Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. BAF003417 Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Law Office of E. Thomas Dunn, Jr., and E. Thomas Dunn, Jr., for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, David Delgado-Rucci, and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster J.
Defendant Scott Jon Lee appeals his conviction on multiple counts involving sexual conduct with a 15-year-old girl, Kayla O. He contends that he received ineffective assistance of counsel at trial, that the court’s erroneous exclusion of evidence violated his constitutional right to cross-examine witnesses, and that the trial court abused its discretion in denying him probation. We find no error, and affirm the judgment.
PROCEDURAL HISTORY
A jury convicted defendant on four counts of sexual intercourse by a person over the age of 21 with a person under the age of 16 (Pen. Code, § 261.5, subd. (d); counts 2-4, 8); one count of sexual penetration of a minor by foreign object (Pen. Code, § 289, subd. (h); count 1); three counts of oral copulation with a person under the age of 16 (Pen. Code, § 288a, subd. (b)(2); counts 6, 7, 9); and one count of contributing to the delinquency of a minor (Pen. Code, § 272, subd. (a)(1); count 10). The jury acquitted him on one count of unlawful sexual intercourse. (Pen. Code, § 261.5, subd. (d); count 5.)
Defendant filed a motion for new trial, asserting ineffective assistance of counsel. The court denied the motion, and denied defendant’s request for probation. The court imposed a total sentence of seven years eight months in state prison, consisting of the low term of two years on count 2, with consecutive eight-month terms on counts 1, 6, 7 and 9, and consecutive one-year terms on counts 3, 4 and 8. Defendant filed a timely notice of appeal.
FACTS
In February 2004, Kayla O. (hereafter Kayla), then 14 years old, obtained a work permit and was hired to wash dishes and wait tables at the Chuck Wagon, a restaurant and bar at the Silent Valley RV Club, a private resort in Poppet Flats in Banning. Defendant worked at the restaurant as the head cook. The restaurant was open only on Fridays and Saturdays from 4:00 p.m. to 8:00 p.m. and Sunday mornings. Defendant’s mother, Ione Lee, was the manager of the restaurant. She usually left at 8:00 p.m. on Fridays and Saturdays, when the restaurant closed. Kayla, defendant and the other employees usually left around 10:00 p.m., after they had cleaned up.
At the time Kayla worked there, the other employees were defendant, then aged 23, defendant’s brother James (Jimmy) Lee, who was 18, and brothers Joshua and Aaron Yarborough, who were 20 and 22, respectively. Ione Lee told all of them how old Kayla was, as did Kayla. Kayla turned 15 on March 9, 2004.
Kayla was attracted to defendant. She told him he was “cute and stuff” and flirted with him. Defendant responded to her flirting. He began to drive her home, and eventually, on April 4, 2004, they had sexual intercourse in his truck. The encounter included vaginal penetration with defendant’s finger. Thereafter, they had intercourse four or five times, sometimes in the truck and sometimes outside behind the restaurant. They had sex in the shower at the spa at Silent Valley on one occasion. They also engaged in oral sex several times, sometimes in defendant’s truck and at least once at his home. Kayla testified that defendant’s friend Joey witnessed them engaging in oral sex at defendant’s home.
Kayla testified that she was a virgin when she first had sex with defendant. She testified that defendant plied her with liquor from the restaurant’s supply and that she had had a lot to drink before she had sex with him the first time. She had also been drinking on the other occasions when they had sex. She drank regularly after work with all four of her coworkers.
Kayla attended a strict Christian school in Banning. When she told some classmates that she was having sex with an older man, the other girls told a teacher, who told the school principal. When the principal questioned Kayla, she initially denied it, but then admitted it. The principal informed Kayla’s parents, who then called the police. When she was questioned by the police, Kayla at first denied having sex with defendant, but then decided to tell the truth. The police provided her with a device to record conversations on her telephone, and asked her to call defendant and attempt to get him to admit having sex with her. She did not operate the device correctly during her initial call. During the unrecorded call, defendant “admitted everything.” During the call she did manage to record, defendant neither admitted nor denied any sexual involvement with her. He said repeatedly that they should talk in person.
Aaron Yarborough testified that he had told Detective Stanley, the investigating officer, that defendant had told him that he was having sex with Kayla. Yarborough claimed that he was intoxicated or had a hangover when Stanley interviewed him, that he was extremely nervous talking to a police officer, and that he was “confused” when he made that statement. He meant to say that defendant had told him about the case with Kayla, not that he had told him he was having sex with Kayla. Stanley testified that he did not observe any indication that Yarborough was under the influence of alcohol or drugs or that he was nervous, and that Yarborough told him that defendant had told him, about a week after the incident, that he had had sex with Kayla in the shower at the Silent Valley spa.
LEGAL ANALYSIS
THE COURT PROPERLY DENIED DEFENDANT’S MOTION FOR NEW TRIAL
Defendant filed a motion for new trial, arguing that his trial attorney provided constitutionally inadequate assistance, in that she failed to contact witnesses he identified for her who could have provided evidence which would have impeached Kayla’s credibility or would have established a financial motive for her accusations. He also contended that counsel was ineffective because she did not permit him to testify. The trial court denied the motion, finding that although trial counsel was clearly inadequately prepared for trial, her inadequacy did not meet the standards for ineffective assistance of counsel established by case law. Defendant renews these contentions on appeal.
More fully stated, defendant’s contention is that counsel’s representation was prejudicially deficient in the following respects:
An attorney provides deficient representation, in violation of the defendant’s state and federal constitutional right to the effective assistance of trial counsel, if the attorney’s performance fell below an objective standard of professional competence and resulted in prejudice to the defendant’s case. (Strickland v. Washington (1984) 466 U.S. 668, 687.) There is a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. (People v. Carter (2005) 36 Cal.4th 1114, 1189; Strickland v. Washington, supra, at p. 687.) Therefore, the defendant bears the burden of demonstrating both that counsel’s performance fell below standards of professional competence and that he suffered prejudice as a result. (Strickland v. Washington, supra, at p. 687.) To establish prejudice, the defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Ibid.) The defendant must show that there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (Id. at p. 694.) Stated another way, prejudice requires a showing that “there is a reasonable probability that, absent the errors, the factfinder [sic] would have had a reasonable doubt respecting guilt.” (Id. at p. 695.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694.)
Although defendant argues in his opening brief that counsel’s acts and omissions were prejudicial within the meaning of Strickland v. Washington, he argues in his reply brief that his attorney’s acts and omissions amounted to the withdrawal of a potentially meritorious defense and that “nothing else need be shown” to establish the violation of his constitutional right to counsel. It is not sufficient, however, to show that there was an available defense which was potentially meritorious in the abstract. Rather, defendant must show that, in light of all of the evidence, had the defense been tendered, there is a reasonable probability that the jury “would have had a reasonable doubt respecting guilt.” (Strickland v. Washington, supra, 466 U.S. at pp. 695-696.) For the reasons stated elsewhere, we conclude that defendant has not demonstrated that his attorney’s actions operated to withdraw a potentially meritorious defense.
Neither party addresses the standard of review to be applied on appeal from an order denying a motion for new trial based on ineffective assistance of counsel. Both appear to assume that we review the issue de novo. However, where the issue was presented to the trial court in a motion for new trial, and the motion was denied, we review the issue under the standard which applies to trial court rulings on motions involving mixed questions of law and fact: We uphold the trial court’s factual findings, express or implied, as long as they are supported by substantial evidence, but review de novo the ultimate question of whether the facts established in the trial court demonstrate a violation of the constitutional right to effective assistance of counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725; see also In re Resendiz (2001) 25 Cal.4th 230, 248-249.)
Here, the court made no express factual findings, except that trial counsel was “way above her head in . . . her ability to handle a matter of the complexity of this matter” and that she was unprepared “amounting to almost ineptness.” It concluded, however, that her “level of incompetence” did not rise to the level required by case law, and that defendant did not demonstrate that her incompetence was such that it is reasonably probable that a different result would have occurred if he had had more competent representation. It did not explicitly address any of defendant’s contentions, but concluded that defendant failed to show that counsel’s failings were prejudicial.
A court addressing a claim of ineffective assistance of counsel may dispose of the claim without addressing the issue of the attorney’s competence, if it finds that the defendant has failed to demonstrate prejudice. (Strickland v. Washington, supra, 466 U.S. at p. 697.) For the reasons we discuss below, we agree with the trial court that defendant failed to meet this burden with respect to the evidence, other than his own testimony, which he contends counsel should have presented. (We will separately address defendant’s contention that counsel was ineffective because she failed to have him testify.) Therefore, we will assume that all of the evidence defendant cites on appeal would have been admissible and could have been discovered by trial counsel in the exercise of reasonable diligence, and that trial counsel had no reasonable tactical basis for failing to proffer the evidence. We decide independently whether defendant established that counsel’s omissions were prejudicial within the meaning of Strickland v. Washington.
Omitted Evidence
Defendant contends that his attorney should have proffered evidence which would have impeached Kayla’s credibility. The omitted evidence falls into three categories: evidence that she was untruthful in some aspects of her account of her sexual relationship with defendant, evidence that she had a financial motive to lie about having had sex with him, and evidence that she was manipulative and prone to retaliate against anyone who “crossed” her.
In the first category, defendant produced a declaration from Bryan Jamison stating that Kayla had once commented to him that she had “been around the block” and that she had “been with two guys at the same time before.” She also discussed having had sex with former boyfriends. This evidence was inconsistent with Kayla’s testimony that she was a virgin when she first had sex with defendant. Defendant also produced a declaration from Kathleen Belwish, a former neighbor of Kayla’s family, who could have testified that Kayla told her that defendant got her drunk and “raped her outdoors.” He contended that this is inconsistent with Kayla’s account at trial that she had consensual sex five or six times with defendant in his truck, at the restaurant and at the Silent Valley spa. Finally, defendant produced the declaration of Joseph Assof, who stated that he had never witnessed defendant having sex with Kayla, and that he had lived in Reno, Nevada for the entire period of time Kayla was working at the Chuck Wagon and had not visited California during this time. This was inconsistent with Kayla’s testimony and her statement to police that defendant’s friend Joey had seen her giving defendant oral sex.
We assume, for the sake of argument, that Joseph Assof was the person who, according to Kayla, saw her having sex with defendant. Kayla did not know “Joey’s” last name. However, she did know that Joey lived in Reno.
In the second category, defendant relied on the declaration of Kathleen Belwish, who stated that she had personal knowledge that Kayla’s family was constantly in dire financial straights. She also stated that in March or April 2004, Kayla’s father Sean told her that Kayla had been raped at Silent Valley, and that they were going to sue the resort along with “the boy who had raped her.” He said that they would “have enough money to finally buy a house now.” He also provided the declaration of David Arlaud, a former landlord of Kayla’s family, who described the family’s financial difficulties, which resulted in his evicting them for nonpayment of rent.
In the third category, defendant relied on Arlaud’s declaration that “[a]t one point during [his] relationship with her family,” Kayla came to his house and asked if he ever got lonely. She said that if he ever did get lonely, he could look to her for “company.” Arlaud apparently interpreted this as a sexual come-on. Arlaud also stated that at some point, apparently while the unlawful detainer proceedings were pending, Kayla accused him of sexual harassment. He also implied that she was coached in her testimony at the trial on the unlawful detainer concerning the sexual harassment. Defendant also relied on Bryan Jamison’s declaration that Kayla told him that her mother had had one of Kayla’s ex-boyfriends put in jail because the boyfriend had broken up with Kayla. Defendant contends that all of these statements show that Kayla is manipulative and willing to retaliate against anyone who “crossed” her.
In discussing the prejudice he claims resulted from counsel’s failure to adduce the foregoing evidence, defendant does not differentiate among the various items or their relevance, and does not provide any meaningful analysis as to why this evidence was so crucial that its absence deprived him of a fair trial or rendered the outcome of the trial unreliable. He does not weigh the probative force of the omitted evidence against the evidence which was presented. Rather, he apparently assumes that any evidence whatsoever that Kayla was less than fully truthful would have damaged her credibility to such an extent that it is reasonably probable that jurors would not believe the rest of her testimony.
With respect to the determination of prejudice resulting from trial counsel’s unprofessional errors or omissions, the United States Supreme Court has held that “a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” (Strickland v. Washington, supra, 466 U.S. at pp. 695-696.) It is, of course, the defendant’s burden to demonstrate to the court that the error had such a pervasive effect. (Id. at pp. 687, 694.) Defendant has not engaged in any such analysis, and it is not our function to make his arguments for him. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
We do note, though, that defense counsel attempted to introduce evidence that Kayla had a financial motive to accuse defendant of having illicit sex with her. She sought to introduce evidence that Kayla was aware of the civil suit her parents filed on her behalf and that she would receive money if the suit was successful. Kayla and her mother testified to that effect at an Evidence Code section 402 hearing. However, because Kayla did not instigate the lawsuit and was not in control of it, and was indifferent about pursuing it, the court ruled the evidence not relevant and denied the defense motion to admit it. As we discuss below in connection with defendant’s claim that the court deprived him of any meaningful opportunity to cross-examine Kayla as to her putative financial motives, defendant has not challenged the correctness of that ruling. He has thus implicitly acknowledged that the ruling was correct. Defendant contends that counsel should have proffered David Arlaud’s and Kathleen Belwish’s testimony as well, to show that Kayla’s family was in financial difficulty. He contends that this would have persuaded the court as to Kayla’s motive to lie. However, he does not explain how additional evidence that Kayla had a financial motive to lie would have affected the trial court’s conclusion that the evidence was not relevant. The court’s ruling was apparently based on the fact that it was Kayla’s parents rather than Kayla who filed the lawsuit. Because Kayla was not in control of the lawsuit, the court apparently felt that the evidence showed only a financial motive on the part of her parents. Reasonable minds might reach a different conclusion as to the relevance of the evidence, but given the trial court’s ruling, we do not see how Arlaud’s and Belwish’s testimony would have persuaded the court to rule otherwise.
We also note that several witnesses contradicted Kayla’s testimony on various points, including her claim that defendant gave her alcohol to drink and that defendant drove her home alone. James Lee, defendant’s brother, testified that he, not defendant, drove Kayla home, while defendant drove the Yarborough brothers home. Joshua Yarborough testified that defendant always drove him home to Beaumont on Friday nights and sometimes spent the night at his house. On Saturdays, he and his brother stayed at defendant’s house in Banning. On the few occasions when defendant did drive Kayla home, Joshua accompanied them, and his brother would go home with James Lee.
James Lee and the Yarborough brothers also contradicted Kayla’s testimony that they all sat around drinking at the restaurant after work and denied that anyone gave Kayla alcohol at work. On one occasion, James saw her take vodka from the restaurant refrigerator. On another occasion, she took some beer that defendant had brought to drink after work. James testified that after Kayla took the vodka, they decided to stop serving it and removed it from the restaurant. Joshua Yarborough testified that he never gave Kayla alcohol and never saw her drink it. He thought he saw her inebriated once, however.
In addition, both Ione Lee and James Lee testified that they had not seen Joey Assof, a family friend, during the time Kayla worked at the restaurant. James testified that Joey was living in Reno at that time and had not stayed at the home he and defendant shared with their mother, where Joey had allegedly witnessed the sex act Kayla described. Ione Lee testified that Joey had worked for her “a long time ago” and that she did not know where he was living. Thus, the veracity of Kayla’s testimony was not unchallenged at trial.
Defendant also contends that Kayla significantly altered her testimony in her deposition given in her civil suit, thus demonstrating her willingness to alter her testimony to suit the situation. However, the deposition took place in March 2006, nearly a year after defendant’s trial, which took place in July 2005. Because the alteration in Kayla’s testimony had not occurred as of the date of defendant’s trial, defense counsel could not have made use of it. It is therefore irrelevant to the claim of ineffective assistance of counsel.
Moreover, none of the omitted evidence directly attacks the veracity of Kayla’s testimony on the key issue before the jury: that defendant had sex on multiple occasions with an underage girl. Jurors are instructed that while they may completely discount the testimony of a witness who has testified falsely in one respect, they may also determine that the witness testified truthfully in other respects. (CALJIC No. 2.21.2.) Thus, jurors who concluded that Kayla lied about not having had prior sexual experience or lied about other peripheral matters could nevertheless determine that Kayla testified truthfully that she had sexual relations with defendant.
We are also not persuaded that we have a sufficient record before us to permit us to reach a conclusion that the omission of any or all of this evidence rendered the trial’s result unreliable. At most, the declarations defendant submitted are arguably sufficient to make a prima facie showing that counsel may have rendered ineffective assistance. In the absence of an evidentiary hearing in which defendant’s declarants testified and were subjected to cross-examination, we are not in a position to evaluate the probative force of the omitted evidence. We therefore cannot say that defendant’s showing in his motion for new trial was sufficient to meet his burden of demonstrating prejudice within the meaning of Strickland v. Washington, supra, 466 U.S. 668.
Failure to Have Defendant Testify
Defendant also contends that trial counsel was ineffective because she did not have him testify. He contends that because he had no prior convictions and “no witness was under subpoena who could have impeached his testimony,” there was no conceivable tactical reason for counsel not to allow him to testify. The record shows otherwise. Bryan Jamison and other witnesses with knowledge of the alleged prior sexual assault incident were on the prosecution’s witness list, and the prosecutor told defense counsel that he intended to use the evidence of the alleged prior incident. Defense counsel, Louisa Pensanti, stated in her declaration that while she made no recommendation as to whether defendant should testify, she discussed with him the potential that he could be impeached with evidence concerning that incident if he did testify. Thus, substantial evidence supports the trial court’s implied finding that Pensanti had a tactical reason for her action.
If the trial attorney has proffered a reason for his or her act or omission, the defendant has the burden of showing that the attorney’s choice did not fall within the broad range of professional competence. (People v. Carter, supra, 36 Cal.4th at p. 1189.) Here, defendant did not show that counsel’s advice that he might be impeached with evidence of a prior incident of sexual misconduct was legally erroneous. The admissibility of the alleged prior incident was not litigated below, and on appeal defendant does not offer any legal authority or argument that the incident was not admissible, pursuant to Evidence Code sections 1101, subdivision (b) and 1108. Moreover, the record does not contain sufficient information to permit a determination as to its admissibility. The admissibility of the evidence pursuant to Evidence Code section 1101, subdivision (b) or section 1108 did not depend upon defendant’s testifying. However, because the prosecutor had stated that he intended to use it, it was reasonable for counsel to conclude that the prosecutor either intended to ask defendant about it if he did testify or to use the evidence in rebuttal in response to defendant’s testimony. Thus, defendant has not met his burden of demonstrating that there was no reasonable basis for concluding that it was advisable not to have him testify.
Evidence Code section 1108 provides, in pertinent part:
Defendant asserts that Pensanti did not “permit” him to testify. Pensanti stated in her declaration that she did not prevent defendant from testifying but rather left the decision to testify or not up to defendant, after explaining to him the potential pitfalls, including the risk of impeachment with the prior incident, while defendant stated in his declaration that Pensanti refused to “allow” him to testify. It was, of course, up to the trial court to resolve this conflict in the evidence. (People v. Taylor, supra, 162 Cal.App.3d at p. 724.) And, even assuming that counsel did prevent defendant from exercising his right to testify, defendant has not met his burden of showing a reasonable likelihood that the outcome would have been more favorable if he had done so. He might, as he says, have been able to explain persuasively why he did not refute Kayla’s accusations in the recorded telephone conversation, but the jury might nevertheless have believed Kayla’s testimony that defendant had sex with her, particularly if the evidence of the alleged prior incident was admitted to impeach or rebut his testimony.
For all of these reasons, we conclude that defendant did not meet his burden with respect to his claim of ineffective assistance of counsel, and that the court properly denied his motion for new trial.
THE COURT DID NOT VIOLATE DEFENDANT’S CONSTITUTIONAL RIGHT TO CONFRONTATION
Defendant contends that by excluding evidence of the civil suit filed on Kayla’s behalf, the trial court violated his right, under the state and federal Constitutions, to confront an adverse witness, in that he was not permitted to cross-examine Kayla about her putative financial motive for accusing him.
A criminal defendant’s right to confrontation unquestionably includes the right to effective cross-examination, but the right is not unlimited. “On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. And as we observed earlier this Term, ‘the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ [Citation.]” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) Thus, the trial court clearly had the authority to limit cross-examination by excluding evidence which it determined to be irrelevant. Unless the court’s ruling as to the relevance of the evidence was error, its exclusion of that evidence did not violate defendant’s constitutional right to confront witnesses.
Defendant’s argument is perfunctory and does not address the correctness of the court’s ruling that the civil suit was not relevant to Kayla’s motives because it was filed by her parents and there was no evidence that she instigated it. He has therefore failed to show any violation of his confrontation rights.
THE COURT DID NOT ABUSE ITS DISCRETION BY DENYING DEFENDANT PROBATION
Defendant makes a rather half-hearted argument that the court’s decision to deny him probation, based on facts which were not found to be true beyond a reasonable doubt by the jury, violated his constitutional right to a trial by jury. He says that the principles enunciated in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) should apply to this situation. In Cunningham, however, the court reiterated its holding in Apprendi v. New Jersey (2000) 530 U.S. 466, and Blakely v. Washington (2004) 542 U.S. 296 that no facts, other than the fact of a prior conviction, may be used to impose any sentence which exceeds the maximum sentence which could be imposed in the absence of those facts, unless it has either been admitted by the defendant or found true beyond a reasonable doubt by the jury. (Cunningham, supra, 127 S.Ct. at pp. 860, 864.) The court then held that California’s determinate sentencing law is unconstitutional to the extent that it permits the judge rather than the jury to find facts upon which it bases its decision to impose the upper term. (Cunningham, supra, 127 S.Ct. at pp. 868-871.) Here, the court declined to grant probation and imposed the low term on the principal count, with consecutive midterm sentences on all remaining counts. Because the court did not impose the upper term, Cunningham does not apply. Nor can its principles be extended to this situation, as defendant urges. Denying probation does not increase the length of defendant’s sentence beyond that which would otherwise be the statutory maximum; rather, it merely fails to reduce his sentence below that which the operative statute otherwise calls for. (See People v. Benitez (2005) 127 Cal.App.4th 1274, 1278.) Thus, the court’s reliance on facts not found by the jury does not increase defendant’s sentence, and it therefore does not violate his constitutional jury trial rights.
Defendant then argues that denying probation was an abuse of discretion “given the facts of the case and the facts related to [defendant].” He points out that the court found that he was not a danger to society or to the victim in this case, and that he was apparently seduced by the victim. He also points out that he had no criminal record, that he was nonviolent, and that in the subsequent civil proceeding, the victim had contradicted her testimony in the criminal trial, thus calling her veracity into question.
“All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise.” (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “The grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]” (Ibid.) “‘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 granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’ [Citation.]” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)
Rule 4.414 of the California Rules of Court sets forth criteria the trial court should consider in deciding whether to grant probation. Rule 4.408(a) provides that a court may consider factors not listed in rule 4.414, provided those factors are reasonably related to that decision. (People v. Weaver, supra, 149 Cal.App.4th at p. 1313.) The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. (Ibid.) In determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court’s finding that a particular factor was applicable. (Ibid.)
Rule 4.414 provides:
Here, the court acknowledged that there were some factors which weighed in favor of probation, although it did not state what those factors were. In support of its decision to impose the lower term, the court stated that defendant was “not a danger” and that Kayla made the original advances toward defendant. Presumably those were the factors the court weighed when considering whether to grant or deny probation. It concluded, however, that other factors weighed more heavily against granting probation, specifically that Kayla was given alcohol so that her inhibitions were lowered, i.e., that she was particularly vulnerable (Cal. Rules of Court, rule 4.414(a)(3)); there was emotional injury (Cal. Rules of Court, rule 4.414(a)(4)); and defendant took advantage of a position of trust (Cal. Rules of Court, rule 4.414(a)(9)).
The evidence at trial established that defendant gave Kayla alcohol, and Kayla and her mother informed the court at sentencing that Kayla had suffered emotionally. The evidence also supports the court’s conclusion that defendant violated a position of trust. He was 23 years old, and was the head cook at the restaurant where Kayla worked. In his mother’s absence, he was in charge of the restaurant’s functions and was responsible for locking up. His mother, Ione Lee, testified that she specifically told all of the male employees that Kayla was only 14. She stressed that Kayla was younger and that “we needed to help each other out.” Substantial evidence therefore supports the factors the court relied upon. We cannot say, as a matter of law, that the court should have found that factors favorable to a grant of probation outweighed these factors, or that the court’s conclusion exceeds the bounds of reason. Therefore, we cannot say that the denial of probation was an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.
1. She failed to investigate adequately to discover that Bryan Jamison could testify that shortly after she began working at the Chuck Wagon, Kayla said, in his presence, “I’ve been around the block; I’ve been with two guys at the same time before,” and that she had had sex with ex-boyfriends, and failed to file a motion pursuant to Evidence Code section 782 for an order permitting her to adduce Jamison’s testimony. Jamison’s testimony would have been admissible to impeach Kayla’s testimony that she was a virgin when she first had intercourse with defendant and would thus have impeached her credibility.
2. She failed to take the necessary actions to introduce Jamison’s testimony that Kayla told him that her ex-boyfriend was in jail because he had broken up with her, thus showing that Kayla was motivated to manipulate and retaliate against someone who “crossed” her.
3. She failed to contact and subpoena Joseph Assof, who would have testified that he was not present when Kayla performed oral sex on defendant, contrary to Kayla’s assertion that Assof did witness the incident.
4. She was not prepared to argue effectively for the relevance of proposed testimony by David Arlaud, which would have shown that Kayla was willing to offer sex for a perceived advantage, that she made an unfounded accusation of sexual harassment, and that her family was in dire financial straits, thus indicating a financial motive for her accusation against defendant.
5. She failed to investigate adequately to discover a witness, Kathleen Belwish, who could have testified that Kayla told her that defendant raped her outside the Chuck Wagon, contrary to her testimony that she had consensual sex with him in his truck and in his home. Belwish could also have testified to the financial circumstances of Kayla’s family.
6. She failed to interview witnesses prior to trial and thus was unable to prevent or explain contradictions in their testimony at trial which was damaging to defendant’s case.
7. She did not “permit” defendant to testify to explain his failure to deny Kayla’s accusations in the recorded telephone conversation.
“(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Evidence Code section 1101 provides:
“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. “(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
“Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
“(a) Facts relating to the crime
“Facts relating to the crime include:
“(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;
“(2) Whether the defendant was armed with or used a weapon;
“(3) The vulnerability of the victim;
“(4) Whether the defendant inflicted physical or emotional injury;
“(5) The degree of monetary loss to the victim;
“(6) Whether the defendant was an active or a passive participant;
“(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;
“(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and
“(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.”
“(b) Facts relating to the defendant
“Facts relating to the defendant include:
“(1) Prior record of criminal conduct . . .;
“(2) Prior performance on probation or parole and present probation or parole status;
“(3) Willingness to comply with the terms of probation;
“(4) Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
“(5) The likely effect of imprisonment on the defendant and his or her dependents;
“(6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction;
“(7) Whether the defendant is remorseful; and
“(8) The likelihood that if not imprisoned the defendant will be a danger to others.”