P. v. Bird

Filed 7/10/06 P. v. Bird CA4/1

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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, Charles Ervin, Judge. Affirmed.

Sean Scott Bird entered negotiated guilty pleas to three counts of lewd and lascivious conduct with a minor under the age of 14 years. (Pen. Code,^[1] § 288, subd. (a).) He admitted substantial sexual conduct with the victim on two of the counts. (§ 1203.066, subd. (a)(8)). The court sentenced him to prison for 10 years: the six-year middle term on one count with consecutive two-year terms on the other two counts

(one-third the middle term). Bird recognizes he was presumptively ineligible but contends the trial court erred in denying probation.

FACTS

In July 2004, Bird and his wife separated. After the separation, the couple's child and Bird's two stepchildren, including seven-year old N.T., stayed with Bird every other weekend. The victim claimed that for over two years, Bird engaged with her in oral copulation, penile/genital and anal contact and breast fondling. DISCUSSION

Bird was presumptively ineligible for probation because he engaged in substantial sexual conduct with a child less than 14 years of age leading to a conviction of committing a lewd and lascivious act with a child under the age of 14. Bird agues the trial court abused its discretion in denying probation because he fell within the exception to presumptive ineligibility for probation expressed in former section 1203.066, subdivision (c).^[2]

Former section 1203.066, subdivision (c), provided:

"(c) Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings:

"(1) The defendant is the victim's natural parent, adoptive parent, stepparent, relative, or is a member of the victim's household who has lived in the victim's household.

"(2) A grant of probation to the defendant is in the best interest of the child.

"(3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.

"(4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. While removed from the household, the court shall prohibit contact by the defendant with the victim, except the court may permit the supervised contact, upon the request of the director of the court ordered supervised treatment program, and with the agreement of the victim and the victim's parent or legal guardian, other than the defendant. As used in this paragraph, 'contact with the victim' includes all physical contact, being in the presence of the victim, communication by any means, any communication by a third party acting on behalf of the defendant, and any gifts.

"(5) There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so."

Bird contends that because all five of the provisions of former section 1203.066, subdivision (c), applied to him, the trial court abused its discretion in denying probation. Specifically, he argues that the trial court erred in finding that placing him on probation was not in the best interest of the child victim. He claims this finding was based on the probation department stating in the probation report before it received a supplemental letter from clinical social worker Larry Corrigan that placing Bird on probation would not be in the victim's best interest.

At the outset of the sentencing hearing the court noted that it had reviewed the probation report and, that day, reviewed the supplemental information provided by Corrigan. During argument, Bird's counsel discussed the supplemental report at length. In the letter, Corrigan stated he felt it would be in the victim's best interest for Bird to be placed on probation because the victim "stopped the therapy when she was not going to be able [to] have any contact with her father." After the People argued against placing Bird on probation, the court said:

"Well, I do concur with the People. This is about as serious as a child molest case that you can ever see in front of you. Given the allegations admitted to and substantial sexual contact, this situation is tantamount--while it may not be that clinical definition of pedophilia, it certainly, at least in my mind and the layman's--I'm sure a layman's mind, looks like a child's stalking, child predatory type of behavior, taking advantage of this child who is basically captive in the house, noting, of course, those statements that the People discussed earlier as to this victim almost believing that she is something other than just a child based on the way that he treats her.

"While perhaps the pathology findings don't confirm anal or vaginal penetration, based on what I'm reading in the report, my understanding of the facts of this case is his admissions as to those allegations and his plea to be appropriate, that there was an act of oral copulation and there were acts where he was involved with this child where he ejaculated, noting that this child is a seven-year-old or perhaps younger at the time, eight at this time.

"This is, as I've said, a very serious offense, and I can't even imagine what this child must be thinking after this event occurs, and then he puts her up in a bunk bed at one point in time to sleep in her wet clothing after being forced to go through this.

"I've looked at [section] 1203.066[, subdivision] (c) to see if I could even make the finding that he might be eligible for probation, and I

can't do so. There does not appear to be any discernable benefit to this victim if he's granted probation, and I do not make those findings. I do think this is a prison case and probation will not be offered. In fact, it will be denied." (II RT 26-28)

"Probation is an act of leniency, not a matter of right." (People v. Walmsley (1985) 168 Cal.App.3d 636, 638.) The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. (People v. Axtell (1981) 118 Cal.App.3d 246, 256.) Among the factors to be considered is whether the failure to incarcerate the defendant "would unduly depreciate the seriousness of the crime." (Id. at p. 255; see also, People v. Bolton (1979) 23 Cal.3d 208, 217.) A trial court has broad discretion to grant probation. (People v. Lafantasie (1986) 178 Cal.App.3d 758, 761.) The exercise of discretion must be neither arbitrary nor capricious, must be impartial, and must be guided and controlled by fixed legal principles. (People v. Warner (1978) 20 Cal.3d 678, 683.) Protection of the public, the nature of the offense, the interest of justice, reintegration of the offender into the community, and the defendant's needs shall be primary considerations. (§ 1202.7.) Absent a clear showing the decision is arbitrary or irrational, it is presumed the trial court acted to achieve legitimate sentencing objectives. (People v. Giminez (1975) 14 Cal.3d 68, 72.) A decision denying probation will be upheld absent a clear showing the trial court's determination is arbitrary or capricious. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 364-365.)

Bird argues this was an abuse of discretion because he fell within the exception expressed in former section 1203.066, subdivision (c). However, even if we assume Bird fell within the exception to mandatory imprisonment for child molesters described in section 1203.066, subdivision (a), merely because a defendant falls within the exception to mandatory imprisonment expressed in former section 1203.066, subdivision (c), does not make it an abuse of discretion to deny probation. (People v. Wutzke (2002) 28 Cal.4th 923, 932, fn. 7.) The trial court must first determine whether the defendant is eligible for probation and, if eligible, determine whether granting probation is appropriate. Here, over a two-year period Bird engaged in oral copulation, penile/genital and anal contact and breast fondling with his seven-year-old stepdaughter. Even if Bird is not clinically a pedophile and even if the victim would engage in counseling if Bird was placed on probation, the trial court was not arbitrary or capricious in finding that placing him on probation was not in the victim's best interest.^[3]

Citing People v. Jeffers (1987) 43 Cal.3d 984, Bird argues that denying him probation conflicted with the purpose of section 1203.066. In Jeffers, the trial court said it would grant probation but for the "legislative prohibition." It did not amplify this finding. (Id. p. 991.) The Supreme Court did not consider whether the trial court abused its discretion in denying probation. Rather, the court was concerned solely with statutory interpretation of the meaning of "[is] a member of the victim's household who had lived in the household." (Id. at p. 987.) Finding that the trial court had not determined whether

the defendant was a member of the victim's household at the time of the offense, the Supreme Court remanded so the trial court could enter a factual finding on this question. Here, unlike in Jeffers, the trial court clearly found that "[t]here does not appear to be any discernable benefit to this victim if [Bird is] granted probation . . . . I do think this is a prison case and probation will not be offered." Unlike in Jeffers, the trial court here correctly interpreted and applied the applicable law.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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

^[2] Former section 1203.066, subdivision (c) was renumbered as section 1203.066, subdivision (d), after Bird committed the crimes.

^[3] The People inaccurately state in their brief that Bird has two prior violent felony convictions. The record reflects only misdemeanors and one serious felony conviction, residential burglary. However, the trial court did not refer to Bird's criminal history as a factor in denying probation.