Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR235333
Pollak, Acting P. J.
Defendant James Patrick Conway appeals from a judgment imposing a six-year prison term following his plea of guilty to continuous sexual abuse of a child under the age of 14 years. He argues that the trial court erred in determining that he was ineligible for probation and in calculating the restitution fine. We disagree and therefore shall affirm.
Background
On August 16, 2006, an information was filed alleging that between November 1, 1997 and November 1, 1998, defendant had engaged in continuous sexual abuse in violation of Penal Code section 288.5, subdivision (a) by engaging “in three and more acts of ‘substantial sexual conduct,’ as defined in . . . section 1203.066(b), and three and more acts in violation of section 288 with a child under the age of 14 years, while the defendant resided with, and had recurring access to, the child.”
Further statutory references are to the Penal Code.
In December 2007, defendant pled guilty to the charge. At the hearing at which the court accepted his plea, defense counsel recited as a factual basis for the plea that “between November 1st of 1997 and November 1st of 1998, while the victim was in between the ages of 11 and 12, the defendant molested her. She is his stepdaughter. He molested her at least five times over that period of a year. He fondled her breast while she slept . . . or while she pretended to sleep, he fondled both outside her clothing and he also did inside her clothing, skin to skin contact with her vagina and he had her touch his penis.” The court then stated, “Count 1 alleges that . . . you committed a felony, namely continuous sexual abuse of a child under the age of 14 years. What is your plea [to] that charge, sir?” The defendant replied “guilty” and stipulated to the factual basis.
The prosecutor argued that defendant was not eligible for probation because the case involved “substantial sexual conduct” under section 1203.066, discussed below. He argued that “based on the law in 1997, . . . the defendant is statutorily ineligible for probation.” The trial court denied probation and sentenced defendant to the low term of six years’ imprisonment. It imposed a fine of $2,400 under section 1202.4, subdivision (b). Defendant timely appealed.
Discussion
Probation eligibility
Defendant first argues that the trial court erred in denying probation. Section 288.5, subdivision (a) provides that “Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066 , or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child . . . .” (Italics added.) Section 288 makes it a crime to “willfully and lewdly commit[] any lewd or lascivious act . . . upon or with the body, or any part of member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .”
We apply the sentencing law as it read at the time the offenses occurred. (People v. Martinez (1988) 197 Cal.App.3d 767.) In 1997, when defendant committed the acts for which he was convicted, section 1203.066 provided that “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.” Subdivision (c) of section 1203.066 provided that: “Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings: [¶] (1) The defendant is the victim’s natural parent, adoptive parent, stepparent, relative, or is a member of the victim’s household who has lived in the victim’s household. [¶] (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 . . . . [¶] (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. . . . .” (As amended by Stats. 1995, ch. 935, § 4.)
Defendant argues that the trial court improperly applied criteria set forth in section 1203.066 as it read in 2008 when defendant was sentenced, rather than as it read in 1997 when the conduct underlying the conviction occurred. However, it is clear that the trial court referred to the earlier statute since it mentioned at the outset of its remarks the factors in “subdivision (c),” and those factors are currently listed in subdivision (d).
“ ‘Substantial sexual conduct’ ” was defined as “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.” (Former § 1203.066, subd. (b), as amended by Stats. 1995, ch. 935, § 4.) “ ‘[M]asturbation’ includes any touching or contact of the genitals of either the victim or the offender, whether over or under clothing, with the requisite intent.” (People v. Lopez (2004) 123 Cal.App.4th 1306, 1312, italics omitted.)
Subdivision (d)(1) of section 1203.066 now provides: “If a person is convicted of a violation of Section . . . 288.5, and the factors listed in subdivision (a) are not pled or proven, probation may be granted only if the following terms and conditions are met: [¶] (A) If the defendant is a member of the victim’s household, the court finds that probation is in the best interest of the child victim. [¶] (B) The court finds that rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment . . . . [¶] (C) If the defendant is a member of the victim’s household, probation shall not be granted unless 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 his or her return. . . . [¶] (D) The court finds that there is no threat of physical harm to the victim if probation is granted.” (Italics added.)
Defendant argues that “[t]he accusatory pleading and the code provisions do not match” because the statute specifies “three or more acts of lewd or lascivious conduct” and the information alleges “three and more acts.” (Italics added.) This is a distinction without a difference, as the awkwardly phrased “three and more acts” encompasses the “three or more acts” proscribed by the statute.
More substantively, defendant argues that his plea did not admit to substantial sexual conduct because “the factual stipulation referred generally to acts of a lewd or lascivious nature, i.e., improper touching; nothing encompassed acts of penetration or masturbation.” Therefore, he argues, he was not presumptively ineligible for probation under section 1203.066.
We agree that the facts recited in the record to which defendant stipulated when he entered his plea were not sufficient to establish that his offense necessarily involved “substantial sexual conduct” as defined in the statute and that his offense was within the parameters of section 1203.066, subdivision (a)(8). While the facts to which defendant stipulated are consistent with the possibility of penetration or masturbation, a touching such as defendant admitted does not necessarily involve either one, and defendant did not admit that either occurred. As the statute read in 1997, section 1203.066 did not prohibit probation for a defendant convicted of violating section 288.5 unless the offense involved “substantial sexual conduct.” Subdivision (a)(8) denied probation to persons who violated sections 288 or 288.5 by engaging in “substantial sexual conduct,” and subdivision (c) provided that subdivision (a)(8) “shall not apply” where the five factors enumerated in what was then subdivision (c) were found. However, whether or not those five factors were found to exist, probation was not limited by section 1203.066 if the offense did not involve substantial sexual conduct.
The scheme of the statute as it currently reads appears to be different. Probation now may not be granted to a person violating sections 288.5 if substantial sexual conduct is pled and either admitted or proven, regardless of whether the factors enumerated in what is now subdivision (d) are found to be true. (§ 1203.066, subd. (c).) If substantial sexual conduct is not pled and proven, probation may be granted for a violation of section 288.5 only if those factors are established.
However, although the trial court may not have been precluded by section 1203.066 from granting probation, neither was it required to grant probation. At the sentencing hearing, the court addressed at length the issue of probation. “The court notes . . . that a grant of probation to the defendant must be in the best interest of the child for the court to consider a grant of probation. I have considered all references to this issue that are contained in the doctors’ reports, I’ve heard the statement of the victim and her mother today, as well as the testimony of the doctor, and this court concludes from all of that, that probation to this defendant would not be in the best interest of the victim in this case. [¶] The court notes that the victim is extraordinarily traumatized, years after this happened. I heard her describe feeling suicidal, depressed, and a number of other psychological maladies as a result of this. I recall reading her fear of living in the home with the defendant as he was doing these things, unable to tell her mother, essentially trapped in this world with him, as the molester and as her father, unable to do anything about it or to tell anyone about it, and the torment that she felt living under those circumstances. [¶] The court noted the extreme emotional response that the victim had when she was talking to probation that was detailed in the probation report, and I think in light of the trauma and the scarring that she’s been through and the court concurs with the doctor, that she is a victim of posttraumatic stress disorder to this day, that it would be an affront to her for this court to grant probation to the defendant. [¶] As I stated earlier, most of the cases that I’ve seen where you’ve had this type of conduct and probation has been granted, have been cases where you have a family that has been torn apart, but they’re trying to get back together again and it would be traumatic for the victim to see her loved father or grandfather or other family member sent off to prison based on her accusation. This is not one of those situations. [¶] The court notes that the victim’s mother threw the defendant out of the home as soon as she heard about these things. She’s in the process of divorcing him now. This is not a situation where we’re trying to maintain a family and trying to avoid having the victim bear the guilt of breaking up the family. . . . [¶] [A] grant of probation to this defendant would be an affront to the victim and the pain that she has described and the suffering that she has endured over the past couple of years, and so this court is satisfied that a grant of probation would not be in the best interest of the victim in this case and would deny probation to this defendant.”
While the court’s remarks were framed in terms of the best interests of the child, a factor specified in section 1203.066, the comments make clear that the court did not believe defendant to be entitled to probation under the general probation standards as they existed in 1997 or at the time of sentencing. In 1997, as today, section 1202.7 provided that “[t]he safety of the public . . .; the nature of the offense; the interests of justice, including punishment . . .; the loss to the victim; and the needs of the defendant shall be the primary considerations in the granting of probation.” (Added by Stats. 1981, ch. 1142, § 6.) Thus, at all times the trial court has been vested with broad discretion in deciding whether to grant probation. Whatever consideration the court may have given to section 1203.066, its remarks make clear that it did not believe defendant was entitled to probation even if the court had the authority to grant it. In denying probation, the court properly took into consideration the impact that probation would have on the victim and in so doing did not abuse its discretion. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 [in denying probation trial court may consider any criteria “reasonably related to that decision”].) Even if the court was under the impression that section 1203.066 applied, its remarks leave no doubt that the error was harmless.
Defendant also argues that in considering whether it was in the best interest of the victim to grant probation, the trial court should have “reconstructed” the situation as it existed at the time of the offense. While this contention is of little significance in view of the conclusions expressed above, we nonetheless deem it appropriate to point out that the contention lacks merit. Defendant acknowledges that his position has been expressly rejected in People v. Wills (2008) 160 Cal.App.4th 728. In that case, the court considered the Supreme Court’s holding in People v. Jeffers (1987) 43 Cal.3d 984. In Jeffers the court held that the sentencing court must consider the situation as it existed at the time of the molestation in determining whether the defendant was “a member of the victim’s household” under section 1203.066. (Id. at p. 994.) The court reviewed the legislative history of section 1203.066 and observed that the Legislature had found there to be a difference between a pedophile, “defined as a man (there are virtually no female pedophiles) who throughout life is sexually attracted exclusively to children, usually boys, within a particular age range,” and “regressed offenders,” “men who are sexually attracted to adult women but who, for a variety of reasons, have engaged in sexual relations with a child, usually a girl,” and who tended to commit incestuous or intrafamily offenses rather than crimes outside of the family unit. (Ibid.) “Successful treatment of the regressed or intrafamily offender requires that he be prosecuted and receive punishment in some form, such as a jail term [citation] but mandatory prison terms are undesirable ‘because more of the witnesses would be reluctant to give the kind of testimony that would put their companion, their father, or . . . their “beloved friend” in prison.’ [Citations.] [¶] Following this hearing, Senate Bill No. 586 (1979-1980 Reg. Sess.) was introduced with a proposed section 296 dealing with the subject of mandatory prison terms for persons committing sex offenses against children. [Citation.] The mandatory provision would not apply if the court made four findings. Relevant to this appeal are the terms of the first two required findings: ‘(1) The defendant is the victim's natural parent, adoptive parent, stepparent, relative or member of the victim’s household’ and ‘(2) Imprisonment of the defendant would either cause psychological harm to the child, or cause the breakup of the family, or both.’ ” (43 Cal.3d at p. 994.)
The Jeffers court reasoned that “The provisions of section 1203.066 should be construed in light of the major areas of concern expressed at the legislative hearings, one of which was that a child victim often suffers guilt feelings if a nonviolent molester who has been a father figure for that child is imprisoned. According to witnesses expressing this concern, the child feels responsible, albeit irrationally, for betraying a relationship of trust. The likelihood of this occurring would seem to depend directly on the strength of the relationship between the victim and the defendant at the time of the offense and at the time of the ‘betrayal’ (i.e., when the victim first reported the offense). The strength of the relationship at the time of sentencing would appear to be a less relevant consideration.” (People v. Jeffers, supra, 43 Cal.3d at p. 997.) The court also believed that “[i]nterpreting the statute to require determination of household member status as of the time of sentencing would require or at least encourage the defendant to maintain a relationship with the victim and the other members of the victim’s family after the offense and up to the time of sentencing when a severing of the relationship during this period by the defendant, out of concern for the victim’s feelings or in recognition of his own need for rehabilitation, might better serve the interests of both the victim and the defendant.” (Id. at p. 998.)
In People v. Wills, supra, 160 Cal.App.4th 728, the court did not consider the member-of-the-household requirement of the statute, but the provision on which defendant focuses, the best interest of the victim. In Wills, the defendant admitted that his offense came within section 1203.066, subdivision (a)(8). The court interpreted the language requiring the court to determine whether probation is in the best interest of the child as expressing the Legislature’s intent that the provision apply only if the victim is still a child at the time of sentencing. “Logically, where, as here, the victim is no longer a child at time of sentencing, the sentencing court is unable to make a finding under section 1203.066(c)(2) that ‘[a] grant of probation . . . is in the best interest of the child’ for the simple reason that there is no child. In such a case, the sentencing court is unable to make ‘all’ of the findings specified in former subdivision (c) of section 1203.066, as required by that subdivision, and thus is not authorized to grant probation to a defendant against whom a true finding under section 1203.066, subdivision (a)(8) has been properly made.” (160 Cal.App.4th at pp. 737-738.) We concur in the conclusion reached in Wills and, therefore, to the extent that the trial court gave any consideration to the factors that are relevant under section 1203.066, conclude that the court considered the proper time period in determining the best interest of the victim.
Continuance
Defendant next argues that the trial court abused its discretion when it denied a request to continue the sentencing hearing and order the victim to be interviewed by defense psychologists. One of the psychologists, Dr. Caprice Diane Haverty, testified that she had reviewed the police reports and probation report and had worked with defendant as part of his treatment. In response to defense counsel’s question of whether she had “sought to interview . . . the victim,” Dr. Haverty replied, “I actually asked you on numerous occasions if I could and you said that with all due respect, it would not be a good idea to contact her, given the circumstances and given her blocking of [defendant] of having contact with her.” Defense counsel stated, “We would prefer to have the opportunity to do that, to provide that to the court, an opinion based upon such an interview. If that could be arranged, we would seek to do that and request a continuance of the hearing in order to do that, to come back and be able to provide that further information and opinion to the court.” The prosecutor commented, “The victim has no desire to speak with her. She is the therapist of the defendant. And, quite honestly, she’s been sitting in court all morning, so she knows what the victim’s feelings are about this. There is absolutely no reason to continue this hearing and it would be inappropriate and I do object to her testifying about anything at this point, because all we’ve heard is what her job is and it has nothing relating with this particular case at all or what’s in the best interest of this victim.” The court then denied the request.
Dr. Haverty went on to opine that “In my experience in 27 years of working with incest survivors and survivors of all forms of molestation and sexual offenses, including rape, in particular in these incest cases and in general, victims want control and power, . . . and they deserve it. [¶] . . . [¶] . . . My opinion about this particular victim is that she does want a sense of control and power in this case, and she deserves it, and part of recovery—I mean, I can see by what happened here, that she is suffering and has suffered greatly, she appears to have some PTSD, posttraumatic stress, quite a bit of it, and that in exercising that need for power and control, that’s part of the recovery process. [¶] . . . [¶] . . . What concerns me is that that power and control is being . . . presented as a prison sentence.” She expressed her concern that in her view an important aspect of recovery for the victim would be “coming together with the offender and confronting him . . . and hear the kind of self torture and world of remorse that this man lives in,” and “that, if he is in prison, that’s not going to happen. So that can thwart her development and her maturity through recovery . . . .” She stated that it was “absolutely” her opinion that defendant should “receive probation now . . . .” On cross-examination she conceded that the victim could visit and speak with defendant if he were in prison.
Defendant acknowledges that we review the trial court’s decision on a request for continuance under the deferential abuse of discretion standard. (People v. Michaels (2002) 28 Cal.4th 486, 524-525.) He does not suggest what a continuance might have accomplished as there was no indication that the victim would have agreed to speak with the psychologist. The trial court heard and considered Dr. Haverty’s opinion that probation was in the best interest of the victim and, weighing it along with the testimony of the victim and her mother that defendant should not receive probation, denied probation and sentenced the defendant to prison. The trial court did not abuse its discretion in denying the request for a continuance.
Restitution fine
Finally, defendant argues that the trial court erred by imposing a restitution fine of $2,400. Section 1202.4, subdivision (b)(1) provides that a restitution fine between $200 and $10,000 must be imposed and that the amount to be imposed is at the court’s discretion. Subdivision (b)(2) of that section provides a formula that the court “may” use if it chooses: “the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” Using this formula, defendant argues, the court should have imposed a fine of only $1,200 since he was sentenced to six years’ imprisonment on one count. Defendant did not raise this objection in the trial court, however, and it is therefore waived. (People v. Scott (1994) 9 Cal.4th 331, 353-356.) This is a “claim[] involving the trial court’s failure to properly make or articulate its discretionary sentencing choices,” to which the Scott court held that the waiver rule applied as it is the type of “[r]outine defect” that could have been “easily prevented and corrected if called to the court’s attention.” (Id. at p. 353.) In all events, the court is not required to utilize the formula suggested in section 1202.4, subdivision (b)(2), and its failure to do so is not an abuse of discretion.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.