P. v. Root

Filed 8/18/06 P. v. Root CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed.

A jury convicted Bruce Root of one count of committing lewd acts on a child (Pen. Code, § 288, subd. (a)).^[1] After the court declared a mistrial on 10 remaining counts, the prosecution agreed to dismiss them, and Root waived his right to challenge the conviction on the single count. The trial court denied Root's request for probation and sentenced Root to three years in prison. Root appeals the sentence, contending that the trial court erred in considering the dismissed counts when deciding to deny probation. We conclude that Root's appeal is without merit, and accordingly, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Kitty I. was four years old when Kitty's grandmother started living with Root. Kitty would often stay with her grandmother and Root on weekends. When Kitty was 13 years old, she disclosed to a relative that Root had molested her when she was between 10 and 12 years old. Kitty alleged that on several occasions Root touched her breasts and genital area, both over and under her clothes.

In a videotaped interview with police during which a polygraph examination was administered, Root admitted to touching Kitty's breasts over her clothing approximately four or five times when Kitty placed his hand there while they were watching television and to leaving his hand on her breasts for "a couple [of] minutes." He denied any other sexual contact. Root was tried on 11 counts of committing a lewd act on a child in violation of section 288, subdivision (a). Kitty testified at trial, specifically describing seven encounters with Root, all of which included touching of her breasts and some of which also included touching of her genital area, either under or over her clothes. According to Kitty's testimony, the last incident occurred close to Thanksgiving in 2002 when Root sat next to her on a bed, touched her breasts over her clothes for approximately two minutes, squeezed her buttocks and attempted to touch her genital area.

The evidence at trial also included a tape of Root's interview with the police, along with a transcript. Pursuant to Evidence Code section 351.1, the tape was redacted to remove indications that a polygraph examination was being conducted during the interview.^[2]

After two days of deliberations, the jury reached a verdict on only one of the 11 counts: a verdict of guilt on count 10, which alleged that Root touched Kitty's breasts on and between November 1, 2002, and November 30, 2002.^[3] After the jury returned the verdict on count 10, the trial court instructed the jury to return to court the next day to continue deliberating on the remaining counts.

Before the jury resumed its deliberations, the trial court discovered that one page of the transcript of Root's interview with police contained information indicating to the jury that the interview was a polygraph examination. Following this discovery and its disclosure to counsel, Root and the prosecution entered into negotiations on the remaining counts. They agreed that if the trial court were to grant a motion for a mistrial due to the jury's knowledge of the polygraph examination, Root would waive his right to challenge the verdict on count 10 and the prosecution would dismiss the remaining counts.

Implementing this agreement, the trial court (1) granted Root's motion for a mistrial based on the fact that the jury erroneously received evidence of the polygraph examination; (2) accepted Root's waiver of his right to appeal, collaterally attack, or file a motion for a new trial regarding the verdict on count 10; and (3) granted the prosecution's motion to dismiss the remaining counts. In accepting Root's waiver, the trial court explained, "You are obviously giving up some rights, sir. But in exchange for that, the People are dismissing ten remaining counts against you. So you will not be subjected to any possible punishment on those ten remaining counts."

At sentencing, Root argued that he should receive probation and that the trial court should not take into account any of the conduct alleged in the dismissed counts in deciding whether to grant probation. He cited the principle, established in People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey), that a court may not consider the facts and circumstances of dismissed counts when imposing sentence following a plea agreement.

To inform its sentencing determination, the trial court considered, among other things, a psychological evaluation of Root and statements that Root made to his probation officer, as reflected in the probation officer's report, about the nature of the offense.^[4] Root told the probation officer that "he did allow [Kitty] to place his hands on her breasts on more than one occasion," that "Kitty had placed his hands on her approximately three times over a three[‑] to four[‑]month period," and that on the occasion in November 2002, "[h]e allowed his hands to remain there for over one minute."

After weighing the factors prescribed by the sentencing rules to determine whether to grant probation, the trial court denied probation and sentenced Root to three years in prison. The trial court cited case law holding that Harvey does not apply when a court is considering whether to grant probation for someone convicted of lewd acts on a child under section 288. (See People v. Lamb (1999) 76 Cal.App.4th 664 (Lamb).) The court stated that "[w]ith that in mind, I do believe it is appropriate for me to consider the totality of [Root]'s behavior, which at a minimum, includes repeated acts of touching the victim, not just one. . . . Even by [Root]'s own admission, in the probation report, . . . it was at a minimum three different times." "I will indicate for the record that in sentencing the defendant, I am not considering any of the allegations of vaginal touching. There was no jury finding on that. There were no admissions by the defendant, and there was no real discussion of it in any psychiatric reports. I am sentencing for the one count, but I am putting this in the context of the fact that this was something that happened over a period of time, definitely on more than one occasion. So that's the issue with respect to Harvey."

Root appeals his sentence, arguing that the trial court erred by considering dismissed counts in deciding whether to deny probation.

II

DISCUSSION

The sole issue for us to resolve is whether, as Root argues, the trial court erroneously relied on dismissed counts in deciding whether to grant probation. We reject this argument on two separate grounds: (1) the trial court did not rely on dismissed counts in sentencing Root, and (2) even if the trial court had relied on dismissed counts, established case law permitted it to do so.

A

The Trial Court Did Not Rely on Dismissed Counts

We first reject Root's argument because the record does not reflect that the trial court relied on dismissed counts in deciding whether to grant probation.

The trial court made clear that it was not considering any allegations of vaginal touching, as "[t]here was no jury finding on that[,] no admissions by [Root], and . . . no real discussion of it in any psychiatric reports." With respect to the allegations of breast touching, the record shows that the trial court did not rely on the dismissed counts, but instead relied on admissions that Root made to the probation officer that he touched Kitty's breasts on several occasions. The record also shows that the trial court did not rely on the dismissed counts when it weighed the factors contained in the sentencing rules.

Accordingly, we reject Root's argument because its factual premise is flawed; the trial court did not rely on the dismissed counts in deciding to deny probation.

B

A Court May Rely on Dismissed Counts in Deciding Whether to Grant Probation to a

Defendant Convicted Under Section 288

Even if the trial court had relied on the dismissed counts to deny probation, it was permitted to do so. Although Harvey generally establishes that a court may not consider the facts and circumstances of a dismissed count when imposing sentence following a plea agreement (Harvey, supra, 25 Cal.3d at p. 758), courts have held that Harvey does not apply when a defendant is sentenced for committing lewd and lascivious acts upon a child in violation of section 288. (Lamb, supra, 76 Cal.App.4th at p. 672; People v. Bustamante (1992) 7 Cal.App.4th 722, 725-726; People v. Franco (1986) 181 Cal.App.3d 342, 350 (Franco).) This exception exists because section 288.1 requires that before the court suspends a sentence for a section 288 conviction, it must obtain a report on the defendant's mental condition.^[5] Thus, courts have concluded that "neither the psychiatrist nor the court should be limited to facts surrounding the admitted offense but must consider the totality of a defendant's behavior and course of conduct of which the particular offense(s) logically is a part." (Franco, at p. 350, italics added.) Accordingly, "defendants who plead guilty to violating section 288 . . . can have no reasonable expectation regarding dismissed charges in light of section 288.1's requirement of a report on their current mental condition as it relates to suitability for probation." (Lamb, at p. 672.)

Root argues that Lamb, Bustamante and Franco are distinguishable because they concerned defendants who, unlike him, entered guilty pleas. However, this distinction makes no difference to the analysis. As in Lamb, Bustamante and Franco, Root was being sentenced for a conviction under section 288. In every conviction under section 288, the court is required by section 288.1 to consider a psychological report before granting probation. As in Lamb, Bustamante and Franco, the requirement of the psychological report broadened the scope of behavior that the court was permitted to consider in deciding whether to grant probation.^[6]

Root also argues that notwithstanding the case law, the court was barred from considering the dismissed counts in deciding whether to grant probation because "the court specifically informed [Root] at the time he agreed to forego his right to a new trial on all counts that he would 'not be subjected to any possible punishment on those ten remaining counts.' " We reject this argument because a trial court does not punish a defendant if it considers dismissed counts when deciding whether to grant probation. Probation is rehabilitative in nature, and probation ineligibility is not punishment, but rather a rejection of clemency by the court. (People v. Mancebo (2002) 27 Cal.4th 735, 754; People v. Howard (1997) 16 Cal.4th 1081, 1092.) By seeking clemency from the court through probation, Root put his past conduct at issue, and as case law establishes, Root was legally on notice, by virtue of section 288.1, that the totality of his conduct would be considered by the trial court when it decided whether to grant probation. (See Lamb, supra, 76 Cal.App.4th at p. 672 [in light of section 288.1, defendants who plead guilty to violating section 288 "can have no reasonable expectation" that the court will disregard dismissed charges in making a decision regarding probation].)

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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

^[2] Evidence Code section 351.1, subdivision (a) states: "Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results."

^[3] Count 10 was apparently premised on the last of the incidents that Kitty described, which occurred around Thanksgiving in 2002.

^[4] The appellate record does not contain the psychological evaluation. As described in the probation officer's report, the psychological evaluation concluded that Root is not a pedophile interested in prepubescent girls, but that Root has " 'less than optimal ability . . . to avoid engaging in impulsive, pleasurable activities,' " and is not motivated to participate in sexual offender treatment.

^[5] Section 288.1 provides: "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."

^[6] Root also argues that "since the [psychological report] concluded that [Root] was amenable to probation, the trial court could not properly cite the requirement of the report as justification for relying on the dismissed counts." We reject this argument because nothing in Lamb, Bustamante or Franco limits the trial court to considering only the conclusion of the psychological report in determining whether to grant probation. Instead, those cases establish that the court may consider "the totality of a defendant's behavior and course of conduct of which the particular offense(s) logically is a part." (Franco, supra, 181 Cal.App.3d at p. 350.) Further we note that the appellate record does not contain a copy of the psychological report, and thus, even if the argument had legal merit, we would be unable to assess whether it is supported by the facts. (Cf. People v. Siegenthaler (1972) 7 Cal.3d 465, 469 [defendant was precluded from seeking appellate review of a motion when the appellate record did not contain the necessary transcript].)