Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC939000, CC942933
ELIA, J.
In Santa Clara County Superior Court case No. 942933 appellant Andrew King was convicted by plea of no contest of 17 counts of lewd and lascivious act on a child under 14. (Pen. Code, § 288 subd. (a).) Appellant admitted that as to each of the 17 counts he occupied a position of special trust, to wit, a coach within the meaning of former Penal Code section 1203.066, subdivision (a)(9). On January 29, 2010, the court sentenced appellant to 38 years in state prison. In a companion case, the court sentenced appellant to two years in state prison on three counts of violating Penal Code section 288, subdivision (c)(1)—lewd and lascivious act on a child aged 14 or 15 for a total of 40 years in state prison for the two cases.
Generally, under specified circumstances, Penal Code section 1203.066 provides for probation ineligibility for defendants who are convicted of lewd acts with children.
Appellant filed a timely notice of appeal and requested a certificate of probable cause on the ground that the application of Penal Code section 1203.066, subdivision (a)(9) as pleaded by the prosecution and applied by the probation department, violated the ex post facto clause of the United States and California Constitutions as that code section was repealed without a savings clause on January 1, 1995. The superior court denied the request for a certificate of probable cause.
On appeal, appellant contends that the trial court erred at sentencing by relying on the pre-1995 version of section 1203.066, subdivision (a)(9) to find him ineligible for probation and impose a state prison sentence.
Unless noted otherwise, all statutory references are to the Penal Code.
For reasons that follow, we affirm the judgment.
Factual and Procedural Background
Most of the facts underlying the individual counts are not relevant to this appeal. However, the relevant facts are summarized from the probation officer's report.
On February 26, 2009, a San Leandro police officer received an email from C. Doe who stated that from the time she was 12 until she was 17, between 1986 and 1991, she had a sexual relationship with appellant that included intercourse and oral sex. C. said that the sexual encounters occurred as frequently as once a week and occurred too many times for her to count. Appellant was her swimming coach. C. told the officer that appellant admitted he had an inappropriate relationship with another swimmer.
On April 9, 2009, the officer spoke with K. Doe. K. told the officer that from the time she was 12 until she was 15, between January 1989 and 1992, she had a sexual relationship with appellant that included intercourse, oral sex and digital penetration. K. said that intercourse occurred three to four times a month; oral sex occurred two to three times a month; and the digital penetration occurred almost every day.
The Santa Clara County District Attorney filed a complaint on May 8, 2009, charging appellant with 17 counts of lewd and lascivious act on a child under 14 in violation of section 288, subdivision (a). As to each count the complaint alleged that appellant committed the violations of section 288, subdivision (a) against more than one victim within the meaning of section 1203.066, subdivision (a)(7).
At the hearing set for entry of plea on June 4, 2009, appellant entered a demurrer to the charges. Appellant objected to the accusatory pleading on the ground that the application of section 1203.066, subdivision (a)(7) as pleaded violated the ex post facto clause of both the United States and California Constitutions. Although the People filed a response, prior to the matter being heard, the People filed an amended complaint and replaced the allegation under section 1203.066, subdivision (a)(7), with an allegation under the pre-1995 version of section 1203.066, subdivision (a)(9).
Again, appellant filed a written demurrer to the amended complaint on the basis that section 1203.066 subdivision (a)(9) as it was currently written did not contain any of the language in the pre-1995 version of the statute and the conduct alleged in the amended complaint did not violate the current version of the statute. Appellant argued that when the Legislature removes criminal sanctions from a statute all pending proceedings charging a violation of that statute must be dismissed.
Appellant's demurrer was overruled by the trial court and this court summarily denied his petition for an extraordinary writ of mandate on August 9, 2009.
Thereafter, as noted, on September 11, 2009, pursuant to a negotiated disposition appellant pleaded no contest to the amended complaint and admitted that as to all 17 counts he occupied a position of special trust. Defense counsel told the court that although appellant would be admitting the subdivision (a)(9) allegation, the intent was to appeal and seek a certificate of probable cause, which Judge Cena said he would "probably sign." It appears that no promises were made as to the disposition of the case, but the court would consider all sentencing options. Judge Cena told appellant that the maximum possible state prison sentence for his offenses was 42 years and that because of the 1203.066 allegations he was not eligible for probation. However, when reminded by defense counsel that 1203.066, subdivision (a)(9) "doesn't exist any more" as charged, the court told appellant that if he was "statutorily eligible for probation" and was placed on probation, his "probation could last up to five years."
On January 15, 2010, appellant appeared for sentencing. The court continued the sentencing hearing at the request of defense counsel in order for a defense expert to testify.
On January 29, 2010, at the continued sentencing hearing, Judge Cena stated he had thought about the case in preparation for the hearing and found it was "clear that [appellant] exploited and violated a position of trust in order to satisfy his own desires. [¶] The trust he violated was that of young and impressionable, vulnerable young girls that were entrusted into his care for swimming, swimming competitively. I think it's clear that he's an effective coach, an effective swim coach as attested to by some of the letters that were read even here today. [¶] It's also clear that the victims suffered, and in many cases, continue to suffer emotional trauma as a result of defendant's acts, and it does not appear that the defendant appreciates the emotional harm that he has caused." Judge Cena went on to state that the probation report indicated a number of aggravating facts in the case "including... violation of position of trust, sophistication of the defendant carrying out the crimes, and vulnerability of the victims." Thereafter, Judge Cena followed the recommendation of the probation report and imposed the midterm of six years on count one and one third the midterm or two years on the remaining 16 counts, to be served consecutively.
Discussion
Initially, we must determine if the issues that appellant raises in this appeal can be raised without a certificate of probable cause. The People assert that appellant's failure to obtain a certificate of probable cause requires that we dismiss this appeal.
Section 1237.5 specifies that a certificate of probable cause is required to raise various grounds on appeal following a plea of guilty or no contest plea including "jurisdictional... grounds going to the legality of the proceedings, " including the validity of the plea. The California Supreme Court has instructed that section 1237.5's requirement of a certificate of probable cause should "be applied in a strict manner." (People v. Mendez (1999) 19 Cal.4th 1084, 1098.)
Appellant asserts that this appeal is limited to issues that do not challenge the validity of the plea. He argues that a certificate of probable cause is not required when "an appellant 'is not attempting to challenge the validity of his plea of guilty but is asserting only that errors occurred in the subsequent adversary hearings conducted by the trial court for purpose of determining the degree of the crime and the penalty to be imposed.' [Citation.]" Appellant requests only that we remand to the trial court for resentencing.
"In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]" (People v. Pannizon (1996) 13 Cal.4th 68, 76.)
Appellant asserts that the pre-1995 language of section 1203.066, subdivision (a)(9) is no longer the law in California; that the Legislature intentionally deleted the "position of special trust" language from the statute effective January 1995 without a savings clause; that when the Legislature repeals a criminal statute or removes state sanctions from conduct formerly deemed criminal its action requires the dismissal of pending proceedings charging such conduct; and that application of the current language of section 1203.066 is a violation of the rule against ex post facto laws because the amendments to section 1203.066 had the effect of removing the sentencing court's ability to impose probation and made the denial of probation mandatory.
In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), the California Supreme Court addressed the issue of whether a defendant may challenge the trial court's authority to impose a sentence lid on the ground that the sentence violated the multiple punishment prohibition of section 654. In exchange for the dismissal of other charges and a sentence lid of three years eight months, defendant Shelton pleaded no contest to one count of stalking in violation of a protective order and one count of making a criminal threat. The trial court explained the plea agreement's sentencing provision as follows: " 'And the lid is three years eight months. Which means that the agreement is that I cannot sentence you to more than three years and eight months and you can argue for something less than three years and eight months.' " (Id. at p. 764.) Rejecting the defendant's claim that section 654 required it to stay any sentence for the criminal threat conviction, the trial court sentenced him to consecutive terms totaling the lid of three years eight months. The Court of Appeal majority held that by entering into a plea agreement with a sentence lid, Shelton did not waive the right to challenge the sentence based on section 654 because the agreement expressly permitted him to "argue for" a sentence less than the maximum term. (Id. at pp. 764-765.)
The California Supreme Court reversed the Court of Appeal's judgment. (Shelton, supra, 37 Cal.4th. at p. 771.) In so doing, the Supreme Court distinguished People v. Buttram (2003) 30 Cal.4th 773 (Buttram), and held that notwithstanding the provision recognizing Shelton's right to argue for a lesser term, the "inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant's right to urge that the trial court should or must exercise its discretion in favor of a shorter term." (Shelton, supra, 37 Cal.4th at p. 763.) Thus, in Shelton's case, "Because the plea agreement was based on a mutual understanding (as determined according to principles of contract interpretation) that the court had authority to impose the lid sentence, defendant's contention that the lid sentence violated the multiple punishment prohibition of Penal Code section 654 was in substance a challenge to the plea's validity and thus required a certificate of probable cause, which defendant failed to secure." (Id. at p. 769.)
In Buttram, supra, 30 Cal.4th 773, the Supreme Court had declined to extend the principle of Panizzon to a sentencing challenge where the defendant's prior guilty plea only specified a maximum sentence (or "lid"), as opposed to a stipulated term. In Buttram, the defendant pleaded guilty pursuant to a plea agreement under which there would be a maximum six-year sentence. (Id. at p. 777.) The defendant argued on appeal that the trial court had abused its sentencing discretion by denying the defendant's request for diversion to a drug treatment program. (Id. at pp. 776, 779.) In evaluating the substance of the defendant's challenge to ascertain whether it was, in fact, a challenge to the plea's validity, the court stated: "[W]here the terms of the plea agreement leave issues open for resolution by litigation, appellate claims arising within the scope of that litigation do not attack the validity of the plea, and thus do not require a certificate of probable cause." (Id. at p. 783.)
As the Supreme Court noted in People v. Cuevas (2008) 44 Cal.4th 374,
"In Shelton, [the] interpretation of the negotiated plea agreement, though focused on the sentence lid, emphasized giving effect to the parties' mutual intention. [Citation.] In that case, the plea agreement's provision permitting Shelton to 'argue for' a lesser term created an ambiguity as to whether he was allowed to raise an appellate claim on any ground. [Citations.] Therefore, in order to resolve the ambiguity, we were required to analyze ' "objective manifestations of the parties' intent, " ' including the surrounding circumstances under which the parties negotiated the agreement. [Citation.] We concluded that under the 'totality of the circumstances, ' Shelton 'did not reserve a right to argue that the trial court lacked authority to impose the specified maximum sentence.' [Citation.]" (Id. at p. 384.)
However, the California Supreme Court has recognized that, although a defendant challenges the validity of his or her plea if his or her sentence was part of a plea bargain, "[i]t does not if it was not [citation] —especially so if the claim or claims in question were 'reserved as part of the plea agreement' [citation]." (People v. Lloyd (1998) 17 Cal.4th 658, 665.)
Here there was no plea agreement as such, appellant entered a truly open plea admitting all charges and allegations and although he was informed of the theoretical maximum prison term to which he was exposed there were no promises as to the disposition. Furthermore, appellant's plea specifically reserved a post plea challenge to section 1203.066 and appellant expressly did not waive his right to appeal.
The California Supreme Court has described a plea bargain as follows: "The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.]" (People v. Orin (1975) 13 Cal.3d 937, 942.) An open plea is one under which the defendant is not offered any promises. (People v. Williams (1998) 17 Cal.4th 148, 156.) In other words, the defendant "plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence if the court later chose to impose it." (Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1055-1056.) Here, neither appellant nor the prosecution entered into a plea bargain. Appellant entered his pleas with nothing promised as far as dismissing counts or allegations or a specified sentence or sentence lid were concerned.
Thus, it is quite apparent that the plea left "open for resolution by litigation" (Buttram, supra, 30 Cal.4th at p. 783) the issue of precisely what sentence up to 42 years would be imposed by the court in the exercise of its sentencing discretion. Accordingly, we conclude that appellant was not required under section 1237.5 and California Rules of Court, rule 8.304(b) to obtain a certificate of probable cause in order to assert his challenge on appeal.
Thus, we turn to the merits of appellant's claim, but first reiterate that appellant does not seek to withdraw his plea, rather he urges that we remand this case for resentencing without any restriction on his parole eligibility.
Initially, it is helpful to our discussion to note that the probation ineligibility statute at issue here, section 1203.066, has been amended several times in the years since appellant committed his crimes.
Relevant here, at the time appellant committed his crimes between 1986 and 1992, subdivision (a)(9) of section 1203.066 read as follows: "a) Notwithstanding the provisions of Section 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provision of this section be stricken pursuant to Section 1385 for, any of the following persons:.... [¶] (9) A person who occupies a position of special trust and commits an act of substantial sexual conduct. 'Position of special trust' means that position occupied by a person in a position of authority who by reason of that position is able to exercise undue influence over the victim. Position of authority includes, but is not limited to, the position occupied by a natural parent, adoptive parent, stepparent, foster parent, relative, household member, adult youth leader, recreational director who is an adult, adult athletic manager, adult coach, teacher, counselor, religious leader, doctor, or employer." (Former § 1203.066, added by Stats 1981. ch 1064, § 4, p. 4095.)
At the time appellant entered his plea in 2009, relevant here, section 1203.066, subdivision (a)(9) read "(a) Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons:... [¶] (9) A person who, in violating Section 288 or 288.5, used obscene matter, as defined in Section 311, or matter, as defined in Section 311, depicting sexual conduct, as defined in Section 311.3." (§ 1203.066, as amended by Stats. 1993-1994, 1st Ex. Sess., ch 60, § 3.5, pp. 8806-8807.) Thus, it appears that the statute was amended effective in 1995 removing the former subdivision (a)(9) referring to a "position of special trust" language and replacing it with a completely different subdivision (a)(9) as outlined above.
In the 1993-1994 time frame several bills were introduced dealing with sex offenses. Three (after amendment) sought to amend section 1203.066, subdivision (a)(9), dropping the " position of special trust" language.— Assembly Bill No. 1029 (Stats. 1994, ch. 447, § 3, p. 2416), Assembly Bill No. 29 (Stats 1993-1994, 1st Ex. Sess., ch. 60, § 3.5, p. 8807) and Senate Bill No. 26 (Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 3, p. 8573). Each bill sought to amend section 1203.066, subdivision (a)(9), but in slightly different language. Assembly Bill No. 1029 and Senate Bill No. 26 used the phrase "A person who, in committing a violation of Section 288 or 288.5, used obscene matter...." Assembly Bill No. 29 used the phrase "A person who, in violating Section 288 or 288.5, used obscene matter...." We deem that any variance in two or more bills constitutes a conflict. (In re Thierry S. (1977) 19 Cal.3d 727, 740, fn 12.) Although all three bills were approved by the Governor and signed into law, Assembly Bill No. 29 was signed by the Governor after both Senate Bill No. 26 and Assembly Bill No. 1029. (http://www.leginfo.ca.gov.) Government Code section 9605 provides that "[i]n the absence of any express provision to the contrary in the statute which is enacted last, it shall be conclusively presumed that the statute which is enacted last is intended to prevail over statutes which are enacted earlier at the same session...." This paragraph establishes the rule that when two or more bills enacted at the same session of the Legislature conflict, the statute that is enacted last will prevail. (In re Thierry S., supra, 19 Cal.3d at p. 738.)
Furthermore, as originally enacted, subdivision (a)(7) of section 1203.066 denied probation to "A person who is convicted of committing a violation of Section 288 on more than one victim at the same time or in the same course of conduct." (Former § 1203.066, sub. (a)(7), Stats.1981, ch. 1064, § 4, p. 4095.) Effective 1993, after appellant committed his crimes, subdivision (a)(7) of section 1203.066 was amended to deny probation to "A person who is convicted of committing a violation of Section 288 or 288.5 against more than one victim." (Stats.1993, ch. 587, § 1, p. 2906.)
Appellant argues that when the Legislature repeals a criminal statute or otherwise removes state sanctions from conduct formerly deemed criminal its action requires dismissal of all pending proceedings charging such conduct. We do not disagree.
Certainly, when the Legislature repeals a penal statute without a savings clause, all prosecutions not reduced to final judgment are barred. (People v. Rossi (1976) 18 Cal.3d 295, 298-304.) Even where a conviction results from a plea bargain, repeal of the statute without a savings clause terminates all prosecutions not yet final. (People v. Collins (1978) 21 Cal.3d 208, 212 (Collins).)
"Rossi derived from the common law rule, early recognized in Spears v. County of Modoc (1894) 101 Cal. 303, 305... that the repeal of a criminal statute without a saving clause terminates all criminal prosecutions not reduced to final judgment." (Collins, supra, 21 Cal.3d at p. 212.) The theoretical basis of the rule is it is presumed "the Legislature, by removing the proscription from specified conduct, intended to condone past acts." (Ibid.)
In re Estrada (1965) 63 Cal.2d 740 (Estrada), dealt with the impact of Government Code section 9608, the general saving clause, on the common law rule. (Collins, supra, at p. 212.) Government Code section 9608 provides: "The termination or suspension (by whatsoever means effected) of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so terminated or suspended, unless the intention to bar such indictment or information and punishment is expressly declared by an applicable provision of law."
However, "Estrada distinguished between amendments to criminal statutes that increase and those that mitigate the penalty imposed." (Collins, supra, at p. 212.)
The general saving clause codified at Government Code section 9608 "defeats the presumption that the Legislature intended to pardon past acts when penalties are increased; in such cases, the saving clause expresses the Legislature's intent that the defendant be punished under the old law rather than avoid punishment for conduct proscribed both before and after amendment of a penal statute." (Collins, supra, at pp. 212-213.) However, [i]n the event of amendments mitigating punishment... section 9608 does not alter the common law rule giving defendants the benefit of the mitigation; section 9608 is intended not to allow punishment beyond that which the Legislature has determined is appropriate for the conduct in question, but rather to prevent a defendant from escaping punishment when his conduct has been and remains within the condemnation of the law." (Collins, supra, 21 Cal.3d at p. 213.)
Without doubt, the general rule is that outright repeal of a criminal statute without a saving clause bars prosecution for violations before the repeal. (Sekt v. Justice's Court (1945)26 Cal.2d 297, 304.) As noted, this rule is based on the presumed legislative intent that a repeal is an implied pardon for past offenses. (Ibid.) However, the rule "only applies in its full force where there is an outright repeal, and where there is no other new or old law under which the offender may be punished." (Id. at pp. 304-305.) Where the new statute mitigated punishment, violators would be punished under the new law. (Id. at p. 305.) Where a statute was repealed and a new statute enacted without substantive change, it was presumed the Legislature intended only clarification and not to affect the continuous operation of the law, even in the absence of a saving clause. (Id. at p. 306.) Thus, "where a new statute is passed in a field already occupied by an older statute, the new statute will not be held to have repealed by implication the old statute as to crimes already committed at the time the new statute is passed. As to such crimes the offender will be punished under the old law and the new law will be held to be prospective in operation." (Ibid.)
Here, the 1993-1994 amendments to section 1203.066, did not de-criminalize any behavior or reduce punishment for a violation of section 288. Rather, the statute appears to have completely removed from its reach a defendant who occupied a "position of special trust" and who engaged in acts of "substantial sexual conduct."
Essentially, as appellant argues, the penalty for section 288, subdivision (a) violators who occupy a "position of special trust" and engaged in "substantial sexual conduct" has decreased from being ineligible to receive a sentence of probation in 1988-89 to being eligible for such a sentence today. Thus, appellant argues that he should have received the benefit of that mitigation.
As a second challenge to his sentence, appellant argues that the "application of the current language of Penal Code section 1203.066" to his case "is a violation of the rule against ex post facto laws." Appellant asserts that at the time he committed his offenses it was within the discretion of the sentencing court to impose only probation. Appellant cites to "Stats 1993 ch 587 § 1" for this proposition. He argues that the 1993 amendments to section 1203.066 had the effect of removing the sentencing court's ability to impose probation and made the denial of probation mandatory in this case. As such, when a court applies statutory changes that retroactively impose greater punishment in probation cases the ex post facto clause is violated.
"Article I, section 10 of the United States Constitution provides: 'No State shall... pass any... ex post facto law....' In Collins v. Youngblood 1990) 497 U.S. 37, 110... the Supreme Court reviewed its decisions analyzing the clause and found that expansive language had crept into its decisions which had caused considerable confusion in state and lower federal courts about the scope of the clause. [Citation.] In order to clarify its views, the court rejected statutory analyses which were phrased in terms of whether a law eliminated a 'substantial protection' or 'altered the situation of the accused to his disadvantage.' Instead, the court returned to an analysis of the ex post facto law consistent with its understanding of that term at the time the Constitution was adopted. [Citation.] Under this analysis, '... the clause prohibits three legislative categories: legislation " '[1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed....' " [Citations.] [T]he ex post facto clause of the California Constitution [art. I, § 9] is to be analyzed identically.' [Citations.]" (People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 832-833.)
" 'Although the Latin phrase "exi iposti ifacto" literally encompasses any law passed "after the fact, " it has long been recognized by [the high court] that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them. [Citations.]' [Citation.]" (People v. Superior Court (Myers), supra, 50 Cal.App.4th at p. 833.)
"To fall within the ex post facto prohibition, a law must be retrospective--that is 'it must apply to events occurring before its enactment'-and it 'must disadvantage the offender affected by it' [citation] by altering the definition of criminal conduct or increasing the punishment for the crime [citation]." (Lynce v. Mathis (1997) 519 U.S. 433, 441.)
Curiously, appellant requests that we should "reverse the imposition of sentence and remand for resentencing under the appropriate section of the Penal Code as it was in effect on the dates of the offenses in 1988 and 1989." We are at a loss to understand appellant's position as he spent a considerable portion of his opening brief arguing that he could not be sentenced using the 1988-1989 version of section 1203.066.
Certainly, when first charged in this case the People alleged that appellant was ineligible for probation pursuant to subdivision (a)(7) of section 1203.066. Even though the facts of this case are limited, it does not appear that the version of subdivision (a)(7) that was in effect when appellant committed his crimes was applicable (more than one victim at the same time or in the same course of conduct). However, as noted the People filed an amended complaint and replaced the allegation under section 1203.066, subdivision (a)(7), with an allegation under the pre-1995 version of section 1203.066, subdivision (a)(9). If appellant is arguing that the court could not have used the post 1993 version of subdivision (a)(7) (more than one victim) to deny him probation without violating the prohibition against ex post facto laws, he is quite correct. "[C]hanges in sentencing rules can violate the ex post facto clause when the rules sufficiently circumscribe judicial discretion, even if the change does not automatically lead to a more onerous result than what would have occurred under the prior law." (People v. Delgado (2006) 140 Cal.App.4th 1157, 1169.) However, it does not appear that happened in this case.
It is quite apparent to this court that Judge Cena did not rely on any part of section 1203.066, old or new, to deny probation. Specifically, Judge Cena found several criteria that affected his decision to grant or deny probation. Expressly, Judge Cena found that appellant had violated a position of trust (Cal. Rules of Court, rule 4.414(a)(9)), that the "trust he violated was that of young and impressionable, vulnerable young girls... " (Cal. Rules of Court, rule 4.414 (a)(3)), and that appellant had inflicted emotional trauma on his victims (Cal. Rules of Court, rule 4.414 (a)(4)). After appellant was sentenced, the prosecutor asked the court to find that "because of the nature and circumstances of the crime and the repeated acts, that the Court would deny probation even if that section was not applicable." The court replied, "I think that should be clear from my remarks, but the Court does so find."
We take "that section" to mean section 1203.066.
Our conclusion that Judge Cena did not rely on section 1203.066 to deny probation finds further support in the fact that Judge Cena denied appellant's request for a certificate of probable cause to raise the issue of the amendments to section 1203.066, even after he stated that he would probably sign such a request. A reasonable inference to be drawn from this is that Judge Cena was fully aware that he did not rely on section 1203.066 to deny probation and therefore appellant's purported issue to be raised on appeal was frivolous.
Given the foregoing, even if the trial court had relied on any part of section 1203.066 to deny probation, whether we apply the harmless beyond a reasonable doubt standard for considering purported error of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24), or the reasonable probability of a better result standard (People v. Watson (1956) 46 Cal.2d 818, 836), we would find no prejudice.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J.PREMO, J.