P. v. Holbea

Filed 6/13/07 P. v. Holbea CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

‑‑‑‑

Charged with three counts of sexual misconduct against his stepdaughter, defendant Ioan Holbea entered a negotiated plea of no contest to the charge of committing a lewd and lascivious act upon a child under 14 (Pen. Code,  288, subd. (a))^[1]and received a sentence of six years in state prison.

On appeal, defendant contends his sentence must be vacated and the matter remanded because the trial court erred in (1) finding him presumptively ineligible for probation under section 1203.066, and (2) denying probation in part based on the courts own unsupported diagnosis that defendant suffers from obsessive-compulsive disorder, contrary to the opinion of the court-appointed psychologist. Defendant also contends his trial counsel was ineffective for failing to bring these matters to the courts attention at sentencing, and that the court erred in imposing a $20 court security fee.

We agree that the trial court erred in finding that section 1203.066 rendered defendant presumptively ineligible for probation, and shall remand for the courts further exercise of its discretion in determining whether to grant probation.

FACTUAL AND PROCEDURAL BACKGROUND

Given defendants no contest plea in this case, we summarize the background facts chiefly from the probation report.

Defendant lived with his wife and stepdaughter, A., in Sacramento. In or about 1999, while defendant was out of work with a back injury and at home alone with his 10-year-old stepdaughter, he touched and kissed her breast and genitals, and put his penis in her mouth. A. later reported to police that defendant and she engaged in this sexual conduct approximately 20 times between 1999 and 2005, when the family moved from Sacramento to Yuba County. Thereafter, A. refused to engage in sex acts with defendant.

In or about May 2005, defendant told his then 16-year-old stepdaughter he was sorry he had raped her while she was sleeping. Although A. did not know to which incident defendant was referring, she recalled that on a few occasions in the previous month or two she had awakened with a strange medicinal taste in her mouth, and came to believe defendant had placed some type of pill in her mouth as she slept.

In June 2005, defendant told A. that he had made a videotape of her having sex with him and threatened to show it to her mother if A. did not continue to engage in sex acts with him. Defendant also told A. that her mother would not love either of them if she saw the tape.

A. then told her mother what had happened, and made a police report.

When he was questioned by police, defendant admitted he had engaged in oral sex with A. seven or eight times while they lived in Sacramento and that he had continued to pressure A. for sex after she refused, but claimed he was often drunk during these episodes and that A. had sometimes been the aggressor. Defendant claimed he made up the story about the videotape of the two of them engaged in sex acts.

Defendant was ultimately charged with attempting to commit an act of oral copulation with a minor in June 2005 ( 664/288a, subd. (b)(1)), committing continuous sexual abuse of a child under 14, including acts of substantial sexual conduct, between September 1999 and March 2005 ( 288.5, subd. (a)) and committing a lewd and lascivious act upon a child under the age of 14 between September 1999 and March 2003 ( 288, subd. (a)‑‑count III).

At the change of plea hearing, the court told defendant, youre statutorily prohibited from being granted probation unless the Court makes an unusual case finding. That could not happen unless your attorney provided the Court with a favorable report from a psychologist or psychiatrist.

Defendant then entered a negotiated plea of no contest to the lewd and lascivious conduct charge, in exchange for dismissal of the remaining charges. The prosecutor recited the factual basis for the plea as follows: [B]etween September 1st, 1999 and March 26th, 2003, the defendant willfully and unlawfully committed lewd and lascivious acts with [A.], . . . a child under the age of 14, by placing his mouth on her vagina and defendant did so with the specific intent to arouse or gratify his sexual desires. Defendant agreed that at the time of sentencing the Court can consider such facts to be true.

On the date initially scheduled for sentencing, defense counsel requested the court to make the findings under [California Rules of Court, rules 4.413]^[[2]] and [4.414]^[[3]] and order a [sexual offender evaluation under section] 288.1^[4]be prepared. He argued that defendant is an excellent candidate for probation. He has a minimal record, was working full time up until when this event occurred. Hes genuinely remorseful, and . . . his use of Vicodin at the time of the offense may in some manner mitigate his behavior.

Although the court expressed concerns‑‑[o]ne finding with which I have a problem is whether the grant of probation would be in the interests of the child; I dont know how Im going to learn that; and [t]here may or may not be a threat of physical harm‑‑it granted counsels request for a section 288.1 evaluation.

Clinical psychologist Don Stembridge, Ph.D., interviewed defendant and submitted a written report. Dr. Stembridge concluded (based on a series of diagnostic tests^[5]and an interview) that defendant is not a pedophile; rather, he appears to be a man who used very poor judgment while under the influence of alcohol and Vicodin and engaged in fondling and oral sex with his stepdaughter several years ago. Following this, he appears to have become fixated on attempting to continue some sort of sexual relationship with her as she became older. Dr. Stembridge opined that defendant presents a relatively low risk for sexual reoffense or any other type of criminal reoffense; has a [g]ood [p]rognosis for a positive treatment outcome (in part because [a]lthough he continues to tend to place some of the blame for the sexual offense on the victim, he does appear very remorseful about his illegal sexual behavior and is quite aware that any reoffense would result in a significant period of incarceration); and appears to present no ongoing threat of harm to the victim. Finally, Dr. Stembridge opined that defendant suffers from no personality disorder, i.e., has [n]o [d]iagnosis [o]r [c]ondition [o]n Axis‑II.

The presentence probation report recommended against granting defendant probation because (among other reasons) defendant is statutorily ineligible for probation without a favorable report pursuant to [s]ection 288.1 . . . . He is also statutorily ineligible for probation pursuant to [s]ection 1203.066[, subdivision] (a)(8) unless the Court makes a special finding pursuant to all the criteria listed under [s]ection 1203.066[, subdivision] (c) . . . . It does not appear that the Court can make those findings because a grant of probation would not be in the best interest of the child.

In his presentence statement to the probation officer, defendant claimed he and A. only engaged in sex acts on two or three occasions and that his drinking and pain medications contributed to his actions.

Prior to sentencing, defendants now ex-wife submitted a four-page victim impact statement in which she reported that A. has been deeply hurt by defendant, and fears him. She wrote that defendant dismisses what he has done, as if it were not so bad, not so serious, not a crime. He is not sorry. He is very angry with [A.] for telling; he blames [A.] for him being in jail. He believes that what is happening to him is my daughters fault. [] I am worried about [A.]. [A.] is having problems; she does not trust anyone, she does not trust me. She does not want to talk to me about what has happened and about how she feels. Defendant writes to family acquaintances that [A.] seduced him; that she was in heat, like a dog is in heat and his letters to people we know, and to my family are threatening; they threaten me, they threaten [A.], and he threatens the children [A.] might have someday.

At sentencing, the court stated it had considered the probation officers report, Dr. Stembridges opinion, and the victim impact statement by A.s mother. Following argument by counsel, the court ruled:

There are certain findings that I had to make for there to be a referral for a [section] 288.1 [evaluation], and if I recall correctly, there [were] something in the neighborhood of five. I was able to make three and on two, if memory serves me, it indicated I didnt know one way or the other. I still dont know one way or another, I am not prepared to make those findings.

The references on page 25 [of Dr. Stembridges report] [are] of concern. This was not a one-time event. And we may be intoxicated at some point in time, but most everybody after being intoxicated and doing something stupid sobers up and realizes that he or she has done something stupid and makes efforts to avoid it in the future.

Dr. Stembridge has rendered no diagnosis or condition on Axis-II from my reading of the report. I dont agree with that assessment. I think we have an obsessive‑compulsive disorder.

I am not going to grant probation. Probation will be denied and [defendant] is sentenced to the midterm of six years in [state] prison.

DISCUSSION

Defendant contends on appeal the trial court applied the wrong statute and standards in assessing his application for probation, and urges us to remand for resentencing.

I

We first pause to reject the Attorney Generals assertion that defendants contentions are not cognizable on appeal because he did not first obtain a certificate of probable cause; according to the Attorney General, defendants appeal constitutes a challenge to the validity of his plea. (People v. Panizzon (1996) 13 Cal.4th 68, 76.)

The requirement of section 1237.5 that defendant obtain a certificate of probable cause does not apply to a claim that the trial court abused its discretion by denying probation when, as here, the question whether to impose the negotiated maximum sentence or to place defendant on probation is left to the trial courts discretion at an adversary hearing subsequent to the plea. (People v. Buttram (2003) 30 Cal.4th 773, 785-786; see People v. Shelton (2006) 37 Cal.4th 759, 770.)

II

The grant or denial of probation is within the trial courts discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) In reviewing a grant of probation, we generally apply the abuse of discretion standard. [Citations.] Abuse of discretion, in turn, depends on whether the trial courts order exceeds the bounds of reason. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1225.) However, an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. (Aubrey, supra, 65 Cal.App.4th at p. 282.) Obviously, a decision which simply ignores statutory requirements constitutes an abuse of discretion. (Dorsey, supra, 50 Cal.App.4th at p. 1225.) Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. [Citations.] [Citation.] A court cannot exercise that informed discretion where it is unaware of the scope of its discretionary powers. (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247-1248 (Bruce G.).)

Defendant contends the trial court mistakenly believed him presumptively ineligible for probation under (former) section 1203.066, subdivision (c). The contention has merit.

When the crime to which defendant pleaded was committed, section 1203.066 provided in material part:

(a) Notwithstanding Section 1203 or any other law, probation shall not be granted to . . . any of the following persons: [] . . . []

(8) A person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age. [] . . . []

(b) Substantial sexual conduct means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.

(c) Paragraph[] . . . (8) . . . of subdivision (a) shall not apply when the court makes all of the following findings:

(1) The defendant is the victims . . . stepparent . . . .

(2) A grant of probation to the defendant is in the best interest of the child.

(3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation . . . .

(4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. . . .

(5) There is no threat of physical harm to the child victim if probation is granted. . . . [] . . . []

(d) The existence of any fact that would make a person ineligible for probation under subdivision (a) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the jury trying the issue of guilt . . . . (Stats. 1997, ch. 817,  13, italics added; see Bruce G., supra, 97 Cal.App.4th at pp. 1246, fn. 15.)

We agree with defendant that the courts findings reflect its belief that this section governed its decision whether to grant defendant probation. It found, prior to ordering a section 288.1 evaluation, that [d]efendant is the victims stepparent. A grant of probation may be in the best interest of the child . . . . [D]efendant is removed from the household of the victim, and [t]here may or may not be a threat of physical harm. The probation report expressly referred to section 1203.066.

But were the existence of facts rendering defendant statutorily ineligible for probation (1) alleged in the accusatory pleading and (2) admitted by defendant in open court, as required, before section 1203.066 may apply? The answer is, No.

Count III, to which defendant entered a no contest plea, alleged that he did willfully and lewdly commit a lewd or lascivious act upon or with the body or any part or member thereof, of a child under the age of [14] years, with the intent of arousing, appealing to or gratifying the lust, passions or sexual desires of the said defendant or said child. It contains no allegation of substantial sexual conduct. The first prong of section 1203.066, subdivision (d) is not met, and defendants no contest plea to that charge did not constitute an admission of substantial sexual conduct.^[6]

When the trial court mistakenly concludes that the pled and proven provision of subdivision (d) has been met, so as to trigger application of section 1203.066, the proper remedy is a remand for resentencing. (Bruce G., supra, 97 Cal.App.4th at p. 1248; People v. Sherrick (1993) 19 Cal.App.4th 657, 661; see also People v. Rodriguez (1998) 17 Cal.4th 253, 257.) Accordingly, we shall remand.^[7]

DISPOSITION

Defendants conviction is affirmed. His sentence is vacated and the matter is remanded to the trial court for resentencing.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

CANTIL-SAKAUYE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] Further rule references are to the California Rules of Court.

Rule 4.413 (as amended July 1, 2003) states:

(a) The court shall determine whether the defendant is eligible for probation.

(b) If the defendant comes under a statutory provision prohibiting probation except in unusual cases where the interests of justice would best be served, or a substantially equivalent provision, the court should apply the criteria in subdivision (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

(c) The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(i) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence.

(ii) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) A fact or circumstance not amounting to a defense, but reducing the defendants culpability for the offense, including:

(i) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence.

(ii) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation.

(iii) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

^[3] Rule 4.414 (as amended July 1, 2003) states:

Criteria affecting the decision to grant or deny probation include:

(a) Facts relating to the crime, including:

(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 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.

(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.

(b) Facts relating to the defendant, including:

(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 on probation or parole and present probation or parole status.

(3) Willingness to comply with the terms of probation.

(4) Ability to comply with reasonable terms of probation as indicated by the defendants 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 defendants life resulting from the felony conviction.

(7) Whether the defendant is remorseful.

(8) The likelihood that if not imprisoned the defendant will be a danger to others.

^[4] The relevant version of section 288.1 (Stats. 1995, ch. 935,  2, p. 7091, eff. Jan. 1, 1996) states: Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, [or] from a reputable psychologist who meets the standards set forth in Section 1027, . . . as to the mental condition of that person.

^[5] Dr. Stembridge cautioned that actuarial risk assessment instruments have the limitation of being normed on sex offenders from the United States and Canada and defendants native culture and language are Romanian.

^[6] We reject the Attorney Generals assertion, unsupported by any citation to authority, that the pleading requirement of section 1203.066, subdivision (d) was met when the trial court orally informed defendant before he entered his no contest plea that he was statutorily prohibited from being granted probation unless the Court makes an unusual case finding.

^[7] A remand for resentencing would be an idle act if it would be an abuse of discretion to grant probation in this case. (See Bruce G., supra, 97 Cal.App.4th at p. 1248.) While we express no opinion as to the propriety of granting probation in this case, the record does not indicate that a decision to grant probation would be an abuse of discretion.