P. v. Perez

Filed 6/21/07 P. v. Perez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Carol Koppel, Retired Judge. Affirmed as modified.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________________

Defendant and appellant Luis Alberto Perez pled no contest to one count of lewd act upon a child in violation of Penal Code section 288, subdivision (a).^[1] On January 18, 2006, defendant was placed on probation for a period of five years, with conditions including a term of 365 days in the county jail, participation in a one year plan for counseling, and an order to stay away from and not contact the victim, Steven P. Probation was formally revoked following a contested hearing. Defendant was sentenced to state prison for the midterm of six years. This timely appeal is taken from the judgment (order revoking probation).

Defendant raises the following issues on appeal: (1) the evidence was insufficient to support the finding of a probation violation; (2) the trial court abused its discretion in refusing to reinstate probation; (3) the trial court abused its discretion in sentencing defendant to the midterm of six years; (4) any failure to object to the use of subsequent events to impose the midterm or other sentencing errors was ineffective assistance of counsel; and (5) the $1,200 restitution and parole revocation fines must be reduced to $200.

We conclude defendants challenges to the revocation of probation and the state prison sentence are without merit. However, the restitution fine and parole revocation fines must be reduced to $200. As modified, the judgment shall be affirmed.

THE PROBATION VIOLATION HEARING

At the commencement of the formal probation violation hearing, the trial court indicated there were three alleged violations: (1) defendant did not enroll in or attend a sexual abuse counseling program; (2) defendant failed to update his section 290 registration; and (3) defendant violated the order prohibiting contact with the victim.

As reflected in the minute order dated June 23, 2005, defendant was ordered to stay at least one hundred yards away from the victim, Steven P., and not to have any contact with him. When defendant entered his no contest plea on July 19, 2005, the stay away and do not contact order remained in effect. Defendant was committed to state prison after his plea for purposes of a diagnostic study pursuant to section 1202.03.

Deputy Probation Officer (DPO) John Reese supervised defendants probation, which went into effect on January 18, 2006. DPO Reese ordered defendant to enroll in the Child Sexual Abuse Program (CSAP). The clinical director of CSAP, Bill Taylor, indicated to DPO Reese that there was no record defendant had enrolled. DPO Reese believed defendant did register as a sex offender pursuant to section 290, and defendant did report that he had moved from Lancaster to Los Angeles. DPO Reese did not believe defendant had violated his registration obligation.

According to the testimony of Margarita R., defendant joined the church her family attended along with the P. family, including victim Steven P. Defendant befriended Mrs. R.s son. Eventually, the R. family decided to take defendant into their home to help him. Defendant had a conflict with an older R. son and was too close with 16-year-old Tyan R., who was one of the R. children. Defendant lived with the R. family for a little more than one year before being asked to leave the R. home because he would not follow the rules.

The P. family and R. family were not related. However, the two families were very close and treated each other as if they were related. Tyan is like a cousin to Steven.

After defendants no contest plea, but before he was placed on probation, defendant sent a series of correspondence to the R. family. The first letter addressed to Tyan was dated November 24, 2005. Another letter addressed to Tyan was dated December 26, 2005. Additional letters were dated January 1 and January 17, 2006. Defendant sent an undated Christmas card from state prison to the R. family and another to the P. family.

Mrs. R. intercepted the letters addressed to Tyan. She was concerned over the content in that defendant wrote of returning and acting like a family with the P. family. Mrs. R. gave the letters to a deputy sheriff. She did not want her children to have any contact with defendant.

Racquel P., Stevens mother, saw the letters written by defendant. One letter indicated defendant was aware he was not to contact the P. family, but that they will hear from me in due time. Mrs. P. was most disturbed by the letter dated January 17, 2006. It contained a reference to a character in a book who was short in stature with a raspy voice, similar in description to her son Steven. The letter made disturbing references to the characters love for basketball, which Steven shared. Defendant referred to Steven in the letter as BB, apparently a pet name he used for the boy. Mrs. P. was upset that defendant continued to use that nickname after the arrest for molesting Steven. Defendant asked in the letter that Steven be given a big hug. Defendant wrote that its not over and he wanted to come back. Mrs. P. also saw a Christmas card containing pictures of Steven with a basketball and referring to her and her husband as mom and dad.

The last of the letters introduced into evidence was dated January 17, 2006. The following Saturday, defendant came to the R. house. He knocked on the door, asking to be let in and saying he did not want to leave. Defendant asked for their bishops phone number. Mr. R. handed defendant the bishops number, after which defendant left.

On the same day defendant went to the R. residence, Mrs. P. received a call from defendant. He said, This is Luis. Sorry to bother you. Mrs. P. hung up immediately. Mrs. P. could tell defendant was out of custody because the call did not go through the jail, as compared to earlier calls defendant made while in custody. The call came at about 1:00 p.m., when she normally would not be home because she would be taking care of her ill father. Defendant was aware of the familys patterns on the weekend. She was not aware defendant had been released from custody at the time of the call.

Defendant testified that he was sent to CSAP by probation. He attended one session before moving out of the area. He did not enroll in Los Angeles after he moved. Defendant admitted he attended only one session of the sexual abuse counseling program, and he did not enroll after moving to Los Angeles. Probation was granted January 18, 2006; he did not write any letters after that date. He went to the R. residence on one occasion after being released from custody because he needed the bishops phone number in order to locate a place to stay. He later called the bishop. The call to the P. residence was also to get the bishops number. Defendant did not go directly to the church or to the bishops house, as he could not recall the houses location. Defendant did write the letters that were introduced into evidence, and he knew there was a no contact order before he was placed on probation.

On April 12, 2006, the trial court found defendant in violation of probation on each of these counts. Defendant was sentenced to the midterm of six years, with a $1,200 restitution fine and a $1,200 parole revocation fine.

DISCUSSION

I

SUFFICENCY OF THE EVIDENCE AND ABUSE OF DISCRETION

The trial court found three grounds for revoking probation: failure to enroll in a program for sexual abuse counseling; failure to update registration as a sex offender; and defendants improper attempts to contact the victim. Defendant argues the trial courts findings are not supported by substantial evidence. He further argues the violations were insignificant and did not warrant a probation violation finding.

At any time during the probationary period, the court may revoke probation when it has reason to believe the defendant has violated any of the terms and conditions of probation. ( 1203.2, subd. (a); People v. Johnson (1993) 20 Cal.App.4th 106, 110.) An act occurring prior to the grant of probation may constitute a ground for a probation revocation. (People v. Pinon (1973) 35 Cal.App.3d 120, 124 [defendants guilty plea to a crime committed before defendant was placed on probation was properly used to revoke probation].) The role of the trial court at a probation revocation hearing is not to determine whether the probationer is guilty or innocent of a crime but whether he can be safely allowed to remain in society. (People v. Monette (1994) 25 Cal.App.4th 1572, 1575.) Revocation of probation is left to the sound discretion of the trial court. (In re Coughlin (1976) 16 Cal.3d 52, 56.) The burden of proof in the trial court at a probation violation hearing is preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-446.)

Failure to Enroll in Counseling

Defendant argues the evidence that he failed to enroll in counseling was equivocal at best. To the contrary, there was substantial evidence based upon DPO Reeses testimony that defendant had been ordered to enroll in the counseling and had failed to do so. According to DPO Reese, the director CSAP had no record of defendant. Defendants testimony bolstered the trial courts finding of noncompliance. Defendants attempt to explain his failure to enroll and attend counseling was weak; he claimed to have attended one session, but offered no documentary proof.

This violation of probation was not trivial. The trial court took a chance in granting probation in this child molestation case, particularly given the concerns about a lack of remorse and the danger of reoffending we discuss later in this opinion. The trial court was entitled to expect full and complete compliance with probation in an attempt to rehabilitate defendant. Probation violation based upon this evidence was not an abuse of discretion.

Failure to Register as a Sex Offender

Pointing to DPO Reeses testimony that defendant did not fail to register as a sex offender, defendant argues there was no evidence of a violation. The Attorney General concedes the merit of this contention. We agreethe evidence does not establish that defendant failed to register in a timely fashion when he moved from Lancaster to Los Angeles, since he was arrested before the time to register at a new address expired.

Violation of the No Contact Order

Before probation was granted, the trial court ordered defendant to stay at least one hundred yards away from the victim and not to contact him. When probation was granted, defendant was ordered to have no direct or indirect contact with the victim. Probation was revoked, in part, based upon defendants violation of the prohibition against direct or indirect contact with the victim.

Defendant argues that the correspondence he sent to the R. home was mailed before the grant of probation. Although there were orders in effect barring direct or indirect contacts with the victim, defendant contends that this correspondence could not serve as the basis for a violation of probation because probation had not been granted at the time the correspondence was sent.

As defendant recognizes, his telephone call to the P. residence after being released from custody, along with his appearance at the R. residence, both occurred after probation was granted. These acts alone provided the trial court with reason to believe defendant was in violation of probation.

Moreover, the trial court was entirely justified in considering defendants conduct in writing the letters while in custody before probation was granted. (People v. Pinon, supra, 35 Cal.App.3d at p. 124.) Defendants letters indicated a disturbing ongoing interest in the victim. Combined with defendants contact with both the P. and R. families immediately upon release from custody, the trial court justifiably found defendant in violation of probation. Public policy demands that a court have the power to terminate probation when, in the exercise of sound judgment, it becomes apparent that a defendants probation jeopardizes the safety of other citizens. (Ibid.) Defendants conduct demonstrates that this is such a case.

II

DECISION NOT TO REINSTATE PROBATION AND

IMPOSITION OF THE MIDTERM OF SIX YEARS IN PRISON

Defendant next argues any violation of the terms of his probation were so minor and so early in the probation term that the trial court abused its discretion in not reinstating probation. This contention does not require extended discussion.

Defendant twice molested the victim. The initial decision to grant probation was not clear cutthe diagnostic study prepared by the Department of Corrections pursuant to section 1203.03 was not unanimous in recommending probation. The correctional counselor who interviewed defendant concluded that defendant molested the victim on consecutive nights, indicating predatory behavior. Defendant appeared to the counselor to be totally without remorse in view of such a damaging offense. Defendants correspondence from custody reflected a disturbing interest in the victim and his family. Defendant did not complete a program for sex abuse counseling and violated the stay away order immediately upon release from custody. A state prison sentence was not an abuse of discretion.

The imposition of the midterm of six years was not an abuse of discretion. The trial court has discretion in fixing the term of punishment. ( 1170, subd. (b); People v.Evans (1983) 141 Cal.App.3d 1019, 1022.) Where a statute provides for three sentencing choices, the trial court shall sentence the defendant to the midterm, unless it finds circumstances in aggravation or mitigation of punishment. ( 1170, subd. (b); Cal. Rules of Court, rule 4.420(a).) A trial court is not required to indicate its reasons for rejecting a mitigating factor. [Citation.] It is also the rule that, unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances, enumerated in the sentencing rules. [Citation.] (People v. White (1981) 117 Cal.App.3d 270, 280.)

According to the probation report, defendant was placed in the victims family home by the bishop of the Latter Day Saints church. Defendant shared a bedroom with the victim. He fondled the victims penis on two consecutive nights. Considering that the victim was particularly vulnerable (he was molested while sleeping) and defendant did not show remorse in the eyes of one of the Department of Corrections counselors, there is nothing that mandated imposition of the low term. The investigating officer viewed stated that defendant exhibits classic predatory behavior. He viewed defendant as an extreme risk for reoffending. Defendant had no prior criminal record.

The probation report identifies two factors in aggravation of punishmentthe victim was particularly vulnerable and the manner in which the crime was carried out indicates planning, sophistication, or professionalism. Defendants lack of a prior criminal record is listed as the only circumstance in mitigation of punishment.

The trial court, after expressing its displeasure with the quality of the diagnostic study prepared for the initial sentencing hearing, imposed the midterm of six years. The term was neither arbitrary nor capricious. Defendant twice molested a vulnerable youngster, under circumstances consistent with predatory behavior. One participant in the diagnostic study found defendant to be without remorse. The investigating officer viewed defendant as being likely to reoffend. These factors amply justified the midterm sentence imposed.

III

COMPETENCE OF DEFENSE COUNSEL

Fearing that he will be deemed to have forfeited any issues pertaining to the probation revocation and sentence imposed due to trial counsels failure to object in the trial court, defendant argues he was denied constitutionally adequate assistance of counsel. Because we uphold the revocation of probation and state prison sentence on the merits, without regard to issues of waiver or forfeiture, we need not address the competency of counsel argument.

IV

THE RESTITUTION AND PAROLE REVOCATION FINES

At the time probation was initially granted, the trial court imposed a restitution fine under section 1202.4, subdivision (b), in the amount of $200. When probation was revoked and defendant was sentenced to state prison, the trial court increased the restitution fine to $1,200 and imposed a $1,200 parole revocation fine pursuant to section 1202.45.

Defendant argues the $1,200 restitution fine imposed following probation revocation must be reduced to $200, because only a $200 restitution fine was imposed at the time probation was granted. Defendant is correctthe restitution fine cannot be increased when probation is revoked and a state prison sentence is imposed. (People v. Arata (2004) 118 Cal.App.4th 195, 202; People v. Chambers (1998) 65 Cal.App.4th 819, 823.) Because the parole revocation fine pursuant to section 1202.45 is fixed as the same amount as the restitution fine pursuant to section 1202.4, subdivision (b), the parole revocation fine also must be reduced to $200.

DISPOSITION

The restitution fine imposed pursuant to section 1202.4, subdivision (b), is reduced to $200. The parole revocation fine imposed pursuant to section 1202.45 is reduced to $200. The trial court is to insure that a corrected abstract of judgment is delivered in a timely fashion to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P.J.

MOSK, J.

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^[1] All statutory references in this opinion are to the Penal Code.