Opinion
C087561
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY LEE TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F17-000368)
After a jury found defendant Timothy Lee Taylor guilty of committing a lewd act upon a child, the trial court ruled that defendant was ineligible for probation and sentenced him to a six-year term in state prison. Defendant contends the trial court, in making that ruling, prejudicially erred in relying on his refusal to admit guilt and express remorse, thereby violating his federal constitutional rights to due process and against self-incrimination. We will affirm.
BACKGROUND
In June 2017, M.M. was nine years old, staying at her father's house, and sleeping in the living room. A few weeks before the incident at issue, defendant began sleeping in the same living room, on a different couch.
Defendant was M.M.'s father's cousin. M.M.'s father considered defendant to be "like a brother," and members of the household called him "Uncle Tim."
One morning after M.M. awoke in the living room, defendant told her to come to him, where he was reclining on a couch. No one else was in the living room. M.M. went and stood in front of defendant, who said, "Don't tell," and then put his fingers inside M.M.'s underwear and touched her "front private parts" for three seconds.
M.M. went back to her couch, and looked over at defendant, who "put his finger through the fist" of his other hand. M.M. told defendant that she was going to the bathroom, but she went outside and cried because she was scared, and did not know whether to tell her father.
M.M. did tell her father, and he testified that she was "teared up" when she told him, "Dad, that guy in that room touched me."
Defendant testified that he did not put his hand inside M.M.'s underwear and did not touch her inappropriately. The night before the incident, while he was watching television in the living room, M.M. wanted to watch something else, but defendant told her that she could watch TV when his show was over. Defendant testified M.M.'s father observed that interaction, and took defendant's side, because he wanted M.M. to go to sleep.
On the morning in question, defendant awoke to the TV "blaring" loudly, and shouted at M.M. to lower the volume or turn off the TV. M.M. lowered the TV volume and told defendant that she was going to the bathroom, and defendant remained on his couch.
Two or three minutes later, M.M.'s father entered the living room and told defendant, "[M.M.] says that you are touching her." Defendant denied it that morning, and denied it in a "pretext" telephone conversation arranged by law enforcement that he had with M.M.'s mother.
M.M.'s father recalled a "battle over the T.V." between M.M. and defendant, and explained that defendant and M.M. sometimes argued about the TV volume.
A jury found defendant guilty of committing a lewd or lascivious act upon a child under 14 years of age. (Pen. Code, § 288, subd. (a).)
Undesignated statutory references are to the Penal Code.
In a presentence report, a Nevada County probation officer recommended that defendant was both eligible and suitable for probation. The report noted, in connection with a decision whether to grant probation, one relevant criterion was defendant's failure to express remorse for his crime.
The report included impact statements by M.M. and her mother. In her impact statement, M.M. explained that defendant "got in [her] mind," and she had bad dreams about what happened. M.M.'s mother's impact statement expressed "hope for the maximum sentence," and fears that defendant would "not accept his demons" and would "retaliat[e] upon release."
In his sentencing brief, defendant maintained his innocence, and argued he "should not be punished more harshly because he denies the charges, shows no remorse, or 'doesn't accept responsibility.' "
Defendant submitted a comprehensive sex offender forensic psychological evaluation with his sentencing brief. The evaluating psychologist concluded that defendant posed a low risk to low/moderate risk of harm to the victim if probation were granted, and had a "fair prognosis" for a positive outcome vis-à-vis sex offender treatment.
The psychologist noted that defendant had a "somewhat ambivalent attitude toward participating in sex offender treatment." "[Defendant] said he would attend sex offender treatment, but would maintain his innocence and not admit to something he did not do." Therefore, the psychologist recommended defendant "be referred to a certified sex offender therapist who adopts evidence-based practices, which do not necessarily call for a participant's admission of guilt." Otherwise, the psychologist warned, defendant would be "set[-]up for failure in [a] treatment program" "that requires an admission of guilt as a prerequisite to treatment."
The evaluation explained that defendant claimed " '[t]he Lewd or Lascivious charge was created to get me on the Brandishing a Gun case. The police took all my guns against the law, and so convicting me on the Lewd or Lascivious charge was their way of winning the gun case because now I'm a felon who can't have guns or ammunition.' "
The evaluation included a personality assessment, which suggested a diagnosis of "Unspecified Anxiety Disorder and Narcissistic, Compulsive and Dependent Personality Traits."
At the sentencing hearing, defendant's counsel insisted defendant "has the right to continue to disagree with the charges, despite the jury's verdict and not be punished for that."
The trial court ruled defendant was ineligible for probation pursuant to section 1203.066, subdivision (d), and imposed a term of six years in state prison. The trial court noted it read the probation officer's presentence report, defendant's sentencing brief, and the forensic psychological evaluation, and ruled:
"I'm going to deny probation. Defendant . . . is ineligible for probation unless the terms and conditions set forth in [section] 1203.066(d)(1) are met. . . . I find that the conditions have not been met.
"I find that [defendant's] amenability to treatment is questionable, in part in that [defendant] continue[s] to deny having committed the offense, although as [defense counsel] pointed out that is not necessarily a determinative factor. Also that [defendant] [is] somewhat ambivalent about participating in a sex offender treatment program. . . .
"I also find that the risk of harm to the victim if probation is granted cannot be adequately addressed when considering [defendant's] continued denial that the offense was committed, [defendant's] anger about what [he] feel[s] is a false conviction, [defendant's] lack of empathy for [his] victim, [defendant's] belief that the underlying charge was somehow created to get [defendant] on the brandishing a gun case so [his] weapons and ammunition would be taken away, and the results of the [ ] personality assessment, the details of which are set forth in [the forensic evaluation] . . . .
"In addition to that, I considered the concerns expressed by both the victim and her mother regarding concerns of retaliation. Even if I didn't make-even if I found that the conditions for probation under [section] 1203.066(d)(1) had been met, I believe there are still sufficient reasons to deny probation and would so deny probation for the following reasons: The vulnerability of the victim given her age at the time of the offense, which was nine, the position of trust the defendant had in the relationship to the victim who considered him an uncle.
"The defendant did inflict emotional injury in light of the victim's impact statement. . . . So any one of those reasons that I just stated would be sufficient to deny probation standing alone and I think [each] is a sufficient reason to justify and warrant a denial of probation in this case."
DISCUSSION
On appeal, defendant challenges the trial court's ruling that he was ineligible for probation under section 1203.066, subdivision (d)(1). He argues the trial court improperly relied on his personality assessment, his lack of remorse, and the victim's mother's fear of retaliation, and unconstitutionally penalized him for maintaining his innocence. We need not address these contentions because we conclude the trial court did not abuse its discretion in concluding that whether or not defendant was eligible for probation under section 1203.066, the court nevertheless would exercise its discretion to deny probation.
Section 1203.066, subdivision (a) lists nine factors that render a child molester ineligible for probation, none of which apply to defendant. Subdivision (d)(1) of section 1203.066 provides that where subdivision (a) does not apply, probation may be granted for a section 288 conviction only if certain enumerated conditions are met, including feasible rehabilitation of defendant, amenability to undergoing treatment (§ 1203.066, subd. (d)(1)(B)), and the absence of a "threat of physical harm to the victim" (§ 1203.066, subd. (d)(1)(E)).
We review the trial court's ruling for abuse of discretion. (See People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091 ["The decision whether to grant or deny probation is reviewed under the abuse of discretion standard"].) In determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Cf. People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 680-682 [substantial evidence review of findings of fact regarding juvenile's fitness for treatment under the juvenile court law, and "a determination of fitness resting on a finding unsupported by substantial evidence is necessarily an abuse of discretion"].)
Defendant argues that the trial court abused its discretion in denying him probation based on improper factors, warranting remand for resentencing. We find this contention without merit because, even assuming the trial court erred in relying in part on defendant's refusal to admit guilt and express remorse to find defendant ineligible for probation, such reliance was harmless because "it is not reasonably probable" that defendant would have obtained a more favorable result had the alleged error not occurred. (See People v. Watson (1956) 46 Cal.2d 818, 837; People v. Gutierrez (1987) 195 Cal.App.3d 881, 884-885 [resentencing not required despite trial court's error regarding interpretation of § 1203.066, subd. (c)(1), because, applying Watson, it was not reasonably probable the court would have found defendant eligible for probation had the error not occurred].)
This is so because the trial court explained that even if defendant were eligible for probation, the trial court would have denied probation as a matter of discretion. (See People v. Jeffers (1987) 43 Cal.3d 984, 1000 [discussing probation under § 1203.066 and explaining, even when "the court has determined [ ] that the defendant is eligible for probation," "the court must exercise its discretion . . . to determine whether probation is appropriate"].)
As the trial court's sentencing statement makes clear, the court's reasoning showed why defendant was not a suitable candidate for probation (pursuant to Cal. Rules of Court, rule 4.414 (criteria affecting probation)), even if he were eligible for it. Specifically, the trial court explained that it would have denied probation for "any one" of three reasons: the victim's vulnerability, given her age at the time of the offense (rule 4.414(a)(3)), that defendant inflicted emotional injury on the victim (rule 4.414(a)(4)), and the position of trust defendant took advantage of to commit the crime (rule 4.414(a)(9)).
California Rules of Court, rule 4.414 provides: "Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. [¶] (a) Facts relating to the crime[.] Facts relating to the crime include: [¶] (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and [¶] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime. [¶] (b) Facts relating to the defendant[.] Facts relating to the defendant include: [¶] (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] (2) Prior performance and present status on probation, mandatory supervision, postrelease community supervision, or parole; [¶] (3) Willingness to comply with the terms of probation; [¶] (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [¶] (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others."
Further rule references are to the California Rules of Court.
That reasoning was well within the trial court's discretion. The victim was nine years old and sleeping in the same room as defendant, a man she called her "uncle," and whom her father treated like a brother. One morning, as the victim awoke and was alone with defendant, he called her over, told her, "Don't tell," and then placed his hand inside her underwear for three seconds. After the victim returned to her bed/couch, defendant made an obscene gesture with his hands as she looked on. The victim had bad dreams about the incident. These facts permit the conclusion that defendant abused his position of trust in the house and inflicted emotional injury on a vulnerable victim.
Given the thoroughness of the court's analysis, we can see no reasonable probability the court would impose a different sentence on remand. (See People v. Coelho (2001) 89 Cal.App.4th 861, 889 [it would be an "idle act" to remand for resentencing if it is not reasonably probable the court would impose a different sentence].) Therefore, defendant cannot show prejudice from the alleged errors by the trial court in finding him ineligible for probation.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. DUARTE, J.