P. v. Larson

Filed 8/2/07 P. v. Larson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Daphne Sykes Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.

Defendant pled guilty to two counts of lewd acts against a child. (Pen. Code,  288, subd. (a).)^[1] On appeal, he contends the trial court abused its discretion in sentencing him to the maximum lid of eight years in state prison. The People assert the appeal should be dismissed because defendant waived his appeal rights as part of the plea agreement and because he failed to obtain a certificate of probable cause. We conclude defendant did not waive his right to appeal from the trial courts exercise of its sentencing discretion, and that he was not required to obtain a certificate of probable cause. Nonetheless, we conclude the trial court did not abuse its discretion in sentencing defendant and, therefore, affirm the judgment below.

I. FACTUAL HISTORY

In May 2004, defendant and his wife attended a party at a friends house. Due to his excessive consumption of alcohol, defendant and his wife decided to spend the night. Defendant slept on the floor while his wife slept on a couch and his 12-year-old niece (Victim 1) slept on another couch. At some point during the night, defendant woke up and went over to his niece and began rubbing her stomach. He progressed to undoing her bra, fondling her breasts, unbuttoning her pants, and placing his finger inside her vagina. One week later, Victim 1 informed her mother defendant had fondled her breasts. She did not relate the full extent of the incident because she was afraid of defendant. Defendants extended family called a family meeting to discuss the incident, during which it determined that because defendant was drunk at the time and had only fondled Victim 1s breasts, it would handle the matter internally and not resort to calling the police. Approximately five months elapsed after the family meeting when Victim 1s mother got into an argument with defendant. Victim 1 then informed her mother of the full extent of the molestation. After Victim 1 went to the police, defendant turned himself in.

As the investigation progressed, additional allegations concerning other victims materialized. Defendants other niece (Victim 2), sister of Victim 1, alleged that when she was eight years old, defendant had come into the room as she was sleeping, unbuttoned her pants, and fondled her. Defendants stepdaughter (Victim 3) alleged that when she was seven years old, defendant had placed his hand on her crotch. The daughter of defendants former girlfriend (Victim 4) alleged that when she was nine years old, defendant had touched her privates on several different occasions and had forced her to touch his. Defendant admitted to incidents against Victims 1 and 4, but denied those as to Victims 2 and 3.

II. PROCEDURAL HISTORY

The People charged defendant in an amended information with four counts under section 288, subdivision (a) (lewd act upon a child), including two counts against Victim 1 and one count each as to Victims 2 and 4. Defendant pled guilty to the two counts against Victim 1. In return for his plea, the People moved for dismissal of the remaining counts and agreed to a maximum lid of an eight-year prison sentence.^[2] As part of the written plea agreement, item No. 20, initialed by defendant, reads: I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain. The court continued the matter to permit psychological evaluations of defendant and the preparation of a probation officers report to aid the court in sentencing. Ultimately, the court denied defendant probation, imposed the upper term of eight years on count 1, and the midterm of six years on count 2 to run concurrent to count 1, for a total term of imprisonment of eight years, minus custody credits. Pursuant to the Peoples motion, the court also dismissed counts 3 and 4. After sentencing defendant, the court informed him he had the right to appeal from the sentence and explained how to do so. Defendant filed an appeal on Judicial Council form No. CR-120 in which he checked the boxes indicating the appeal followed a guilty or no-contest plea and that his appeal was based on the sentence or other matters occurring after the plea. Defendant did not request or obtain a certificate of probable cause. All defendants contentions on appeal attack the trial courts exercise of its discretion in sentencing him.

III. DISCUSSION

A. This Court May Appropriately Review Defendants Contentions Despite the Lack of a Certificate of Probable Cause and Despite His Waiver of the Right to Appeal

Defendant maintains he is not required to obtain a certificate of probable cause since he is only challenging the exercise of the trial courts sentencing discretion after entry of the plea. He relies primarily on People v. Buttram (2003) 30 Cal.4th 773. The People, citing People v. Panizzon (1996) 13 Cal.4th 68, 79, counter that because defendant specifically waived his right to appeal as part of his plea agreement, the failure to acquire a certificate of probable cause is fatal to his contentions and we must, therefore, dismiss the appeal.

Section 1237.5 provides that [n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court. In Buttram, the defendant pled guilty to two drug offenses and admitted two prior serious or violent felonies. (People v. Buttram,supra, 30 Cal.4th at p. 777.) The plea agreement did not include a waiver of defendants appeal rights. (Id. at pp. 777-778.) In exchange, the parties agreed to a maximum sentence or lid of six years. (Id. at p. 777.) Without acquiring a certificate of probable cause, defendant appealed, arguing that the trial court abused its discretion in not sentencing him to drug treatment diversion. (Id. at p. 779.) The Court of Appeal dismissed the appeal for lack of a certificate of probable cause. (Id. at p. 780.) In reversing, the Supreme Court initially indicated that [i]t has long been established that issues going to the validity of a plea require compliance with section 1237.5. . . . [Citation.] [] In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.] [Citation.] (Id. at pp. 781-782.) [A]bsent contrary provisions in the plea agreement itself, a certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence. Such an agreement, by its nature, contemplates that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be. Accordingly, such appellate claims do not constitute an attack on the validity of the plea, for which a certificate is necessary. (Id. at pp. 790-791, italics added.)

In distinguishing Panizzon, which held that a certificate of probable cause was necessary to challenge a negotiated plea (People v.Panizzon, supra, 13 Cal.4th at p. 89), the court in Buttram, stated: In Panizzon, a defendant pled no contest to multiple serious felonies in return for a specified sentence of life with the possibility of parole, plus 12 years. He received that exact sentence, but then sought to appeal without obtaining a certificate of probable cause, on grounds that the negotiated sentence constituted cruel and unusual punishment. . . . he is in fact challenging the very sentence to which he agreed as part of the plea. Since the challenge attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea . . . . (People v. Buttram,supra, 30 Cal.4th at p. 782.)

Indeed, as Panizzon noted, where the sentencing decisions were clearly separate and distinct from the defendants pleas, in substance as well as temporally, any challenges to the sentencing did not implicate the validity of the pleas and therefore did not require compliance with section 1237.5. (People v. Panizzon,supra, 13 Cal.4th at p. 78.) The present factual scenario clearly falls within the general framework of Buttram. Here, when the trial court took defendants plea, it expressly reserved the right to exercise its sentencing discretion by communicating to defendant that it could impose anything from probation to the maximum eight-year lid. The prosecutor also acknowledged this discretion. Moreover, the court referred defendants case out for the preparation of a section 288.1 report and a probation officers report, specifically to aid it in exercising its sentencing discretion. Furthermore, the trial court informed defendant it would read and take everything, i.e., the probation officers report and the section 288.1 report, into consideration prior to imposing sentence. Finally, the sentencing did not take place until approximately two months later. At that hearing, the issue of what sentence to impose was vigorously argued by both parties. Thus, the imposition of sentence was clearly separate and distinct from the plea agreement, leaving discretion in the court to implement anything between probation and the maximum lid.

Of course, as the People correctly contend, defendants plea agreement did contain an express waiver of the right to appeal. As part of the written plea agreement, defendant initialed item No. 20, which reads: I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain. Initially, it must be noted that in Panizzon, the waiver of appeal rights, which the court upheld, specifically stated that the defendant waived his right to appeal from the sentence. (People v. Panizzon,supra, 13 Cal.4th at p. 82.) In People v. Vargas (1993) 13 Cal.App.4th 1653, we held that a general waiver of appeal rights did not waive the right to challenge any potential sentencing error which occurred after the waiver because it was not knowingly and intelligently made. (Id. at p. 1663.) While the present waiver is more specific, we nonetheless find that defendant did not knowingly and intelligently waive his right to appeal from the separate and distinct judgment of sentence. At the time of the taking of the plea, the defendant, both counsel, and the court specifically addressed numerous factors which would go into the courts later exercise of its sentencing discretion. Given defendants active participation in the colloquy, it is evident that he had no intention of waiving any rights relative to the courts sentencing decision. Moreover, nothing in defendants plea agreement expressly indicates he waived his right to appeal the sentence. Furthermore, the trial court explicitly informed defendant he had the right to appeal. Therefore, defendants waiver of appeal rights did not waive his right to challenge the trial courts later and separate imposition of sentence and he was not required to obtain a certificate of probable cause.

B. The Trial Court Did Not Abuse Its Discretion in Denying Defendant Probation

Defendant contends the trial court gave insufficient weight to his psychological evaluations and other mitigating factors when it denied him probation. He asserts that the unanimous conclusion in four of the psychological evaluations that he was amenable to treatment demonstrates the trial court must have disregarded those reports and abused its discretion when it denied him probation. He likewise contends his conviction for a single act of touching Victim 1s breasts and digitally penetrating her are not sufficiently culpable acts justifying a denial of probation.

The trial court enjoys broad discretion in determining whether a defendant is suitable for probation. [Citation.] (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530.) The scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion. (People v. Parmar (2001) 86 Cal.App.4th 781, 792-793.) [I]t is the judge who must ultimately evaluate the psychiatrists recommendation regarding probation . . . . (People v. Franco (1986) 181 Cal.App.3d 342, 351.)

Initially, we note the trial court explicitly indicated it had read all the psychological evaluations before it sentenced defendant. As it was entitled to, the court simply disagreed with the conclusions reached in those evaluations. As the People correctly point out, it is the judge who must ultimately evaluate the psychiatrists recommendation regarding probation . . . . (People v. Franco, supra, 181 Cal.App.3d at p. 351.) Moreover, the psychological evaluations demonstrate a disturbing lack of consistency in the information revealed by defendant and the underlying facts considered by the evaluators. In one report, defendant denies any prior arrests and describes himself as a moderate, social drinker. In another, he admits to two prior arrests and to being a binge drinker. In some reports, no mention is made of any of defendants other victims; thus suggesting those evaluators knew only of, and relied solely on, the offenses defendant was convicted of in preparing their evaluations. It is, of course, appropriate for a trial court to consider underlying dismissed counts in evaluating defendants suitability for probation. (Ibid.) Here, the trial court had before it information concerning sexual acts by the defendant against three additional victims, at least one of which the defendant admitted. Furthermore, one of the evaluations concluded that some type of formal sentence should be imposed. Thus, considering the number and severity of both the charged and uncharged incidents, the court acted reasonably in disagreeing with evaluations which were based on insufficient and inconsistent information. Hence, the court acted within its discretion when it denied defendants request for probation.

C. The Trial Court Did Not Abuse Its Discretion in Sentencing Defendant to the Aggravated Term of State Prison

Defendant further contends the trial court abused its discretion in imposing the aggravated prison term because the aggravating factors were not outweighed by the mitigating factors.

A trial courts sentencing choices are reviewed for abuse of discretion. (People v. Downey(2000) 82 Cal.App.4th 899, 909.) [T]he scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion. (People v. Parmar, supra, 86 Cal.App.4th at pp. 792-793.) [A] single factor in aggravation suffices to support an upper term. [Citation.] (People v. Osband (1996) 13 Cal.4th 622, 730.) Determining whether circumstances in aggravation or mitigation preponderate is a qualitative, rather than a quantitative, process. It cannot be determined by simply counting identified circumstances of each kind. (Advisory Com. com., 23 pt. 1B Wests Ann. Codes, Rules (2006 ed.) foll. rule 4.420, p. 253.) The trial court is not required to engage in a rote recitation of each [factor in mitigation] . . . . (People v. Osband, supra, at p. 727.)

Here, the trial court indicated it believed defendant was a person with a history of offending and not being caught. It indicated it considered defendant a significant risk to society. It referenced the other victims of the dismissed counts and its hope that the aggravated sentence would procure justice for all defendants victims. Finally, the trial court officially agreed with and adopted the factors in aggravation listed in the probation officers report. Thus, the trial courts stated factors, as well as others found in the record, significantly outweighed any mitigating factors, such that the court properly imposed the aggravated term.

Defendant contends the trial court minimized a number of mitigating factors; however, many of the factors he identifies suffer from the defect of being viewed myopically. He asserts as mitigating factors the expert recommendations regarding his amenability to treatment and low risk of reoffending, without noting the inconsistencies and omissions contained therein. He cites his extensive family support, but does not reference the letters from family members which strongly urged the court to impose a prison sentence. He comments on his insignificant criminal history without noting his two prior DUI arrests and the number of charged, but dismissed, and uncharged incidents involving sexual contact with minors. Indeed, the sheer number of victims and incidents, as well as the degree of youth of those victims, is alone a sufficiently rational basis for imposing the maximum lid. When combined with the other factors noted above, we conclude there was a reasonable basis for imposing the aggravated term such that the trial court did not abuse its discretion.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] State prison confinement for a violation of section 288, subdivision (a) is three, six, or eight years. ( 288, subd. (a).)