P. v. Shaday

Filed 6/22/06 P. v. Shaday CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed.

Yova Kana Shaday appeals a judgment entered after he pleaded guilty to one count of committing a lewd act on a child under the age of 14. (Pen. Code, § 288, subd. (a).)^[1] The court denied probation and sentenced him to prison for the low term of three years. Shaday contends the court erred by denying his request for probation. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On October 15, 2004, Shaday was in the lounge of Frog's Fitness Club. Five-year-old Anna B. was also in the lounge area of the club, waiting for her babysitter. Shaday told Anna to "come over to him," but she did not respond. He then walked over to Anna, put his hand down her shirt and touched the skin of her chest. Shaday asked Anna to "come with him so they could talk" but she would not go with him. Shaday asked if she was going to tell anyone about the incident; Anna replied she would not tell anyone and wrapped her arms tightly around herself. Anna later told officers she did this so that Shaday would not "get her." Anna left the lounge area, went to her babysitter and reported the incident. Police arrested Shaday two days later.

The People charged Shaday with one count of committing a lewd act on a child, and alleged he was a stranger to the child victim as defined in section 1203.066, subdivision (a)(3). Shaday pleaded guilty to committing a lewd act on a child in exchange for dismissal of the allegation and a mid-term lid of six years in prison. At the time of the plea, the court informed Shaday it had the authority to grant probation or sentence him to prison for three years. At the first sentencing hearing, the court referred Shaday to prison for a 90-day diagnostic evaluation under section 1203.03. After considering the results of the evaluation, the court denied probation and sentenced Shaday to prison for the low term of three years.

DISCUSSION

Shaday contends the court erred by denying probation and imposing a prison sentence. He asserts the court based its decision on improper factors unrelated to the offense, including his personal idiosyncrasies.

A trial court has broad discretion to grant or deny probation and its decision will be reversed only on a showing its discretion was exercised in an arbitrary and capricious manner. (People v. Edwards (1976) 18 Cal.3d 796, 807.) All criteria relevant to a sentencing decision are deemed to have been considered by the trial court unless the record affirmatively shows otherwise. (Cal. Rules of Court, rule 4.409.)^[3]

Facts Relating to the Nature of the Crime

Shaday contends the nature of the current offense warranted granting probation. In deciding whether to grant or deny probation, the trial court considers facts relating to the offense itself. (Rule 4.414(a); People v. Kelley (1984) 158 Cal.App.3d 1085, 1102.) The court has broad 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.) Although several factors might support a grant of probation, it is not an abuse of discretion for the trial court to find these factors are outweighed by other facts of the offense. (See People v. Kelley, at pp. 1102-1103.)

Shaday refers to several factors that weigh in favor of granting probation: (1) the crime was not as serious as other instances of the same crime (rule 4.414(a)(1)); (2) he was unarmed (rule 4.414(a)(2)); (3) no physical injuries were inflicted (rule 4.414(a)(4)); and (4) the crime did not involve criminal sophistication or professionalism. (Rule 4.414(a)(8).)

However, other factors weighed in favor of denying probation, including the vulnerability of the victim (rule 4.414(a)(3)) and the lack of unusual circumstances or provocation. (Rule 4.414(a)(7).) Anna was a five-year-old girl alone in a waiting room. Despite the public setting, Anna's young age and lack of supervision left her unprotected and susceptible to Shaday's criminal actions. (See People v. Smith (1979) 94 Cal.App.3d 433, 436.) Anna related her vulnerability and fear of Shaday in her statement to the police officers that she "didn't want him to get [her]." Further, Shaday's crime did not result from any unusual circumstances or great provocation unlikely to recur. The diagnostic evaluation referred to the crime as "one of convenience, in that the female victim just happened to be available and unsupervised." The court did not abuse its discretion by finding factors relating to the nature of the crime in favor of granting probation were outweighed by the factors in favor of denying probation.

Facts Relating to the Defendant

Shaday contends the court erroneously denied probation because it relied on his personal characteristics rather than the crime itself. However, when determining whether to grant or deny probation, the court must consider facts relating to the defendant as well as those relating to the nature of the crime. (Rule 4.414(b); People v. Kelley, supra, 158 Cal.App.3d at p. 1102.) These facts include the defendant's prior criminal record and performance on probation, willingness and ability to comply with terms of probation, whether the defendant is remorseful, and the likelihood of danger to others if the defendant is not imprisoned. (Rule 4.414(b)(1)-(8).) Additionally, the trial court may consider the defendant's "appreciation of and attitude toward the offense" as well as behavior and demeanor at trial. (People v. Fowler (1980) 109 Cal.App.3d 557, 565-66, overruled on another ground in People v. Humphrey (1982) 138 Cal.App.3d 881, 882.)

Here, the court properly considered several factors relating to Shaday's personal characteristics. Shaday has a prior record that shows a pattern of regular criminal conduct, even though most of his prior convictions are misdemeanors and municipal code violations. Although Shaday's background suggests he might have the ability to comply with probation terms,^[4] he did not show remorse for his crime or take responsibility for his actions. He further showed an unwillingness to comply with authority by declining to answer questions about his crime and giving conflicting responses to his interviewers. Both the probation report and diagnostic evaluation related Shaday's attitude and lack of appreciation of the offense, which suggested he was unsuitable for probation and a potential danger to others if not incarcerated. The court properly considered factors relating to Shaday's personal characteristics in denying probation.

Shaday also contends the court improperly relied on his mental health as reported by the probation officer and the diagnostic evaluation. However, a trial court may consider any criteria "reasonably related to the decision being made." (Rule 4.408.) "[I]n denying or granting probation in a section 288 case, one of the primary concerns is the defendant's mental condition." (People v. Franco (1986) 181 Cal.App.3d 342, 350.) Here, the trial court properly considered factors relevant to Shaday's mental health, behavior and conduct that might affect his suitability for probation. Moreover, because Shaday did not object to the propriety of factors included in the probation report and considered by the court at sentencing, he has waived the right to challenge them on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.)

Prior Arrest Data

Shaday contends the court improperly relied on his prior arrest for public lewdness in New York, referred to in the diagnostic evaluation. He asserts this is no more than raw arrest data and should not be considered in sentencing. However, a probation report may properly include information about a defendant's prior arrests and the court may consider this information, if it is not presented in a manner likely to mislead the court to believe there was a conviction for the offense. (People v. Phillips (1977) 76 Cal.App.3d 207, 213-215.) Here, nothing in the record shows the court mistakenly believed Shaday's arrest resulted in conviction. Further, the arrest was not used as a basis to deny probation.

Reasons Articulated by the Court in Denying Probation

The record does not support Shaday's contention that the court relied on improper factors in denying probation. Even if a probation report contains improper information, "the appellate court must assume that the trial court was not influenced by irrelevant matters." (In re Contreras (1975) 45 Cal.App.3d 549, 555.) Here, the court's primary reason for denying probation was Shaday's apparent inability and unwillingness to comply with the terms and conditions of probation.^[5] Significantly, the court made no reference to any of Shaday's personal idiosyncrasies or oddities in making its sentencing choice. The court noted the diagnostic evaluation recommended against probation. Even had the probation report and diagnostic evaluation discussed improper factors, we must presume the court was not influenced by them.

Moreover, the record supports the court's finding that Shaday would be unable or unwilling to comply with the terms of probation. He failed to acknowledge responsibility or wrongdoing. At sentencing, Shaday stated, "I never feel that I was a criminal or I was doing a crime to her or society or anything else. I would feel more guilty if I was stealing a candy bar." He also argued anyone in his position would have done the same thing. He told the evaluator, if "a [five-]year old came into the room with a low cut blouse and commented about the flower on her shirt, and someone saw her breasts, as in nature 'naturally' would touch her breasts. Anyone would." Shaday claimed he was the victim in this case and society owed him.

Shaday's attempts to blame others for his criminal actions further show the likelihood he would not comply with terms of probation. Shaday blamed Anna's babysitter for leaving her alone and argued Anna's parents told her what to say to the police to "make a civil assessment under the scenario of the perfect crime."^[6] He then accused the evaluator of making him look bad,^[7] and even blamed the victim herself, claiming "the lady came up to me" and "didn't object, pull away, or say anything." The record provides sufficient evidence of Shaday's failure to accept responsibility for his actions, which suggests an inability or unwillingness to comply with the terms of probation. The trial court did not exercise its discretion in an arbitrary or capricious manner in denying probation.

Waiver of Presumptive Ineligibility for Probation

The People argue for the first time on appeal that as a result of a prior conviction for a dangerous weapons offense (§ 12020, subd. (a)), Shaday is presumptively ineligible for probation absent a specific finding that the interests of justice would be served by granting probation. However, by not raising the issue of ineligibility for probation at the sentencing, the People have waived the right to raise the issue on appeal. (People v. Scott, supra, 9 Cal.4th at p. 353.) Shaday's prior conviction for a weapons offense was noted in the probation report and available to all parties, yet was never mentioned at sentencing. Throughout the plea proceedings and the sentencing hearings, all parties considered probation to be a viable sentencing option. In fact, as part of the plea bargain, the People specifically withdrew the no probation allegation of section 1203.066 to eliminate potential barriers to a grant of probation. Moreover, the People confirmed there was no mandatory imprisonment required for the offense, and the court recognized it had the authority to grant probation. As a result, the issue of ineligibility for probation has been waived.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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

^[2] Because Shaday pleaded guilty, the facts are taken from the probation report.

^[3] Rule references are to the California Rules of Court.

^[4] Shaday has a college degree, honorable discharge from the military, and prior satisfactory performance on probation.

^[5] The reporter's transcript contains an obvious typographical error when it states: "And I'll note that the court is denying probation based on the fact that there is an apparent ability or willingness to comply with the terms and conditions of probation." This clearly is meant as an apparent inability.

^[6] Shaday has no real assets.

^[7] During sentencing he argued that the evaluator's "trick shoulder and a nervous twitch in his left eye" made him unable to look the evaluator in the eye.