Filed 10/3/18 P. v. Chavez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed.

Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant Geavanni Chavez exposed himself to three teenaged girls in front of a liquor store. Following a jury trial, defendant was convicted of committing a lewd act upon a child (Pen. Code, § 288, subd. (c)(1); count 1)[1] and indecent exposure (§ 314, subd. (1); count 2). Subsequently, the trial court sentenced defendant to a total term of 18 months in state prison with credit for time served, comprised of the low term of one year on count 1, plus six months on count 2. Defendant’s sole contention on appeal is that the trial court abused its discretion in failing to grant him probation because it relied on insufficient facts in determining its sentencing choice. We find no abuse of discretion and affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

On July 4, 2016, teenaged friends, Chelsey, Kala, and Mariah, were at a liquor store in Fontana to purchase soda and chips. When Chelsey entered the store and went down an aisle, she saw defendant looking at her. Defendant appeared intoxicated. As Chelsey went to the next aisle to get sodas with Kala and Mariah, defendant went to the same aisle and quickly grabbed Chelsey’s butt while she was facing the sodas. Chelsey thought it was Kala or Mariah playing around with her, but she turned around and saw defendant, who mumbled a couple of words to her that she did not understand. Kala described the butt grab as a smack and Mariah described it as a touch. Chelsey and Mariah ran out of the store and Kala followed. Neither girl reported the incident to anyone inside the store or called the police or a parent.

The girls stood outside for about three to five minutes, waiting for defendant to leave so they could go back in and purchase their sodas. As they turned toward the store, they saw defendant again. The girls walked past him and went inside, and defendant tried to follow them. Inside the store, the girls told the store manager that defendant was following them and had grabbed Chelsey’s butt. The store owner would not allow defendant inside, so he sat outside on a fire hydrant. The store owner told the girls to wait inside the store until he called the police. After some time, the store manager walked the girls outside toward the street, so they could safely walk home.

As they walked home, the girls realized that Chelsey did not have her phone. The girls walked back towards the store so Chelsey could get her phone. As they did, Chelsey saw defendant outside the store. Defendant looked at the girls, unzipped his pants, and pulled out his penis. Defendant did not say anything to the girls. Chelsey did not see defendant’s exposed penis because she looked away. Kala and Mariah saw defendant’s penis.

The store manager came outside after hearing Kala scream. The girls told the store manager what defendant had done and asked for Chelsey’s phone. Defendant pants were pulled up when the store manager came out. The store manager asked the girls to wait where they were. He went inside the store and got Chelsey’s phone. The girls walked to a nearby friend’s house where Chelsey’s mother was attending a barbeque and told her what defendant had done. Chelsey’s mother went to the liquor store with the girls. After the girls pointed out defendant to Chelsey’s mother, Chelsey’s mother confronted defendant and called the police.

Fontana Police Officer Daniel Anderson was on patrol around 5:30 p.m. when he was dispatched to the liquor store. When he arrived, he saw defendant, who fit the description of the suspect, the three girls, and Chelsey’s mother. Officer Anderson placed defendant in the back of his patrol vehicle and then spoke with the girls while audio recording them. All three girls identified defendant as the man who had touched Chelsey’s butt and later exposed himself.

Afterwards, Officer Anderson spoke with the store manager, who did not “see anything.” The store manager did not state that he walked the girls outside, prevented defendant from entering the store, or returned a cell phone. The store only had one security camera, and it pointed only towards the cash register. After Officer Anderson read defendant his constitutional rights, he asked defendant what happened. Defendant’s response was “discrimination.” Officer Anderson believed defendant was intoxicated because defendant had bloodshot eyes, smelled of alcohol, slurred speech, and an inability to stand straight.

Following a jury trial, defendant was convicted of committing a lewd act upon a child (§ 288, subd. (c)(1); count 1) and indecent exposure (§ 314, subd. (1); count 2).

Defendant’s sentencing hearing was held on December 21, 2016. In discussing its decision whether to grant or deny defendant probation, the trial court noted that it had reviewed defendant’s Static-99R worksheet, a psychological evaluation conducted by Dr. Michael E. Kania, and the probation report. The probation report noted that defendant had a prior conviction in 2008 for driving under the influence and two prior convictions in March and August 2010 for misdemeanor vandalism and misdemeanor resisting a public officer, respectively. The probation report also indicated that defendant’s Static-99R evaluation placed defendant in the moderate-high risk category for being convicted of another sexual offense, if defendant was released on probation. Following argument, the trial court denied defendant probation and sentenced him to a total term of 18 months in state prison with 341 days in conduct credit. The court explained: “Based on the testimony presented and the report submitted, I do think this is a sustained bit of . . . criminality. It does not seem like an accident or anything less than predatory to me. Defendant engaged in a pretty sustained effort to engage in sexual conduct with the minors in this case.”

On January 11, 2017, defendant filed a timely notice of appeal.

III

DISCUSSION

Defendant argues the trial court abused its discretion in denying him probation because it relied on insufficient facts in sentencing him to prison. He therefore believes the matter should be remanded for resentencing.

“The grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]” (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) All defendants are eligible for probation, in the discretion of the sentencing court (People v. Phillips (1977) 76 Cal.App.3d 207, 213), unless a statute provides otherwise. (Aubrey, at p. 282.) Here, there were no statutory provisions limiting or prohibiting a grant of probation.

We review the trial court’s decision to grant or deny probation for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “In reviewing [the trial court’s determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.) The burden is on the party attacking the sentence to show it is irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).) Defendant cannot meet that burden.

Absent a clear showing that the sentencing decision was irrational or arbitrary, a trial court is presumed to have acted to achieve legitimate sentencing objectives. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) A single aggravating factor is legally sufficient to support a trial court’s decision to deny probation. (People v. Black (2007) 41 Cal.4th 799, 813 (Black).)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185.) California Rules of Court,[2] rule 4.414 lists criteria affecting the decision to grant or deny probation. These criteria include factors relating to the crime and facts involving the defendant. Facts relating to the crime include: “(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] . . . [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] . . . [¶] (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.” (Rule 4.414(a).) 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.” (Rule 4.414(b).)

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)

“The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506.) Accordingly, 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. (Id. at pp. 506-507.)

Here, before denying defendant probation, the trial court stated that it had received and read the Static-99R worksheet, defendant’s psychological evaluation prepared by Dr. Kania, and the probation report. The probation report listed the criteria affecting probation pursuant to rule 4.414, and noted that defendant had a prior record of criminal conduct and that his prior record indicated a pattern of regular or increasingly serious criminal conduct. The probation report also indicated that defendant had not shown remorse; that if not imprisoned, defendant would be a danger to others; that imprisonment would not seriously affect defendant; and that a felony conviction would not adversely affect defendant’s life. The probation report further noted that defendant’s score on his Static-99R evaluation placed him at a moderate-high risk category for being convicted of another sexual offense, if he was released on probation, within a five- to 10-year period. The trial court presumably relied on these reports in denying defendant probation, noting that defendant had “engaged in a pretty sustained effort to engage in sexual conduct with the minors in this case.” The court also stated that based on the testimony presented and the submitted reports, defendant had “a sustained bit of criminality” and a “risk of re-offending,” even though defendant’s prior record was “not particularly serious.” Given these circumstances, the trial court properly denied defendant probation. (See Black, supra, 41 Cal.4th at p. 813.)

Defendant claims the trial court considered improper factors in deciding whether to grant or deny probation, arguing there was insufficient evidence to support the finding he was predatory and at a risk to reoffend.[3] To support his position, defendant claims “[t]he jury’s verdict does not necessarily imply that it found [the victims] credible,” and that the evidence actually showed that he was not acting in a predatory manner. He also contends that his Static-99R score placed him “at a low rate of only 11 percent for reoffending” and that Dr. Kania opined that defendant did not pose a risk of reoffending. He further asserts that both Dr. Kania and the probation officer concluded defendant’s underlying mental health issues needed to be addressed in treatment.

Distilled to its essence, defendant’s argument is that the sentencing court should have weighed the criteria differently and placed greater emphasis on the mitigating evidence offered in support of a sentence of probation, while discounting the aggravating factors. However, as a reviewing court, it is not our function to substitute our judgment for that of the sentencing judge. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) On appeal, we may not reweigh the sentencing factors. (People v. Scott (1994) 9 Cal.4th 331, 355 (Scott).) Instead, we limit our review to a single issue—“whether the sentencing court abused its statutory discretion.” (People v. Jordan (1986) 42 Cal.3d 308, 317 (Jordan).) As previously noted, in the absence of a showing that the sentencing decision was irrational or arbitrary, we must presume the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination will not be set aside on review. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.) We may not reverse the sentencing court’s decision merely because reasonable people might disagree with it. (Carmony, supra, 33 Cal.4th at p. 377.) Furthermore, as noted above, a single factor may be determinative in the sentencing decision. (E.g., People v. Forster (1994) 29 Cal.App.4th 1746, 1758 [single factor is sufficient to justify the court’s sentencing choice].) Moreover, when sentencing a defendant, the court is not required to review in detail each of the mitigating factors upon which the defendant relies. Indeed, a court can reject all mitigating factors without explanation. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583 [court need not explain its reasons for rejecting mitigating factors].)

Simply put, defendant asks us to do exactly what the California Supreme Court has said we may not do—reweigh the sentencing factors. (Scott, supra, 9 Cal.4th at p. 355 [appellate court will not “reweigh valid factors bearing on the decision below”]; Jordan, supra, 42 Cal.3d at p. 317 [“The Court of Appeal . . . erred when it reweighed the circumstances in mitigation rather than limiting its review to whether the sentencing court abused its statutory discretion.”].) The high court has made clear the only question before us is whether the sentencing court abused its discretion. In this case, given the lower court’s “lengthy and reasoned explanation for its sentence choice,” we cannot say its decision was arbitrary and capricious. (People v. Downey (2000) 82 Cal.App.4th 899, 910.) We therefore conclude the court did not abuse its sentencing discretion in denying probation. (See People v. Kronemyer (1987) 189 Cal.App.3d 314, 364-366 [no abuse of discretion in denial of probation to 61-year-old, first-time offender convicted of perjury and theft of client funds, where thefts arose from defendant’s abuse of a position of trust created by an attorney-client relationship, defendant conducted himself in a manner demonstrating criminal sophistication, and defendant failed to show remorse], disapproved on another ground in People v. Whitmer (2014) 59 Cal.4th 733, 741-742.)

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.