Opinion
C081567
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER CATHALIFAUD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F02607)
Defendant Alexander Cathalifaud appeals the judgment of conviction entered following his guilty plea to six counts of committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a); counts one through six), one count of arranging a meeting with a minor with the intent to commit a sexual offense (§ 288.4, subd. (b); count seven), and six counts of unlawful communication with a minor with the intent to commit a sexual offense (§ 288.3; counts eight through thirteen). The trial court sentenced defendant to an aggregate term of nine years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in denying his request for probation. Defendant further contends the trial court erred in imposing a midterm sentence of six years on count one. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant pleaded guilty, the underlying facts are taken from the probation report.
On April 25, 2015, Folsom police officers were dispatched to a residence regarding "unusual circumstances" involving a 12-year-old girl. When the officers arrived at the residence, a young girl told them that her friend, a 12-year-old girl named A.W., was attempting to meet an adult male down the street. Shortly thereafter, police officers located defendant and A.W. sitting in the rear seat of a car. A.W. was in her underwear and defendant was naked below the waist with a semi-erect penis. An unwrapped condom was on the seat beside defendant.
A.W. told the officers that she had met defendant the day before on Instagram. She said that she knew how old defendant was, and that defendant knew how old she was. A.W. explained that they had exchanged text messages and used the "Kik" application to communicate. During their communications, defendant had asked A.W. if he could "fuck" her. Defendant told A.W. that they could meet somewhere or he could pick her up.
A.W. explained that she decided to meet defendant after consuming a couple of beers and some wine. When she got into the back of defendant's car, defendant tried to kiss her but she pushed him away. Defendant then pulled A.W.'s breasts out and began to kiss and bite them. He also pulled off her pants and licked and sucked her vagina. After penetrating A.W.'s vagina with his finger, defendant pulled down his pants and A.W. orally copulated him. Defendant then put on a condom and had sexual intercourse with A.W.
A search of defendant's phone revealed that he had engaged in numerous conversations through the "Kik" application with other minors. Almost all of these conversations began with defendant sending a picture of his erect penis. The conversations involved sexual discussions and sexual solicitations.
Defendant pleaded guilty to six counts of committing a lewd or lascivious act upon a child under the age of 14 (§ 288, subd. (a)), one count of arranging a meeting with a minor with the intent to commit a sexual offense (§ 288.4, subd. (b)), and six counts of unlawful communication with a minor with the intent to commit a sexual offense (§ 288.3). The trial court sentenced defendant to an aggregate term of nine years in state prison.
Defendant filed two timely notices of appeal.
DISCUSSION
A. Denial of Probation
Defendant contends the trial court abused its discretion in denying his request for probation. Defendant argues that the trial court's determination that his criminal conduct was undertaken with criminal sophistication or professionalism was arbitrary and not grounded in reason. Defendant further argues that the trial court erred in finding that he would be unable to comply with the terms of his probation, that his unlawful conduct would continue, and that he represented a danger to the community. According to defendant, these findings are not only contrary to the conclusions of Drs. Cynthia Neuman and Jessica Ferranti, but they lack any credible support. Finally, defendant argues that the trial court made its decision to deny probation in an arbitrary and capricious manner because it ignored both the interests of justice and the needs of defendant. We find no abuse of discretion.
"Probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court." (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) California Rules of Court, rule 4.414 provides some of the criteria the trial court may consider in exercising its discretion. The trial court is not limited to those factors, and it may consider others not enumerated in the rules so long as the court states any additional criteria on the record. (Rule 4.408(a).) The criteria enumerated in the rules will be deemed to have been considered by the sentencing judge "unless the record affirmatively reflects otherwise." (Rule 4.409.)
Further rule references are to the California Rules of Court.
"A defendant who is denied probation bears a heavy burden to show the trial court has abused its discretion. [Citations.] Furthermore, 'a denial of probation after consideration of the application of its merits is almost invariably upheld. [Citations.]' [Citation.]" (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157.) As a reviewing court, it is not our function to substitute our judgment for that of the sentencing judge. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311, disapproved on other grounds in People v. Cook (2015) 60 Cal.4th 922, 939.) On appeal, we may not reweigh the sentencing factors. (People v. Scott (1994) 9 Cal.4th 331, 355.) Instead, we limit our review to a single issue—whether the sentencing court abused its discretion. (People v. Jordan (1986) 42 Cal.3d 308, 317.) We may not reverse the sentencing court's decision merely because reasonable people might disagree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
Here, the record reflects that the trial court carefully considered the relevant criteria and did not abuse its discretion in denying defendant's request for probation. At sentencing, the trial court discussed each of the sentencing factors enumerated in rule 4.414, and identified numerous reasons to deny probation that are supported by the record, including the nature and seriousness of the crime, the vulnerability of the victim, the physical and emotional injury inflicted on the victim, defendant was an active participant in the crime, the crime was not committed because of an unusual circumstance which is unlikely to reoccur, the manner in which the crime was carried out demonstrated criminal sophistication or professionalism, and it was likely defendant would be a danger to others if he was not imprisoned. (Rule 4.414(a) & (b).)
Though he did not use any of the items contained therein, the trial court noted that it was "significant" that defendant possessed a "sex kit" when he committed the crimes against A.W. The court also noted that defendant did not "back off his intent to gratify his sexual desires even when [A.W.] pushed him away."
With respect to sophistication or professionalism, the trial court found that defendant adroitly and skillfully used the Internet and social media to repeatedly groom and converse with girls 11 to 14 years old on sexually explicit subjects. The trial court also noted that defendant had a sex kit with him when he was found with A.W.
The trial court additionally noted that it had considered the general objectives in sentencing as described in rule 4.410 as well as the primary considerations in granting probation set forth in section 1202.7. In denying defendant's request for probation, the court found that probation was inappropriate due to the multiple serious and violent lewd and lascivious acts defendant committed upon A.W. The court also found that probation was inappropriate because there was an insufficient likelihood that defendant would succeed on probation based on the risk he would reoffend, and because of the serious and repetitive nature of the offenses. In so finding, the trial court gave little weight to the psychological reports prepared by Drs. Neuman and Ferranti, which, respectively, concluded that defendant was not a pedophilic offender and was a low risk for future sexual violence (Dr. Ferranti), and that defendant was not a danger to others because he was not predisposed to the commission of sexual offenses (Dr. Neuman). The court explained: "The clinical analysis of Drs. Neuman and Ferranti have been considered, but much of their conclusions depend on the credibility of the defendant, which has been contradicted by the evidence as a whole; and their reports . . . downplay the gravity of the offenses and impacts on the victims." With respect to the danger posed by defendant, the court found that the doctors' "approach to defendant's situation minimize[d] the serious and violent nature of not only the persistent communications with . . . young females, but also the no-holds-barred sexual attack on a girl that was 12 years old, incapable of consenting and under the influence of alcohol." The court noted that there was ample evidence and information showing that defendant targeted young females for months before victimizing A.W., and that defendant only stopped engaging in this behavior because he was caught.
In view of the trial court's lengthy and reasoned explanation for its sentence choice, we cannot say its decision to deny probation was so irrational or arbitrary that no reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at p. 377.) To the extent defendant suggests reversal is warranted because the trial court should have credited the conclusions of Drs. Neuman and Ferranti and weighed the relevant criteria differently, we disagree. (People v. Scott, supra, 9 Cal.4th at p. 355 [appellate court will not "reweigh valid factors bearing on the decision below"].) The weight to be given to the conclusions in those reports was for the trial court to decide. It is not the function of an appellate court to substitute its judgment for that of the sentencing judge. (Carmony, supra, 33 Cal.4th at p. 377.)
B. Imposition of the Middle Term on Count One
Defendant contends the trial court erred in imposing the middle term of six years on count one. We disagree.
A violation of section 288, subdivision (a) is punishable by three, six, or eight years in state prison. (§ 288, subd. (a).) When selecting one of the authorized prison terms, "the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Rule 4.420(b); see rules 4.421 [circumstances in aggravation] & 4.423 [circumstances in mitigation].) The trial court enjoys broad discretion in its sentencing decisions, which we review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) We must affirm the lower court's sentencing decision "unless there is a clear showing the sentence choice was arbitrary or irrational." (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) A defendant "bears a heavy burden" when attempting to show the trial court has abused its sentencing discretion. (People v. Bradley (2012) 208 Cal.App.4th 64, 89.)
The trial court abuses its discretion "if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (People v. Sandoval, supra, 41 Cal.4th at p. 847.) " '[U]nless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria, including any mitigating factors.' [Citation.]" (People v. King (2010) 183 Cal.App.4th 1281, 1322.)
We conclude that the trial court's decision to sentence defendant to the middle term on count one is amply supported by the record and is not an abuse of discretion. The court considered relevant factors in sentencing defendant and determined that a middle term sentence was appropriate based on the presence of multiple mitigating and aggravating circumstances. The trial court found the following factors in aggravation: (1) the crime involved acts disclosing a high degree of cruelty or callousness, (2) the victim was particularly vulnerable, (3) defendant induced a minor to participate in the crime, (4) the manner in which the crime was carried out indicates sophistication and planning, and (5) defendant engaged in violent conduct that indicates he is a serious danger to society. (See rule 4.421(a) & (b).) In mitigation, the trial court found that defendant: (1) had no prior record, (2) voluntarily acknowledged wrongdoing at an early stage of the criminal process, (3) was youthful, (4) is hearing-impaired, (5) had led a productive life and taken positive steps toward rehabilitation, and (6) was socially immature. (Rules 4.423(b) & 4.408.)
Defendant acknowledges that, "[u]nder most circumstances, [he] would concede that the court acted in [a] manner consistent with its statutory mandate." However, he argues that the "unusual" circumstances of this case support a lesser sentence, including the existence of multiple mitigating circumstances, the prosecutor offered to resolve the case for a three-year term of imprisonment, and the prosecutor requested a sentence between three and six years. We discern no error. The trial court had wide discretion to weigh the aggravating and mitigating factors, and acted well within its discretion in imposing the middle term under the circumstances of this case. The "unusual" circumstances identified by defendant do not demonstrate an abuse of discretion.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BLEASE, J. ROBIE, J.