adduced in this case, it is not reasonably probable that the outcome would have been different had the Ann Marie and Debbie evidence been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.)

II

Defendant contends that Evidence Code section 1108 violates the Fifth and Fourteenth Amendments to the United States Constitution and the analogous provisions of the California Constitution. Both the California Supreme Court and this court have rejected this contention. (People v. Falsetta (1999) 21 Cal.4th 903, 915-918; People v. Fitch (1997) 55 Cal.App.4th 172, 178-183.) The contention is not meritorious.



III

Defendant contends the trial court erred prejudicially by instructing the jury with CALJIC No. 2.50.01 (1999 Rev.) as follows: “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in this case. [¶] . . . [¶]  If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. [¶]  If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit the crime or crimes of which he is accused. [¶]  However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. [¶]  The weight and significance of the evidence, if any, are for you to decide. [¶]  Unless you are otherwise instructed, you must not consider this evidence for any other purpose.”

According to defendant, this instruction is unconstitutional because it interferes with the presumption of innocence and allows the jury to convict based on a standard lower than proof beyond a reasonable doubt. We disagree.

In People v. Falsetta, supra, 21 Cal.4th at page 924, our Supreme Court approved this instruction in dictum. Dictum from our Supreme Court is highly persuasive. (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1209.) We, therefore, agree with People v. Hill (2001) 86 Cal.App.4th 273 at pages 276-278 (review den.), which followed the high court’s dictum in Falsetta and rejected defendant’s challenge to the subject instruction. (See also People v. Brown (2000) 77 Cal.App.4th 1324, 1336 [following Falsetta’s dictum and upholding constitutionality of 1999 version of CALJIC No. 2.50.02].)

Defendant’s claim of instructional error is not meritorious.

IV

Defendant contends the prosecutor committed repeated Griffin error in closing argument, irreparably prejudicing him. We disagree.



Defendant cites four comments by the prosecutor as attempts to use defendant’s failure to testify against him in violation of Griffin v. California, supra, 380 U.S. 609 [14 L.Ed.2d 106]:

1. “Nobody has even testified for the defense.”

2. “And with respect to Angela and Christina and the other women [sic], you know that those children sat in this chair and told you the truth. And the thing the defense can’t answer, that they never can answer[,] is, they have nothing to gain,

. . . And they didn’t want to be here. [¶]  They’ll never have an answer to that.”

3. “But you know it’s true because of the corroboration. And when I was thinking about, you know, who’s going to tell her. That all referred to . . . the reality, of what happens to people when they come to court. The reality of what happened to JoAnne. [¶]  They’re all liars. All five of them. [¶]  What was the next defense[?] [¶]  Sinister plan. Defendant was set up. [¶]  Not in so many words, but the bottom line is that--”14

4. “It’s never been suggested to you that, clearly, the burden is on the prosecution. But the defense pointed to their own diagram and in that diagram didn’t say he was innocent. The diagram had [‘]not proven[’] – that’s something they wrote in their diagram that does have significance. That’s part of the muck. That’s part of, like that octopus evading capture. The muck of the defense. [¶]  And we have [‘]JoAnne put these kids up to it. JoAnne fabricated evidence. And Amber memorized her story.[’] And, absolutely, they’re not required to prove a darn thing. [¶]  But when you prove a defense through cross-examination, the presentation of witnesses, that evidence and the lack – that evidence is subject to the same scrutiny as any other evidence. [¶]  Just because they said the same things over and over about those kids and they’ve talked to mom doesn’t mean he’s any less guilty. None of that is true. None of that rests on any item of evidence. [¶]  The direct evidence that you heard was that he put their hands on the penis – and this isn’t commenting only on the evidence, and the state of the evidence is uncontroverted.”

To begin with, defense counsel did not object to any of these comments except the third (assuming from the unclear record that that objection went to the prosecutor’s remarks and not merely to the visual aid she was using at the time). Therefore, defendant’s claim of Griffin error is waived except as to that comment. (People v. Medina (1995) 11 Cal.4th 694, 756.) Because the trial court sustained counsel’s objection and admonished the jury to disregard the objectionable matter, we do not see how it could have prejudiced defendant.

People v. Hardy (1992) 2 Cal.4th 86, 154-157, which defendant cites to show that he preserved his claim of error as to all the remarks by objecting to one of them, does not assist him. In Hardy an objection and motion for mistrial were raised and argued at the first instance of alleged Griffin error, and counsel later renewed their mistrial motions. (People v. Hardy, supra, 2 Cal.4th at pp. 156-157.) That is a far cry from the single isolated objection raised here.

But assuming defendant’s claim of error is preserved across the board, it fails.

Three of the four remarks he complains of do not constitute Griffin error. A prosecutor may fairly comment on the state of the evidence, including a nontestifying defendant’s failure to proffer material evidence or witnesses to rebut the People’s case. Such comment crosses the Griffin line only if the defendant alone could have given such evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1339; People v. Medina, supra, 11 Cal.4th at p. 755.) When read in context, the prosecutor’s second, third and fourth remarks here did not cross that line.

The second and third quoted remarks did not even indirectly refer to defendant’s failure to testify; they simply asserted the children’s credibility.

The fourth quoted remark, in which the prosecutor described defendant’s alleged conduct, then said “the state of the evidence is uncontroverted,” presents a closer question. It might seem that only defendant could have controverted the children’s accounts of what he did, because he was the only other person who could have known what did or did not happen. In context, however, it appears that the prosecutor was commenting on the entire state of the evidence, including the defense efforts to attack the children’s credibility through cross-examination, the testimony of Drs. Frank and Santos-Coy, and evidence of JoAnne’s motives to fabricate the charges. Therefore we conclude that this remark was not Griffin error.

This leaves the first remark: “Nobody has even testified for the defense.” Contrary to the People’s argument, we believe there is a reasonable likelihood the jury would have understood this remark as a comment on defendant’s failure to testify (People v. Clair (1992) 2 Cal.4th 629, 663), because, in fact, the defense had presented various witnesses, including defendant’s mother, defendant’s sister, a CPS worker, a police detective and a family court mediator. The jury would reasonably construe the remark as an indirect comment on defendant’s failure to testify.

However, “‘indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.’” (People v. Bradford, supra, 15 Cal.4th 1229, 1340, quoting People v. Hovey (1988) 44 Cal.3d 543, 572.) Such is the case here. The remark in question was a brief, single sentence without amplification. The jury was instructed not to draw any inference of guilt from defendant’s exercise of his right not to testify. The prosecutor’s remark was harmless beyond a reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 447.)

V

Defendant contends that the cumulative effect of the alleged errors and prosecutorial misconduct prejudiced him. Having found no arguable error other than the admission of the testimony of Ann Marie and Debbie, and a brief remark by the prosecutor, we reject this contention.



VI

Defendant contends the trial court erroneously determined him ineligible for probation under section 1203.066, a statute which requires proof of “substantial sexual conduct,” because no such conduct was charged or found true by the jury. Defendant further contends his trial counsel was ineffective for failing to discover and point out the correct law to the court. The People concede these points. We shall accept the People’s concessions. Because the trial court misunderstood the scope of its discretion to grant probation, we remand the matter for resentencing.

The parties agree that the trial court relied on section 1203.066 to find defendant ineligible for probation. The court stated it was not prepared to find the grant of probation would be in the best interests of the child, one of the findings necessary to grant probation under section 1203.066, and therefore found defendant ineligible for probation.

As pertinent, section 1203.066 declares a defendant who has engaged in substantial sexual conduct with a victim who is under 14 years of age ineligible for probation unless the trial court makes five findings enumerated in the statute.15

Subdivision (b) of section 1203.066 provides: “‘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.”

Subdivision (d) of section 1203.066 provides: “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 or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.”

The information in this case generally pleaded four counts of violation of section 288, subdivision (a); the information did not plead any facts showing substantial sexual conduct as defined by subdivision (b) of section 1203.066.

The jury’s verdict found three violations of section 288, subdivision (a); the verdict did not find any facts constituting “substantial sexual conduct.”

The jury’s findings that defendant violated section 288, subdivision (a), are not findings that defendant engaged in “substantial sexual conduct” because a violation of section 288 occurs whenever, to gratify the child’s or the actor’s sexual desires, an actor merely touches a child under the age of 14. (People v. Memro (1995) 11 Cal.4th 786, 861.)

The record in this case demonstrates there was absolutely no compliance with the pleading and finding requirements of subdivision (d) of section 1203.066. Accordingly, section 1203.066 did not apply to limit the trial court’s discretion in determining whether to grant defendant probation.

All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) Here, no statute affected defendant’s eligibility for probation, although section 1203.067 set forth certain prerequisites to a grant of probation.16 The trial court had full discretion to grant probation, subject to consideration of the criteria listed in rule 414 of the California Rules of Court.

An erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. (People v. Aubrey, supra, 65 Cal.App.4th at p. 282.) “Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.]” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) A court cannot exercise that “informed discretion” where it is unaware of the scope of its discretionary powers. (Ibid.)

Here, the court was misinformed as to the scope of its discretionary powers, erroneously believing that section 1203.066 limited that discretion. Where a trial court imposes sentence without an accurate understanding of its sentencing discretion, remand for resentencing is appropriate. (People v. Rodriguez (1998) 17 Cal.4th 253, 257; see also People v. Sherrick (1993) 19 Cal.App.4th 657, 661 [remand for resentencing where trial court erroneously believed section 1203.066 applied].)

Obviously, a remand for resentencing would be an idle act if it would be an abuse of discretion to grant probation in this

case. (See People v. Warner (1978) 20 Cal.3d 678 [abuse of discretion to grant probation to defendant convicted of oral copulation on a young boy with three prior convictions for similar conduct].) While we express no opinion as to the propriety of granting probation in this case, the record does not indicate that a decision to grant probation would be an abuse of discretion.

In requesting probation, defendant argued he was an intra-familial regressed molester, not a fixated pedophile, and thus the statutory scheme favored rehabilitation on probation. In support of his request for probation, defendant submitted a psychological evaluation that concluded he was suitable for probation and amenable to treatment, as well as numerous letters of support from family and friends. Unlike the defendant in Warner, supra, 20 Cal.3d 678, defendant has no criminal history. In a letter to the court, he expressed remorse and a willingness to do whatever it took to restore his relationship with his daughters. Until these incidents, defendant had a long and stable work history. He worked for 20 years in a family business and 10 years as a correctional officer. He was currently working as a free lance carpet layer. In short, since there are factors in mitigation, a grant of probation would not be an abuse of discretion. (§ 1203, subd. (b)(3).)

DISPOSITION

Defendant’s convictions are affirmed. Defendant’s sentence is vacated and the matter is remanded to the trial court for resentencing in accordance with part VI of this opinion.




MORRISON , J.

I concur:




SIMS , Acting P. J.

DAVIS, J.


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.

A 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.17

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 the defendant was presumptively ineligible for probation under section 1203.066 and expressly found that a grant of probation to the 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.18 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 as 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 the 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.



DAVIS , J.



* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I, II, III and V of the Discussion.

SEE CONCURRING AND DISSENTING OPINION

1


 Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106].

2 Amber testified that defendant had showered with his daughters when they were little, but he had never told her to wash his penis before. JoAnne testified that defendant had not showered with his daughters since 1993, three years before this incident (when Amber would have been six or seven years old).

Defendant was not charged with any crime arising from this incident.



3 JoAnne’s future husband, Earl, was a staffer at the campground the family used there; JoAnne moved into his trailer after filing for divorce. JoAnne did not mention these facts on direct examination.

Defendant asserts that Earl lived with the family in the Sacramento residence, but the record does not support him.


4 There was conflicting evidence about where the girls slept during their visits to defendant’s home. In a videotaped interview conducted in May 1997 at the multi-disciplinary interview center (MDIC) which was played for the jury, admitted into evidence, and furnished to this court on appeal, Amber said Christina was asleep on the floor when the first incident took place; at trial Amber could not recall whether that was so or whether she had ever said it was. Both Angela and Amber recalled that Christana would often go back and forth from the bed to the floor. Christina testified that she usually slept on the floor while her sisters slept on the bed. Angela recalled that she sometimes slept on the couch and did not remember sleeping with both sisters on the bed. However, Detective Gernandt, the investigating officer, recalled that Angela told him the girls sometimes all slept in the bed.


5 In the MDIC interview, Amber gave the date of this incident as March 1, 1997, and the date of the next incident (at p. 12, post) as March 29, 1997.

6 Dr. Mary Anne Frank, a family therapist and court-appointed mediator in the family law case who was called as a defense witness, testified that according to her notes of an interview with Amber in November 1996, Amber mentioned a “massager” in connection with an alleged molestation.

7 JoAnne admitted that she delayed reporting defendant’s alleged conduct to CPS, although as a family business operator she is mandated to report such matters. However, she denied telling defendant’s mother in July 1996 that she would not go to CPS if defendant gave her the day care business. She admitted, though, that in August 1996 she and her mother, the third owner of the business, entered into an agreement to eliminate defendant’s position as a director.

JoAnne also admitted that she had allowed the girls to resume unsupervised visitation with defendant although she did not know whether he had completed the counseling ordered by the family law court as a condition of unsupervised visitation.



8 Another writing by Amber was introduced in evidence. A Christmas list purportedly written in 1997, its first item read: “Dad to admit what he did.” JoAnne testified that she found it among the “divorce papers” only after trial began; she had not mentioned it or shown it to anyone before. Amber authenticated the writing in an Evidence Code section 402 hearing before JoAnne gave this testimony.

9 In the jury’s presence Angela testified that she used only the shampoo that was already on her hands. Out of the jury’s presence she testified that defendant handed her a bar of soap first.


10 The information in this case was filed on November 21, 1997. Jury trial began on September 30, 1999.

11 Marilee Napier acknowledged that although CPS reports are supposed to be written within 36 hours after CPS has received notice of abuse, this does not always happen.

12 On cross-examination, Karen M. admitted she disliked JoAnne, considered her “very materialistic,” and had called her a “con artist.” She also admitted that she had no firsthand knowledge of the facts alleged in this case.

13 Amber told Santos-Coy that she did not tell Dr. Frank about the camping incident because she remembered it only after leaving Frank’s office.

14 Defense counsel objected at this point, claiming Griffin error as to a “projection” which the prosecutor had apparently set up to illustrate this argument, asserting that the prosecutor had argued that defendant had to prove his innocence, and requesting that the trial court admonish the prosecutor for misconduct. The trial court said: “Yes. The last sentence will have to go out and the jury is admonished to disregard it.” The court did not comment on defense counsel’s request for an admonition.

15 Section 1203.066 provides in relevant part (italics added):

“(a) Notwithstanding Section 1203 or any other law, probation shall not be granted to . . . any of the following persons: [¶]. . . [¶]

(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. [¶]. . . [¶]

“(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:

“(1) The defendant is the victim’s natural parent, . . .

“(2) A grant of probation to the defendant is in the best interest of the child.

“(3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation . . . .

“(4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. . . . [¶] . . .

“(5) There is no threat of physical harm to the child victim if probation is granted. . . .

(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 . . . .


16 Section 1203.067 provides in part: “(a) Notwithstanding any other law, before probation may be granted to any person convicted of a felony specified in Section . . . 288, . . . who is eligible for probation, the court shall do all of the following:

“(1) Order the defendant evaluated pursuant to Section 1203.03, or similar evaluation by the county probation department.

“(2) Conduct a hearing at the time of sentencing to determine if probation of the defendant would pose a threat to the victim. The victim shall be notified of the hearing by the prosecuting attorney and given an opportunity to address the court.

“(3) Order any psychiatrist or psychologist appointed pursuant to Section 288.1 to include a consideration of the threat to the victim and the defendant’s potential for positive response to treatment in making his or her report to the court. Nothing in this section shall be construed to require the court to order an examination of the victim.”



17 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: [¶]  . . . [¶] 
“(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. [¶] 
“(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: [¶] 

“(2) A grant of probation to the defendant is in the best interest of the child. [¶]  . . . [¶] 
“(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 . . . .”


18 People v. Warner (1978) 20 Cal.3d 678, 683.






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