P. v. Alvarado

Filed 10/11/06 P. v. Alvarado CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Pursuant to a negotiated disposition, appellant Jose Luis Alvarado entered a no contest plea to lewd act with a child under 14 years of age in violation of Penal Code section 288, subdivision (a). In exchange for the plea, the trial court indicated a sentence of “not more than three years in state prison” and dismissal of a remaining count. Appellant was sentenced in accordance with the negotiated disposition, receiving a low-term sentence of three years in state prison and dismissal of the remaining count.

The sole contention on appeal is that the trial court abused its discretion in denying appellant probation. We find no abuse of discretion and affirm.

DISCUSSION

Appellant acknowledges that the granting or denial of probation is a matter directed to the sound discretion of the trial court and this exercise of discretion will not be disturbed on appeal absent a manifest abuse. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) The probation report, which the trial court considered, recommended a denial of probation: “Pursuant to Rule of Court 4.414, the defendant should be denied probation based on the seriousness of the crime, the vulnerability of the victim in view of his young age, the lack of remorse expressed by the defendant, and that his prior criminal record includes a misdemeanor conviction for violation of Section 647.6(a) of the Penal Code (Annoy/Molest Children).” The report describes the offense as follows: “[T]he defendant, while babysitting the victim, age 5 at the time, made him touch his erect penis. The defendant admitted to police that at the time he was watching an adult movie in his room and that he dragged the victim’s hand over his erection.” The victim was the five-year-old son of appellant’s cousin.

In denying probation, the trial court stated: “Based on all of that, the thing that just jumps out at the Court is the age of the victim. He’s five years old. My gosh, that’s just inexcusable. And under the circumstances, given the nature of this offense, certainly the age of the victim, I just don’t feel that a probationary sentence is appropriate.”

Although it seems clear from the court’s statement that it was relying upon the totality of circumstances concerning appellant and the offense, appellant focuses on the court’s reference to the young age of the victim and argues that this was an “improper factor” because age is “an element of the crime itself.” The court’s reference to the victim’s age was appropriate under the facts of this case.

In People v. Garcia (1985) 166 Cal.App.3d 1056, the defendant was convicted of forcible molestation of a child under 14 years of age. The child victim was two and one-half years old. In upholding the imposition of an aggravated term, the court recognized that “extreme youth within the given age range” may be an appropriate factor for determining victim vulnerability. (Id. at p. 1070.) “The victim was two and one-half years old. This extreme youth coupled with her close relationship to the defendant clearly supports the court’s finding of vulnerability. [Citations.]” (Id. at p. 1070.) As the Attorney General argues, “Clearly, a defendant who molests a victim who is nine years younger than the statutory cut-off of 14 years is more culpable than a defendant who molests a victim only one or two years younger than the statutory limit. As Garcia held, this is even more true in view of the victim’s ‘close relationship to the defendant.’ [Citation.]” Here, appellant was related to the five-year-old victim and was babysitting the victim at the time of the crime.

Under the entire facts and circumstances of this case, we conclude that there was no abuse of discretion by the trial court in denying appellant probation.

Judgment affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.