Filed 11/13/18 P. v. Walker CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
TIMMOTHY KENNETH JOHN WALKER,
Defendant and Appellant.
|
F076232
(Super. Ct. No. F16905680)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Timmothy Kenneth John Walker pled no contest to one count of sexual battery by restraint (Pen. Code, § 243.4, subd. (a))[1] and was sentenced to a three-year prison term. On appeal, Walker contends the trial court abused its discretion when it: (1) denied him a grant of probation; and (2) failed to order a report pursuant to section 288.1.[2] We affirm.
FACTS
On February 14, 2014, a Fresno County Sheriff’s Deputy contacted CV1, who was then 11 years old. CV1 told the deputy that in August 2013, she and a friend attended a party at Walker’s house in Squaw Valley.[3] Sometime during the evening CV1, Walker, and several other people walked to a house that allegedly was haunted. As CV1 walked next to Walker, he wrapped his arm around her back and placed his hand on the right side of her abdomen before slipping it under CV1’s shirt and touching her bare skin. CV1 pulled her shirt down and attempted to remove Walker’s hand, but he pulled the shirt back up and continued to touch her. As they continued walking, Walker put his hand on her vagina, under her pants and underwear, and left it there for approximately a minute before removing it. Although CV1 reported the touching to three other people that evening, she did not immediately report the matter to law enforcement (count 1).
On December 13, 2015, a Fresno County Sheriff’s Deputy contacted CV2 and CV3, who were both then 13 years old. CV2 reported that in August 2012, she was invited by Walker’s female cousin to a party at the house where the cousin lived. After consuming several alcoholic drinks, CV2 went with Walker’s cousin to a clubhouse on the property. The following day when CV2 woke up, she did not remember much of what happened after she entered the clubhouse. She also received a message from a sender who identified himself as Walker asking if she remembered the previous night. After CV2 replied that she did not, Walker sent a message stating that he “fingered” her and asking if she liked it (count 2).
CV3 told the deputy that in the spring of 2012, she attended a party at Walker’s house and wound up sleeping on a trampoline with other people, including Walker. During the night, she awakened to find her pants and underwear pulled down to her knees and Walker placing two fingers in her vagina (count 3). CV3 immediately pulled up her clothes and went inside the house where she eventually fell asleep on a couch.
Two to three months later, CV3 attended another party at Walker’s residence. Although she did not plan on spending the night because of the prior incident, she eventually fell asleep on a couch in the living room. During the night, she again awakened to find her pants and underwear pulled down to her knees and two of Walker’s fingers in her vagina (count 4). Walker asked CV3 if she wanted to “go farther,” and she replied that she did not.
On October 5, 2016, Walker was arrested.
On October 7, 2016, the Fresno County District Attorney filed a first amended complaint that charged Walker with four counts of lewd and lascivious conduct with a child under the age of 14 (counts 1 through 4).
On May 19, 2017, after the prosecutor amended count 2 to charge Walker with sexual battery by restraint (§ 243.4, subd. (a)), Walker entered his no contest plea to that count in exchange for the dismissal of the remaining counts. Walker’s plea bargain also provided for a lid of three years and that if he received a favorable section 288.1 report and was granted probation, the prosecutor would not oppose terms of probation that allowed him to live with his wife and child. However, during the pre-plea discussion, the court made it clear that it might not order a section 288.1 report.
On August 23, 2017, at the beginning of Walker’s sentencing hearing, the court noted that it had considered the probation report and approximately 45 letters of support for Walker, a letter from the victim, one from the victim’s father, the defendant’s statement in mitigation, and the original probation report. The court also considered a request by Walker for a section 288.1 report The court then announced that its tentative decision was to not order a section 288.1 report and sentence Walker to prison for the middle term of three years.
After hearing argument, the court recounted the facts of the incidents underlying each count and then stated:
“He is statutorily eligible for probation. I know the Probation Department report indicates that he’s not eligible absent a 288.1 report but I don’t agree with that statement of the law. I think he’s eligible for probation without a 288.1 report but I’m making a finding—number 1, I’m not referring it for a 288.1 report. I’m making a finding that the defendant constitutes a danger to the community because of his predatory conduct with multiple victims. Probation is denied.
“In mitigation, the court does note there was an early stage admission. He has no criminal history. There were many, many letters that the court read by many members of the community supporting the defendant. It does appear to the court that the defendant is almost in some aspects two different people but I read those 45 letters of support. The District Attorney has also agreed to a maximum of a middle term. I cite that as a mitigating factor as well.
“In aggravation, there were dismissed counts that were the subject of a Harvey[[4]] waiver which the court can consider[.] … I’m not being critical of either party for the settlement of this case, I think it’s a fair settlement but there were multiple victims here.
“In Count Two, the victim was vulnerable, not only because of her age, but she was also intoxicated and he pursued that victim the next day after the incident occurred by calling her and having a discussion with her, telling her that he had fingered her and asked her if she liked it.
“The court makes a finding that mitigating and aggravating circumstances are roughly balanced and it’s the judgment and sentence of the court on Count Two that the defendant be committed to the California Department of Corrections and Rehabilitation for that middle term of three years.”[5]
DISCUSSION
Walker contends he was an excellent candidate for probation because he did not have a prior record, admitted his offenses at an early stage of the proceeding, expressed remorse, and he did not commit a law violation and led a productive life between his commission of the underlying offenses and his sentencing. He further contends the court did not conduct an analysis under California Rules of Court, rule 4.414,[6] which enumerates the “[c]riteria affecting the decision to grant or deny probation[,]” that it conducted a cursory analysis of the factors in aggravation and mitigation, did not properly weigh the circumstances it did consider, and that if it had properly analyzed the rule 4.414 criteria, the court should have determine he was suitable for probation.[7] Thus, according to Walker, the court abused its discretion when it denied him probation. We disagree.
The trial court has broad discretion in matters involving probation and sentencing, and the party challenging a decision to grant or deny probation bears the burden of establishing the court abused its discretion. (People v. Catalan (2014) 228 Cal.App.4th 173, 179.) Furthermore, “a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release. [Citation.] Stated differently, ‘[p]robation is not a right, but a privilege.’ ” (People v. Moran (2016) 1 Cal.5th 398, 402.)
“ ‘In reviewing [a trial court’s determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order … is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’ ” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311 (Weaver), disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 934-935.)
Rule 4.414 provides guidance and factors in determining when probation is appropriate. Factors to consider fall into two categories—those relating to the defendant’s crime and those relating to the defendant. (Rule 4.414.) A trial court may also consider factors not listed in the rules if the factors are reasonably related to the court’s decision. (Rule 4.408(a).) A judge is assumed to have considered all relevant factors, unless the record affirmatively reflects otherwise. (Rule 4.409.)
A trial court is required to state its reasons for denying probation and imposing a prison sentence. (Rules 4.406(b)(2), 4.408(a).) Generally, a court satisfies this obligation when it explains why it favored imprisonment over probation. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157-1158.) On appeal, we will find abuse of discretion only where there is not sufficient or substantial evidence to support the court’s application of the factors. (Weaver, supra, 149 Cal.App.4th at p. 1313.) The factors need only be established by a preponderance of the evidence. (People v. Leung (1992) 5 Cal.App.4th 482, 506.)
The trial court here considered the probation report, defense counsel’s statement in mitigation, and over 45 letters, including ones from appellant, CV3, and CV3’s father. The court found appellant was a danger to society because of his predatory conduct with multiple victims and cited that as the reason for denying appellant probation. The court’s finding of dangerousness is amply supported by the record, which established that Walker sexually assaulted three victims under the age of 14 years, including one victim twice and one victim who was only eleven years old.
Walker, in effect, contends that the court did not consider certain mitigating factors and that it did not give appropriate mitigating weight to others. However, a defendant who fails to object forfeits “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353.) Defense counsel did not object to the court’s decision to deny Walker probation and sentence him to a three-year prison term. Thus, Walker forfeited his claim that the trial court did not consider certain circumstances and/or did not properly weigh others.
However, even if Walker’s contentions were properly before us, we would reject them. “Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms.” (People v. Roe (1983) 148 Cal.App.3d 112, 119.) Further, the court need not explain its reasons for minimizing or disregarding mitigating factors (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583) and only one circumstance is necessary to justify the denial of probation (Cf. People v. Kelley (1997) 52 Cal.App.4th 568, 581). Therefore, since substantial evidence supports the court’s finding that Walker posed a danger to the community because of his predatory conduct, the trial court did not abuse its discretion when it denied him probation.
The Failure to Order a Report Pursuant to Section 288.1
Walker contends “there is no indication [in the record] that [the court] considered whether appellant represented a danger to society.” He further appears to contend that because several circumstances indicated he was a good candidate for probation, the court abused its discretion by its failure to order a section 288.1 report because it would have assisted the court in determining whether to grant him probation. Walker is wrong.
Walker’s assertion that the court did not determine whether he was a danger to society ignores the court’s finding that he “constituted a danger to the community because of his predatory conduct with multiple victims.” Further, the court did not need a section 288.1 report for it to conclude from the circumstances of Walker’s offenses that he posed a danger to the community because of this conduct.
“[In any case,] [i]t is clear from the language of section 288.1 that a report is not mandated in every lewd or lascivious act case. Only if the trial court is inclined to grant probation must a report be ordered. The language cannot be any plainer: ‘Any person convicted of committing any lewd or lascivious act … upon or with the body … of a child under the age of 14 years shall not have his sentence suspended until the court obtains a report from a reputable psychiatrist, or from a reputable psychologist .…’ ” (People v. Thompson (1989) 214 Cal.App.3d 1547, 1549.) Thus, the court did not abuse its discretion by its failure to order a report pursuant to section 288.1 because it did not intend to grant probation to Walker.
DISPOSITION
The judgment is affirmed.
* Before Detjen, Acting P.J., Franson, J. and DeSantos, J.
[1] All further statutory references are to the Penal Code.
[2] 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 … as to the mental condition of that person.”
[3] Walker was then 27 years old.
[5] Defense counsel did not raise any objections to the sentence imposed.
[6] All further references to rules are to the California Rules of Court.
[7] Walker contends the court did not consider or give sufficient weight to the following circumstances which, pursuant to rule 4.414, the court may consider in deciding whether to grant probation: his offense was less serious than other instances of the same crime (rule 4.414(a)(1)); he did not use a weapon in its commission (rule 4.414(1)(2)); the victim did not incur any monetary losses (rule 4.414(a)(5)); he was under the influence of alcohol when he committed the underlying offense (rule 4.414(a)(7)); his offense did not involve sophistication (4.414(a)(8)); he did not have a prior record (rule 4.414(b)(1); he was willing to comply with the terms of probation (rule 4.414(b)(3)); he had the ability to comply with reasonable terms of probation (rule 4.41.(b)(4)); the effect of imprisonment on him would be significant (rule 4.414.(b)(5)); the adverse collateral consequences on his life would be significant (rule 4.414(b)(6) ; and he expressed remorse (rule 4.414(b)(7)).
