Opinion
A152966
12-19-2018
THE PEOPLE, Plaintiff and Respondent, v. ISIDRO ARIZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51710227)
Defendant Isidro Ariza appeals from the trial court's judgment following a jury trial in which he was found guilty of committing two lewd acts upon a child under the age of 14. Defendant contends the court abused its discretion by completely disregarding one of the facts in favor of granting him probation that are stated in California Rules of Court, rule 4.414 and denying him probation. We affirm the judgment.
BACKGROUND
In August 2017, the Contra Costa District Attorney charged defendant in a first amended information with five felony counts of committing a lewd act on May 15, 2017, upon Jane Doe, a child under 14 years of age, in violation of Penal Code section 288, subdivision (a). In each count, the district attorney charged defendant with committing a different lewd act—upon Jane Doe's thigh; upon her buttocks; upon his hand going into her pants; upon her midsection; and upon her breast.
All statutory references are to the Penal Code unless otherwise stated.
I.
The Trial
A trial was held beginning in August 2017. The People presented the testimony of Jane Doe, her mother and a police officer. Defendant testified, and also presented the testimony of 10 witnesses about his good conduct, character and reputation. We focus on the trial testimony of Jane Doe and defendant.
A. Jane Doe's Testimony
Jane Doe testified that on May 15, 2017, she was a month shy of her 14th birthday. She understood that defendant was her uncle and a blood relative, and his wife was her aunt. She went to school with defendant's daughter, Estrella, with whom she was good friends. She had known defendant since she was little and was close to him. She thought he was nice and she was comfortable around him. Sometimes they played. Starting when she was around 13 years old, he tickled her a few times on her stomach and her leg. This was okay with her. She saw him tickle his daughters, who also were okay with it.
Jane Doe said that for years, she went every week day after school to defendant's apartment and stayed there until 4 p.m., when her parents picked her up. On May 15, 2017, she went to defendant's apartment as usual. Her aunt, defendant, Estrella and one of Estrella's three sisters, four-year-old Crystal, were there. Jane Doe's aunt and Estrella left to pick up the other children while Jane Doe, defendant and Crystal remained at the apartment. Jane Doe expected Estrella to return in about 30 minutes. She and Crystal went to the bedroom Estrella and Crystal shared. Jane Doe laid down on her back on one bed and Crystal laid down on the other, a few feet away. Jane Doe was wearing jeans, underwear, a sweater, a t-shirt and a bra, and her shoes were off.
Jane Doe further testified that defendant came into the bedroom, left the door open, went over to her and touched her in various ways. First, he grabbed the top of her left thigh with his right hand. This was different than how he had tickled her leg and it bothered her because "[h]e went too far up." Next, he hit her buttocks over her clothes a few times with his right hand, which shocked her. He then put his right hand down the front of her jeans. He got a little bit inside her underwear and to the top of her vagina, but did not touch her pubic hair. He had never touched her like this before and she did not want him to do it. She put her hands over her vagina and pushed down, stopping him.
Next, defendant quickly put his right hand under her shirt. He grabbed her right breast, moved his hand a little and squeezed. He repeated this a few times. He asked her if she wanted him to stop, and she said, " 'Yes.' " Defendant moved to a window near the bed and stared outside for about two minutes while Jane Doe remained lying down on the bed. He then grabbed her stomach under her shirt with his right hand. She did not try to stop him because she was shocked and did not have the strength to move.
At some point, Jane Doe testified, she received a text from her mother on her phone, which was in her hand. Defendant's hand was no longer on her stomach; he was right next to her, doing "[n]othing." The text indicated her mother was downstairs. Jane Doe told defendant she was leaving and put on her shoes. Defendant told her "to not tell nobody about what happened." He was acting "scared or nervous," and grabbed his head as if "he was thinking of what he did." Jane Doe left and went to her mother.
Jane Doe said she told her mother that day something had happened. It was hard to do because she did not want to cause problems between the two families. She talked to the police about the incident the next day. She no longer talked with Estrella and did not want to be around defendant.
Jane Doe's mother testified that Jane Doe seemed upset that day. When mother asked her what had happened, Jane Doe said her uncle had touched her backside. The next day, mother asked Jane Doe to tell her everything that had occurred. Jane Doe said defendant touched her backside, and also put his hand inside her blouse, touched her breasts and tried to put his hands inside her pants until she stopped him.
B. Defendant's Testimony
Defendant testified that he was 34 years old, had been married for 15 years, and had four daughters, including Estrella and Crystal. Jane Doe was the daughter of defendant's second cousin and the two families were very close, commonly getting together for holidays, birthdays and other celebrations. He had known Jane Doe for 10 or 11 years and considered her to be like a daughter. Prior to the incident, he was affectionate with her and sometimes tickled her. He played with her and took her places. She came to his home every day after school because her parents worked, something she had done since she started at her school 10 years before. Sometimes, defendant was home from work when she was there.
Defendant testified that on May 15, 2017, he arrived home sometime around 3:20 p.m. or 3:30 p.m. His wife was making food, and Estrella, Jane Doe and Crystal were in the dining room. At around 3:45, his wife left with Estrella to pick up their other daughters from after school. It only took two minutes to get to the daughters' school, so he did not expect his wife and children to be gone very long. He, Jane Doe and Crystal ate some food in the dining room. When they finished eating, Jane Doe went to Estrella's bedroom and defendant went with Crystal to the living room to play and watch television.
Defendant said that at around 4:00 p.m., he went to Jane Doe because her mother was picking her up around that time. Crystal followed him into the bedroom. Jane Doe was lying on one of the two beds in the room, texting or something on her phone. Defendant said in a playful way, " 'Damn, girl, stop using that phone.' " Jane Doe did not react. Defendant went to the room's window and looked outside. Then he started to playfully tickle Jane Doe with both hands midway on her thigh, as he had done before. She moved onto her side and he slapped her buttocks three times because "it seemed kind of funny to me" and "it was like playing." He had not slapped her buttocks before.
Next, defendant said, he mildly squeezed a little bit above Jane Doe's waist with both hands, then put his left hand over her clothes and his right hand on her skin (because Jane Doe's shirt was up). He did this to tickle her, as he had done with her and his daughters before. He said playfully, " 'Damn, girl, you're very skinny.' " Jane Doe did not say anything and still looked at her phone. Defendant began to tickle her on her ribs, which he had not done to her before, although he had done it to his daughters. He asked her something like, " 'Do you want me to keep going?' " She did not respond to his playing around. He pinched one of her ribs on her skin, about six inches below her breast and she hit him with her elbow. Defendant testified, "My hand slipped, and it was so fast because I was tickling her so fast that I squeezed her breast" over her bra accidentally. He pulled his hand away and moved backwards on the floor towards the other bed because he felt bad. Although he thought most of his playing had been okay, he knew touching her breast "wasn't good."
Defendant said Jane Doe then got up. She said Estrella had her backpack, her mother was downstairs and she was leaving. Defendant said, " 'Sorry sweetie. Don't say anything to anyone,' " because, he "knew that it was bad" to touch her breast, even if it was playful. He was afraid he was going to get in trouble for what he had done. Jane Doe left. Throughout the time defendant played with Jane Doe, Crystal looked out the window in the room.
Defendant testified that he did not touch Jane Doe because of any sexual interest in her. He did not put his hand down the front of her pants, nor did he touch her breast, move away and then come back and touch her stomach. He had tickled about ten girls and four boys, who were relatives. He thought a girl who reached fifteen years of age was too old to be tickled.
Defendant also testified that his wife and two other children returned home just minutes after Jane Doe's departure. He did not tell his wife what happened because she was busy feeding the two children. He left and got a haircut. Upon his return, he did not talk to his wife or try to call Jane Doe's parents because what had happened was an accident. He continued to feel bad about it the next day. Jane Doe's parents called his wife and came over. Defendant talked with all of them about what had happened. The police arrived a couple of hours later and he was arrested.
C. Verdict and Sentencing
The jury found defendant guilty of counts three and five, the commission of a lewd act upon his hand going into Jane Doe's pants and the commission of a lewd act upon Jane Doe's breast respectively. The jury could not reach a verdict on the other three counts, and the trial court declared a mistrial regarding them.
The probation department submitted a sentencing report, in which it stated that defendant was presumptively ineligible for probation under section 1203.066, subdivision (d)(1), but nonetheless recommended he be placed on probation. The department stated the incident appeared to be an "isolated" one involving "less serious" circumstances than those typically present in other cases. Defendant appeared remorseful, "seemed forthcoming with police" and early on "voluntarily acknowledged wrongdoing." Standardized evaluation tools indicated he posed a low risk of reoffending. He did not have a criminal record and was a long-time employee of the same company. He was willing to participate in a sex offender treatment program and to relocate to another city to avoid being too near Jane Doe.
A psychologist appointed by the court to evaluate defendant under section 288.1 submitted a confidential psychological evaluation to the court. The psychologist concluded from standardized evaluation tools and meeting with defendant that he posed a low risk of reoffending, did not meet the diagnostic criteria for pedophilia disorder, did not have any other mental disorder that made it likely for him to reoffend, was amenable to participating in a treatment program and did not pose a threat of physical harm to Jane Doe if probation was granted. The psychologist concluded defendant was "suitable for a grant of probation."
Section 288.1 provides in relevant part that "[a]ny person convicted of committing any lewd . . . act . . . upon or with the body . . . of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist . . . as to the mental condition of that person."
Before sentencing, defendant submitted to the court several dozen letters from family and friends. These letters attested to, among other things, his good character, respect for others, love of family, work ethic and trustworthy conduct with children. His attorney asserted that he was eligible for probation.
At the sentencing hearing, the prosecutor agreed defendant was legally eligible for probation. The court, after hearing argument, indicated it had "spent a great deal of time" reviewing defendant's letters or support. The court praised the "tremendous courage" of Jane Doe in coming forward and gave credit to her parents for immediately supporting her. It thought that Jane Doe "had absolutely no motive, whatsoever, to lie" and had "lost a great deal of her world," including the support of a community "that clearly comes together and stays together and raises their children together." The court continued, "But the safety of those children is paramount. It trumps everything else and it is . . . the most important job of the adults in those children's lives, . . . to protect those children. Thirteen is an incredibly vulnerable age. And to have someone who is in a position of ultimate trust violate that trust can do lifetime damage. And I don't think we should minimize that. [¶] I think we all, at least the attorneys and I, have certainly seen cases where the sexual activity is more involved. But that doesn't necessarily lessen or increase the amount of emotional or psychological damage."
As for the "realistic chance of recidivism," the court stated, "I have a great concern of that. I agree with the prosecutor; we rarely see these cases where there are priors because these type[s] of activities are done in private, in secret and often are not acknowledged and/or the victim is not believed or the allegations come to light many years later where it's more difficult to do anything about them within the criminal justice system. So the fact that there are no priors, no prior arrest is not particularly persuasive to me."
The court thought it was "significant" that the jury found defendant guilty of "the more serious allegations." Further, the court said, defendant "didn't stop the activity. [Jane Doe] stopped him. Had she not responded as she did in pushing him away and trying to get out of there and telling him to stop, it would have continued. And I don't think [defendant] can take credit for the fact that it didn't go further because that wasn't because of his actions. That was because of [Jane Doe's] actions."
The court, without stating whether defendant was presumptively ineligible for probation under section 1203.066 as the probation department asserted, concluded this was "not a probation case" because "there has been no acknowledgement of inappropriate behavior" by defendant and, "more importantly," because "the harm done is significant." It sentenced defendant to the low term of three years for count three and stayed the sentence for count five under section 654. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues the trial court abused its discretion in denying him probation. We disagree.
" 'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.' " (People v. Moran (2016) 1 Cal.5th 398, 402.) "[A] grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release." (Ibid.) "The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed." (People v. Welch (1993) 5 Cal.4th 228, 233; § 1203, subd. (b)(3) ["If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation"].)
As both parties acknowledge, defendant's eligibility for probation was subject to the conditions stated in section 1203.066, subdivision (d)(1). That subdivision provides that, if a person is convicted of violating section 288 and factors prohibiting probation stated in section 1203.066, subdivision (a) are not pled or proven (as was the case here), probation may be granted only if certain terms and conditions are met. These terms and conditions include that the court finds that rehabilitation of the defendant is feasible and defendant is amenable to treatment, that the court prohibit defendant from being placed or residing within one-half mile of the child victim's residence during the probation period unless this would not serve the victim's best interests and that there is no threat of physical harm to the victim if probation is granted. (§ 1203.066, subd. (d)(1)(B), (D), (E).)
The parties disagree over the further analytical steps a trial court should take in determining probation eligibility for a defendant who is subject to section 1203.066, subdivision (d)(1). The People contend section 1203.066, subdivision (d)(1) establishes a "presumptive prohibition against a grant of probation" and suggest a trial court should next consider whether a defendant presents so unusual a case under California Rules of Court, rule 4.413 that he or she should be considered for probation under California Rules of Court, rule 4.414. Defendant contends section 1203.066, subdivision (d)(1) does not establish such a presumptive prohibition and that the psychological evaluation report demonstrates he met all of that subdivision's requirements. Defendant then analyzes the court's ruling under California Rules of Court, rule 4.414 without discussing California Rules of Court, rule 4.413.
California Rules of Court, rule 4.413(b) states, "If the defendant comes under a statutory provision prohibiting probation 'except in unusual cases where the interests of justice would best be served,' or a substantially equivalent provision, the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation." Rule 4.413(c)(1) to (3) list factors that "may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate," which include factors relating to the basis for a statutory limitation on probation, factors limiting a defendant's culpability and the results of a risk/needs assessment of a defendant.
As we will further discuss, California Rules of Court, rule 4.14 states that criteria affecting the decision to grant or deny probation include certain specified facts relating to the defendant and to the crime. The court is not limited to these criteria. It may use "additional criteria reasonably related to the decision being made" and must state these additional criteria on the record. (Cal. Rules of Court, rule 4.408(a).) --------
We have no reason to decide whether this case involves a presumption against probation that requires application of California Rules of Court, rule 4.413. Assuming for the sake of argument that defendant is correct that there is no such presumption against probation, we conclude the court did not abuse its discretion in applying the criteria set forth in California Rules of Court, rule 4.414 or otherwise when it denied defendant probation.
Defendant contends the trial court abused its discretion by its disregarding defendant's lack of a criminal record in denying him probation. Defendant argues this was an abuse of discretion for three reasons. First, the court ignored this criterion, although it is included in California Rules of Court, rule 4.414(b)(1), which includes as a fact to be considered the "[p]rior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct."
Second, defendant argues, the court's reliance on its "speculation" that defendant may have committed similar past crimes amounted to reliance on factual findings critical to its decision that were not supported by the record. (See People v. Cluff (2001) 87 Cal.App.4th 991, 998-1103 [court abused its discretion in denying a defendant's motion to strike priors because its finding that he failed to update his sex offender registration in order to obfuscate his residence had no support in the record].)
Third, according to defendant, the court's speculation about his possible prior crimes amounted to an impermissible consideration. (See People v. Bolton (1979) 23 Cal.3d 208, 216-217 [trial court abused its discretion in considering defendant's illegitimate children on welfare unrelated to any rational attempt to assess the effect of his home environment on his past or potential criminal conduct]; People v. Morales (1967) 252 Cal.App.2d 537, 546-547 [abuse of discretion to impose a consecutive sentence based on the view that the defense was unmeritorious].)
Defendant contends the court's abuse of discretion was particularly significant given the numerous facts that purportedly support a grant of probation, including, as indicated by the probation department and court-appointed psychologist, that he posed no threat of physical harm to the victim, presented a low risk of reoffending, engaged in limited sexual activity for a very brief period of time, admitted the act but denied any lewd intent, was willing and able to comply with probation terms, and agreed to relocate miles away from the victim's residence.
Defendant's contentions are based on a mischaracterization of the court's statement about the absence of a prior criminal record for defendant. Although the court's statement is not a model of clarity, it does not indicate that the court completely disregarded the lack of a prior criminal record. Indeed, the court's reference indicates it considered that fact. Further, the court did not speculate that defendant might have committed similar past crimes. Rather, the court merely stated it had a "concern" about recidivism that was not relieved by the absence of a criminal record. Specifically, regarding what it referred to as the "realistic chance of recidivism," the court stated, "I have a great concern of that. I agree with the prosecutor; we rarely see these cases where there are priors because these types of activities are done in private, in secret and often are not acknowledged and/or the victim is not believed or the allegations come to light many years later where it's more difficult to do anything about them within the criminal justice system. So the fact that there are no priors, no prior arrest is not particularly persuasive to me."
In other words, the court indicated it would not give great weight to the absence of a prior criminal record in evaluating a particular aspect of defendant's case, i.e., his possible recidivism. "Sentencing courts have wide 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 [court did not abuse its discretion in denying probation and imposing a midterm sentence when it found the circumstances in aggravation and in mitigation were equal].) The court's expression of its concern about defendant's possible recidivism was not an abuse of discretion, particularly in light of defendant's denial that he engaged in any criminal conduct, his recounting of events contrary to Jane Doe's account, and his own testimony that he had "tickled" about ten girls and four boys who were his relatives.
As for defendant's assertion that there were many facts that supported granting probation, this ignores the multiple facts that supported denying probation. These include the court's finding that defendant while in "a position of ultimate trust" regarding Jane Doe violated that trust, and thereby may have done "lifetime damage" (see Cal. Rules of Court, rule 4.414(a)(9) [a fact relating to the crime includes "[w]hether the defendant took advantage of a position of trust or confidence to commit the crime]"). This finding was supported by the evidence. The record indicates that Jane Doe was very close to defendant, considering him to be her uncle. She had regularly been in his care since she was a young child. Given their longstanding familial relationship and defendant's caretaking role with respect to Jane Doe, this was a serious betrayal of a position of trust.
Further, the court found that "there has been no acknowledgement of inappropriate behavior" by defendant. (See Cal. Rules of Court, rule 4.414(b)(7) [a fact relating to defendant includes "[w]hether the defendant is remorseful"].) This finding was also supported by the evidence. Defendant contends that he should be credited with acknowledging his inappropriate touching of Jane Doe, even if he did not admit he did so with a lewd intent. However, he testified only that he touched Jane Doe's breast, and claimed he did so accidentally as he tickled her ribs and without any lewd intent. Contrary to Jane Doe's testimony, he denied that he put his hands down her pants or that he touched her breast, then moved away and came back to touch her stomach (the sequence of events described by Jane Doe). In view of the jury's verdict, the court had good reason to view defendant's denials as a refusal to take any responsibility for his conduct.
In short, the court was within its discretion to deny him probation based on these facts. Defendant's abuse of discretion argument is without merit.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.