P. v. Kozak
Filed 7/10/09 P. v. Kozak CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOHN KOZAK, Defendant and Appellant. | A124290 (Del Norte County Super. Ct. No. CRF089631) |
Defendant Michael John Kozak pleaded guilty to committing a lewd act on a child under 14 (Pen. Code, 288, subd. (a)). The trial court sentenced him to the middle term of six years.
Defendants counsel has filed an opening brief that raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. We find no arguable issues and affirm.
I.
We take the facts from the probation report.
On November 7, 2008, the victim, an 11-year-old girl, was invited along with her four-year-old brother to spend the night at defendants home and play with his children, ages nine and four. Such an invitation was not uncommon. Defendant lived down the street from the victim, and the victim often accompanied her brother when the latter was invited to play at defendants house. Defendant was a special education assistant at a local middle school. He gave the victim informal art lessons after school.
On the day of the offense, the victim and defendant were in defendants garage, which was converted into an art studio. The victim was having trouble drawing a picture. Defendant asked her to sit on his lap so he could help. She did. Defendant tried to put his hands down her shirt, and warned her that the boys at school . . . will try to get in your pants. The victim pushed away from defendant and told him she did not like what he was doing. Defendant continued to try to touch her breasts. He rubbed his hands up and down both sides of her buttocks, and touched her between her thighs and in her vaginal area.
Defendant told the victim he was doing this because he wanted her to feel good about herself. The victim told him to stop. He did, saying it was just a test.
Later in the evening, defendant unzipped the victims jacket and again tried to touch her breasts. She pushed him away and zipped up her jacket.
At some point in the evening, defendant showed the victim a book of nude women engaged in masturbation. Defendant told the victim that the women were making themselves feel good, and that the victim should try it.
Defendant had a heavy odor of alcohol on his breath at the time of the offense.
The victim told police that defendant had done this to her two or three times before.
On November 11, 2008, defendant admitted to the investigating officer that he had been drinking alcohol heavily on the day of the offense. He admitted having the victim sit on his lap, and that he touched her sexually on the breast, buttocks, and vaginal area. He also admitted showing her an art book of nude women. He admitted a prior incident of sexual molestation.
Defendant expressed remorse. He also said he had been sexually abused at the age of five and was addicted to pornography.
The People charged defendant with two counts of lewd conduct with a child under 14. He pleaded guilty to one count, in an open plea arrangement with a maximum possible sentence of eight years.
An evaluation pursuant to Penal Code section 288.1 revealed that defendant was not a pedophile, but had an anti-social personality disorder. He was unstable and unpredictable.
The trial court denied probation. The court found that the offense was serious; that defendant showed sophistication and the offense was premeditated, involving the conscious use of pornographic material; that defendant took advantage of a position of trust to inflict great emotional pain; and that defendant would be dangerous to others if not incarcerated.
In determining the appropriate prison term, the trial court found as aggravating factors (1) that defendant took advantage of a position of trust and confidence, and (2) that defendant used pornographic material in the commission of the offense. The court found as mitigating factors (1) that defendant had no prior adult criminal history, and (2) that defendant had voluntarily acknowledged wrongdoing at an early stage of the proceedings.
The court found that the aggravating and mitigating factors roughly balance, and imposed the middle term of six years.
II.
We have reviewed the record and find no arguable issues. Defendant was represented by counsel at all pertinent portions of the proceedings. He was properly advised of his constitutional rights when he entered his guilty plea. There is no certificate of probable cause. The trial court did not abuse its discretion by imposing the middle term. The sentence is less than the maximum designated in the open plea agreement. There are no errors in the proceedings.
III.
The judgment is affirmed.
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Marchiano, P. J.
We concur:
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Margulies, J.
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Graham, J.*
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Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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