P. v. Miller

Filed 9/28/06 P. v. Miller CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Modoc)

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Defendant Christopher David Miller pleaded guilty to oral copulation of a child under the age of 14. (Pen. Code, § 288a, subd. (c)(1).) The trial court sentenced defendant to the middle term of six years.

On appeal, defendant contends the trial court abused its discretion by imposing the middle term rather than the low term. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 20, 2004, R., her boyfriend, J.C., her seven-year-old son (the victim), her daughter, and defendant, were repairing a fence on J.C.’s property. The day was warm, so R. told the victim to go into the barn to get some water. Defendant went into the barn with the victim and orally copulated him. Defendant told the victim not to tell anyone, but the victim told his mother about the incident the next day.

Before sentencing, defendant moved for a hearing under Welfare and Institutions Code section 6500 to commit defendant to a state hospital rather than prison. The trial court denied the motion, denied probation, and imposed the middle term of six years.

DISCUSSION

Defendant’s sole contention is the trial court’s decision to sentence defendant to a middle term was an abuse of discretion. He asserts that in light of defendant’s mental disability and other mitigating factors, a low term was the only appropriate sentence.

“‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997)

14 Cal.4th 968, 977-978.)

Defendant’s burden is even greater because he attacks the presumptively correct sentence. Penal Code Section 1170, subdivision (b), provides in part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” California Rules of Court, rule 4.420(b), provides in part: “Selection of the lower term is justified only if, considering the same facts, the circumstances in mitigation outweigh the circumstances in aggravation.”

Before sentencing, the trial court ordered a mental evaluation of defendant pursuant to Penal Code section 288.1 and a diagnostic evaluation pursuant to Penal Code section 1203.03. Defendant has an I.Q. of 76 on the Wechsler scale, which is considered “within the borderline range . . . .” He “has had difficulties with learning, adaptive behavior and social skills throughout his life.” Defendant’s “intellectual functions would appear to be just above the borderline level or a very low normal.” Defendant’s “social awareness is much less than that which would be expected of someone his age, . . .” A psychologist for the Modoc County Department of Health Services concluded defendant “does not present as particularly malicious or psychopathic” and “it should not be assumed that [he] is incapable of modifying his behavior, with effective assistance.”

Defendant asserts additional mitigating factors to support his claim. Defendant was diagnosed with attention deficit disorder and dyslexia. The probation report identified other mitigating factors such as the victim “was not especially vulnerable” relative to other victims of this crime, and had “suffered no physical injury; . . .” The victim’s mother “stated her son does not appear to have suffered long lasting emotional problems[,]” and the crime lacked “criminal sophistication or professionalism.”

A trial court has “wide discretion in weighing aggravating and mitigating factors.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) It may “‘minimize or even entirely disregard mitigating factors without stating its reasons.’ [Citation.]” (Ibid.) A trial court does not even have to state its reasons for imposing a middle term. (People v. Keeton (1992) 10 Cal.App.4th 1125, 1132.)

The trial court reviewed the probation report, psychological assessments, victim statements, and defendant’s criminal record. Defendant has a history of sexual offenses against children, and his victim was seven years old. The Penal Code section 1203.03 evaluation concluded “there is a high probability he will molest a child in the future.” Defendant posed “an extreme danger to the children of the community by the behavior he has demonstrated as evidenced by his multiple sex offenses involving children at his young age.”

The trial court was not arbitrary or irrational in imposing a middle term on defendant. His claims to the contrary are without foundation.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

SIMS , Acting P.J.

RAYE , J.

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