P. v. Roberts
Filed 3/15/06 P. v. Roberts 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
(Yuba)
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| THE PEOPLE, Plaintiff and Respondent, v. MARCUS LEE ROBERTS, Defendant and Appellant. | C049129
(Super. Ct. No. CRF04475)
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After defendant Marcus Lee Roberts pled guilty to two counts of committing a lewd and lascivious act against two children, the court appointed a doctor to prepare a Penal Code section 288.1 report and referred the matter for probation evaluation. Following the doctor's testimony, the trial court found the probation report not favorable and sentenced defendant to 10 years. Defendant appeals, contending the trial court abused its discretion in denying his request for probation, and defense counsel performed ineffectively in failing to object to the court's imposition of a restitution fine exceeding the agreed-upon amount. After careful consideration we find the probation hearing failed to afford defendant due process. In addition, we shall direct the correction of the abstract of judgment to reflect a restitution fine of $1,600; in all other respects, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with two counts of committing a lewd and lascivious act against N.V. and M.R., both children under the age of 14 years. (Pen. Code, § 288, subd. (a).)[1] Defendant served as a church mentor to the victims. At the time of the offenses, defendant was 21, N.V. was 12, and M.R. was 13.
In July 2004, when defendant had been mentoring N.V. for about three years, N.V. spent the night at defendant's home. Defendant woke up N.V., turned him over, and pushed his penis against N.V.'s rear end. Both were fully clothed. Defendant got up, went into the bathroom, then returned to the living room and fell asleep.
During a second incident that same month, defendant again awakened N.V., rolled him over on his stomach, got on top of him, and pushed his pelvis into N.V.'s buttocks. Both were clothed, and defendant did not touch N.V.'s genitals. N.V. stated defendant had done this on one other previous occasion, approximately two years earlier.
M.R. is N.V.'s brother. M.R. spent the night at defendant's house on numerous occasions. Twice in July 2004 defendant had M.R. sit on top of his private parts and then lie down on him. Defendant then lifted his â€
