Opinion
C051037
4-30-2007
THE PEOPLE, Plaintiff and Respondent, v. JOHN MICHAEL TOWNSEND, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant John Michael Townsend entered a plea of no contest to child endangerment. (Pen. Code, § 273a, subd. (a).) Probation was denied and defendant was sentenced to state prison for the middle term of four years.
Defendant appeals, claiming his sentence violated his right to equal protection and was an abuse of discretion. We shall affirm.
FACTUAL BACKGROUND
In September 2004, a search warrant was served at a residence owned by defendant and his wife, Lorraine, who was also charged in the matter. Their four-year-old son resided with them at the residence. In the garage of the residence, where two other individuals were living, police officers discovered used glass pipes, hypodermic syringes, prescription pills, 0.1 grams of methamphetamine in a plastic bag, numerous baggies with a white residue and "documentation consistent with pay-owe sheets." The garage was accessible by a door in the residence, and the methamphetamine, a bag of pills, the smoking pipes and the syringes were all located on a table that was low enough to be accessible to someone the height of defendants child. According to a nine-year-old child who also resided at the home with her parents, defendants son and she sometimes visited the occupants of the garage.
During the search of the residence, Lorraine was located in the southwest bedroom, where letters addressed to defendant, as well as a handwritten piece of paper with "several lines on it describing people by their first name and then what they owed," were discovered on a dresser. Numerous prescription pill bottles were found in the adjacent bathroom, some in lower drawers presumably accessible to defendants son, although none of the pills appeared to be possessed illegally.
A small baggie containing an off-white residue was located in the northwest bedroom, where the nine-year-old child and her parents slept.
At the time of the search, defendant told an officer that "as far as he knew drugs were sold out of the garage" and that "it did not surprise him people were coming to his house to get prescription medicine." Defendant said he suspected Lorraine was involved.
Defendants son was placed into protective custody by the local social services agency. A medical consultation revealed the child "show[ed] evidence of developmental delays, mild mental retardation, and [p]ost-traumatic [s]tress [d]isorder, which in part was cause[d] by his living environment." The minor "appear[ed] to be severely traumatized by the incident and [wa]s terrified of the defendants."
DISCUSSION
Defendant and Lorraine both entered no contest pleas to child endangerment. Lorraine was granted probation, while defendant was sentenced to state prison. Defendant contends this discrepancy in sentencing violated his right to equal protection as guaranteed by the state and federal Constitutions. We disagree.
Initially, we note defendant did not argue in the trial court that he was entitled to the same sentence as Lorraine. In People v. Paul (1978) 78 Cal.App.3d 32, 49, the appellate court rejected an equal protection argument based on disparate sentencing, in part, because the defendant failed to object to his sentence on these grounds in the trial court. Nonetheless, as defendant claims his trial attorney rendered ineffective assistance of counsel by failing to raise the issue, we address it in this context.
"[T]he unlawful administration by state officers of a state statute that is fair on its face, which results in unequal application to persons who are entitled to be treated alike, denies equal protection if it is the product of intentional or purposeful discrimination." (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 832.) However, "[u]nequal treatment . . . which reflects a nonarbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement." (Ibid.)
"Modern penological thought is based upon the concept that punishment should fit the offender as well as the crime. Within the area delimited by constitutional and statutory restrictions, the sentencing judge has broad discretion to consider not only the offenders guilt, but also his potential for rehabilitation balanced against the communitys need for protection." (People v. Smith (1968) 259 Cal.App.2d 868, 873.) "A sentencing court considers not only the circumstances of the crime, but circumstances individual to each defendant. . . . So long as appellants sentence was justified by appellants crimes, individual culpability, and record, the sentence received by an accomplice is not relevant." (People v. Foster (1988) 201 Cal.App.3d 20, 27.)
Defendant maintains the disparity between his sentence and that of Lorraine "can only be accounted for on the basis of gender," in that "[t]he male is assumed to be more `in control of what is occurring within the household and thus more responsible for the `extensive drug sales that were going on." To the contrary, although the circumstances immediately attendant to the offense committed by defendant and Lorraine were similar in many respects, there were differences in their circumstances that properly supported the trial courts sentencing decisions.
At the time of the offense, Lorraine acknowledged she was a methamphetamine user, and in her probation interview, she admitted to a long-standing addiction to methamphetamine as well as having been diagnosed with bipolar disorder. Lorraine "expressed remorse" to a social worker "for the position that she ha[d] placed her son in," as well as acknowledging to the probation officer the toll the situation had taken on her son and her responsibility for this. Lorraine sought out treatment for her substance abuse, and her program reported she had "show[n] great strength, courage, and commitment to growing as a mother and person through her commitment to" the program.
Defendants circumstances were quite different. Defendant denied drug use while admitting he knew drugs were being sold out of the garage. He also stated he was not surprised that prescription drugs were being obtained from his home. Defendant admitted he suspected Lorraine was involved in drug use and sales. Regarding the pay-owe sheets in his bedroom, defendant claimed he did not know what they were or why they were there. And, according to the social services agency that placed the child in protective custody, defendant did not express remorse for his actions and "blame[d] the whole situation on [his wife]," although he had expressed remorse during his probation interview.
At defendants sentencing hearing, the trial court explained it was denying probation based on the nature, seriousness and circumstances of the case, the vulnerability of defendants son and the degree of harm that was caused. The court noted it was disturbed by "the extent of the sales that took place, all within either direct or indirect control of [defendant]."
There is nothing in the record to suggest the trial courts denial of probation to defendant and grant of probation to Lorraine were based on gender. Lorraine was an addict when the offense occurred, which helped to explain her lack of judgment in exposing her child to harm. Moreover, Lorraine was in a treatment program and making notable progress at the time of sentencing. The trial court relied on Lorraines progress in treatment, as well as other background factors, to support a grant of probation in her matter.
It was reasonable for the trial court to find that no similarly mitigating circumstance served to explain defendants failure to take any action to protect his child. Defendant, who did not use drugs and, yet, was cognizant that drug activity was occurring in his home, took no action to protect his child from the dangers inherent in such an environment. Instead, he simply ignored the situation, to the detriment of his young child. And the trial court reasonably could have concluded that defendants inaction could not be explained adequately by the fact that he "had trouble in school" or was once diagnosed with attention deficit hyperactivity disorder. In sum, the record discloses no evidence that the trial court discriminated against defendant based on his gender. Consequently, defendant has failed to demonstrate he received ineffective assistance of counsel as a result of his trial attorneys failure to make an equal protection argument.
For the same reasons, we reject defendants argument that denying him probation was an abuse of discretion. "The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation . . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "[I]n the absence of a clear showing that its sentencing decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate sentencing objectives . . . ." (People v. Giminez (1975) 14 Cal.3d 68, 72.)
Here, the trial court based its decision to deny defendant probation on appropriate factors, including the vulnerability of the victim (defendants son) and the harm caused to him. (Cal. Rules of Court, rule 4.414(a)(3) & (4).) Given the young age of defendants child, his cognitive and developmental problems, and the trauma he suffered as a consequence of defendants conduct, the trial courts determination was not an abuse of discretion.
Defendant contends the trial courts denial of probation lacked evidentiary support to the extent it was based on "the assumption that [defendant] was the author of the pay/owe sheet found on his and his wifes bedroom dresser." The courts statement in this regard was that it was disturbed by "the extent of the sales that took place, all within either direct or indirect control of [defendant]" and that the pay-owe sheets were evidence of this. Notably, the trial courts comment regarding the pay-owe sheets did not impute authorship to defendant. The pay-owe sheets (most of which were found in the garage) were merely evidence of the amount of sales activity occurring at the residence, which was owned by defendant and Lorraine.
Accordingly, we conclude the denial of probation in this matter was neither a violation of equal protection nor an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur:
NICHOLSON, Acting P. J.
CANTIL-SAKAUYE, J.