Opinion
B188856
12-15-2006
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN J. SPILLMAN, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Jonathan J. Spillman appeals from a judgment entered following his no contest plea to committing a lewd act with a child under 14 years of age (Pen. Code, § 288, subd. (a)). He was sentenced to prison for the low term of three years and challenges his sentence, claiming the trial court abused its discretion in refusing to grant him probation as recommended by the Department of Corrections following a diagnostic study. For reasons stated in the opinion, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
According to the probation report, appellant sexually molested 11-year-old "Jane Doe" multiple times between April 5, 2000, and April 5, 2001. The victim told the police that her half-brother (appellant) touched her vagina underneath her underwear and would "massage her clitoris with his fingers." When the victim told her mother, the mother said appellant would never sleep in the same room as the victim again; thereafter, he slept in the garage. However, when everyone was asleep, appellant would go to the living room where the victim was sleeping and touch her pubic area. In a tape-recorded telephone conversation with the victim, appellant stated how sorry he was that the molestation had occurred, and that he was on drugs and "sick in the head."
Appellant pled no contest to one count of committing a lewd act on a child under the age of 14 in violation of Penal Code section 288, subdivision (a). As part of the negotiated plea, a second count of the same charge was dismissed, and appellant was referred out for a 90-day diagnostic report pursuant to Penal Code section 1203.03. It was understood that this was an open plea and that appellant could receive probation or be sentenced to prison for up to eight years.
DISCUSSION
Appellant contends the trial court abused its discretion in refusing to grant probation. "A trial court has broad discretion to determine whether a defendant is suitable for probation. [Citation.] . . . An appellant bears a heavy burden when attempting to show an abuse of discretion. [Citation.] To establish abuse, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason. [Citation.]" (People v. Bradley (2006) 142 Cal.App.4th 247, 272.)
At the probation and sentencing hearing, the court stated it had read the diagnostic study, the probation report and the files and minute orders reflecting appellants criminal history. The court noted appellant had been convicted of possession of methamphetamine, a misdemeanor, and had entered a guilty plea to forgery and been placed on a three-year grant of probation.
The diagnostic study was prepared "with the objective of assessing [appellants] potential for functioning successfully on probation or under other supervision, and the level of threat to the community if he should fail to live up to that potential. It [did not focus] on the issues of punishment, deterrence, or legal eligibility for a grant of probation . . . ." The report recommended that appellant be granted probation with stringent guidelines to address his addiction to drugs and alcohol. "[H]e verbalized good insight into his crime and displayed remorse for his actions. He admitted to the details surrounding his conviction and understood the consequences should he re-offend in the future. He admitted to his severe addiction to methamphetamine and his heavy consumption of alcohol on a daily basis." The report also stated that appellant was first arrested when he was "23 years old for driving under the influence. He attended six Alcoholics Anonymous meetings and an education class on alcohol abuse. His second arrest was for failure to pay his driving under the influence fine. His third arrest was for methamphetamine possession when he was 24 years old. His fourth arrest was for methamphetamine possession when he was 25 years old. [Appellant] reported his fifth arrest at 24 [sic] years old for petty theft. He reported his sixth arrest at 28 years old for the instant offense."
The probation report recommended a state prison commitment for the middle term. The probation officer noted that appellant "apparently[] waited until the victim was asleep to complete the molestation acts." The report listed circumstances in aggravation, that the crime was very callous and calculated and that the young victim could have long-term effects from the crime requiring long-term counseling, the victim was particularly vulnerable, the manner in which the crime was carried out indicated planning, sophistication or professionalism, appellant took advantage of a position of trust or confidence and appellants prior convictions as an adult were numerous or of increasing seriousness. The report found no circumstances in mitigation.
In the courts opinion, this was a difficult and close case. It noted appellants first sexual experiences were with very young children when he was also a child about the same age. The court observed the instant crime was not an isolated incident. Appellants actions were "ongoing [and] repetitive, and in all likelihood involved another young female." The court was also troubled by the fact that appellants drug and alcohol use began at a very young age; appellant candidly admitted he began using drugs at age 10 and alcohol by age 12, and by age 14 he was addicted to methamphetamine. The court stated appellant was drinking a 12-pack of beer a day and had some behavioral difficulties as a result; while appellant knew his conduct was wrong and reprehensible, he would not or could not discontinue his behavior. The court concluded appellant was a danger to a small segment of society, but one that needed protecting. The court additionally observed the diagnostic study did not address the issue of punishment.
Contrary to appellants claim, the trial court did not abuse its discretion in refusing to grant appellant probation. The trial court considered and weighed the appropriate factors in making that finding. Further, the court was not required to follow the recommendations of the reports submitted. (People v. Downey (2000) 82 Cal.App.4th 899, 910.)
DISPOSITION
The judgment is affirmed.
We concur:
MANELLA, J.
SUZUKAWA, J.