Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. BA352499, Michael D. Johnson, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
INTRODUCTION
Defendant Jorge Cardenas contends that the trial court’s use of a risk assessment report in his sentencing hearing prejudiced his ability to receive probation. We reject defendant’s arguments and affirm the trial court’s denial of probation for defendant.
FACTS AND PROCEEDINGS
Defendant Jorge Cardenas pleaded guilty to sexually abusing his minor daughter. The defense and prosecution agreed to an 18-year prison sentence for defendant without discussing probation. Defendant accepted the 18-year offer. The court accepted defendant’s plea, scheduled a subsequent hearing for sentencing, and ordered a probation report including a risk assessment report. Defendant did not object to the use of the risk assessment report at the plea hearing.
At the sentencing hearing, the court agreed with the 18-year prison sentence, and after reviewing the probation officer’s report denied defendant probation. The report included the probation officer’s recommendation as well as a Static-99 assessment report. The Static-99 is a risk assessment tool devised by social scientists that measures recidivism rates for adult male sex offenders by weighing static factors and certain behavioral characteristics identified in previously studied groups. The California Legislature mandates that trial courts consider the Static-99 in probationary sentencing. Defendant received a score of two on the Static-99, which indicates a moderate to low range of risk of recidivism. Even though the creators of the Static-99 admit that some cases will “exceed” or “fall short” of the scoring estimate, the defense did not object to the court’s use of the Static-99, nor did it request a hearing to determine the scientific validity of the report. In addition, the probation officer recommended that probation be denied despite defendant’s eligibility. Now, defendant contests the trial court’s use of the Static-99 report, maintaining that it prejudiced his ability to receive a fair evaluation for probation. Defendant requests resentencing without consideration of the Static-99 test.
Penal Code section 1203 subdivision (b)(3) states: “At a time fixed by the court, the court shall hear and determine the application, if one has been made, or, in any case, the suitability of probation in the particular case. At the hearing, the court shall consider any report of the probation officer, including the results of the SARATSO [state-authorized risk assessment tool for sex offenders], if applicable, and shall make a statement that it has considered the report, which shall be filed with the clerk of the court as a record in the case. If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation. If probation is denied, the clerk of the court shall immediately send a copy of the report to the Department of Corrections and Rehabilitation at the prison or other institution to which the person is delivered.”
DISCUSSION
Before we rule on whether the trial court erred in using the Static-99 in the sentencing hearing, we must decide two procedural issues. First, was defendant required to file a certificate of probable cause with the trial court? Second, did defendant forfeit his right to appeal the court’s use of the Static-99 by failing to object to it at trial?
A Certificate of Probable Cause
As a threshold matter, we address whether defendant was required to file a certificate of probable cause with the trial court. While an appeal after a plea of nolo contendere generally requires a certificate of probable cause, a post-plea matter can be appealed without a certificate as long as it does not affect “the validity of the plea.” (Cal. Rules of Court, rule 8.304(b)(4)(A), (B); see People v. McNight (1985) 171 Cal.App.3d 620, 624 [appeal of post-plea matter permitted as long as it is not in “substance” a challenge to the guilty plea]; People v. Ward (1967) 66 Cal.2d 571, 576 [certificate of probable cause not required for appeal concerning post-plea matters determining degree of the crime and penalty to be imposed].) In People v. Buttram (2003) 30 Cal.4th 773, 790-791, the California Supreme Court ruled a certificate of probable cause is not required when the sentencing court has discretion in post-plea matters. Here, the prosecution and defense did not discuss probation during plea negotiations, thereby leaving undisturbed the trial court’s discretion whether to order probation. Because the trial court had discretion in an area that did not attack the validity of the plea, defendant was not required to file a certificate of probable cause to pursue this appeal.
B. Forfeiture of a Kelly/Frye Claim for Failing to Object at Trial
Defendant contends the court erred by not conducting a Kelly/Frye hearing on the validity of the Static-99, a test crafted to determine recidivism rates among adult male sex offenders. Section 290.04 of the Penal Code establishes a State-Authorized Risk Assessment Tool for Sex Offenders Review Committee charged with ensuring that the assessment tool that the criminal justice system uses “reflects the most reliable, objective, and well-established protocols for predicting sex offender risk of recidivism, has been successfully validated and cross validated, and is, or is reasonably likely to be, widely accepted by the courts.” (Pen. Code, § 290.04, subd. (a)(2).) The California Legislature adopted the Static-99 as the risk assessment tool to be used for assessing adult male sex offenders. (Pen. Code, § 290.04.) Under the Kelly/Frye test, a defendant can challenge a court’s reliance on experimental scientific evidence by asking a court to determine its reliability. (Kelly, supra, 17 Cal.3d at p. 30.) However, California courts have established that the defense must make its objection at trial. (See People v. Kaurish (1990) 52 Cal.3d 648, 688 [court not required to raise Kelly/Frye objection sua sponte]; People v. Coleman (1988) 46 Cal.3d 749, 777 [failure to object to scientific evidence “fatal” to defendant’s contention].) In the case before us, defendant failed to request a Kelly/Frye hearing or object to the trial court’s use of the Static-99. As a consequence, defendant forfeited his objection to the trial court’s use of the Static-99 under Kelly/Frye.
2 People v. Kelly (1976) 17 Cal.3d 24 (Kelly); Frye v. United States (D.C. Circ. 1923) 293 F. 1013, 1014 (Frye).
C. Trial Court’s Use of the Static-99 Test
Even if defendant had objected to the Static-99, the trial court did not err by using the Static-99. Defendant contends the Static-99 prejudiced his ability to receive a fair assessment of his eligibility for probation because the test looks to static factors, as opposed to dynamic factors (e.g., rehabilitation, intelligence levels), to determine recidivism rates. The record does not support defendant. The trial court acted in accordance with section 1203, subdivision (b)(3) of the Penal Code by reviewing the Static-99 included with the probation officer’s report. The defendant scored a two on the Static-99, placing him in the moderate-low range of risk category, thus scoring defendant’s prospects more favorably than the probation officer’s report that flatly recommended against probation. The trial court’s adoption of the probation officer’s recommendation against probation suggests that the court relied very little, if at all, on the Static-99. (People v. Therrian (2003) 113 Cal.App.4th 609, 611, fn. omitted [“when an expert’s opinion regarding the likelihood of defendant reoffending is not based solely upon the results of a Static-99 test..., a Kelly hearing on the admissibility of expert’s testimony regarding the test is not required”].) The record indicates that the trial court simply considered the test as mandated by law. Therefore, defendant’s claim that the trial court erred by using the Static-99 fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.