Opinion
A099844.
10-10-2003
THE PEOPLE, Plaintiff and Respondent, v. LARRY WILFORD DIXON, Defendant and Appellant.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was in a long-term relationship with a woman named B.D. One or more weeks every month, appellant would stay with B.D. and her young daughter Melissa in their home in Humboldt County.
Starting when Melissa was 8 and continuing until she was 12, appellant would sneak into Melissas bedroom at night and would "touch her down there" while he masturbated. Melissa kept her eyes shut and pretended to be asleep during the molestations because she was afraid. This occurred up to three times every week.
Melissa started sleeping with her clothes on in an effort to protect herself. Later, when Melissa was approximately 12, she asked her mother to place a lock on her bedroom door. In addition, Melissa began pretending to wake up during the molestations. This apparently frightened appellant and he stopped.
Several years later when Melissa was 16, she told her mother what appellant had done. B.D. notified the authorities.
On February 1, 2002, Melissa, acting in conjunction with a deputy sheriff, called appellant and asked why he had molested her. Appellant admitted that he touched Melissa "a couple" of times. He tried to justify his actions, saying it was "a man thing." The call was recorded.
A few days later, deputies went to appellants home to question him about the crime. Appellant admitted that he had touched Melissa inappropriately although he claimed he had done so only twice. Appellant also admitted that he would masturbate while touching the girl, explaining it was "like looking at a magazine."
The molestations affected Melissa negatively. Whereas previously she had been a happy and friendly child, she became wary and had trouble forming relationships.
Based on these facts, a complaint was filed charging appellant with several sexual offenses. Appellant pleaded guilty to the two counts described above.
The trial court ordered appellant to undergo a psychiatric evaluation prior to sentencing as is permitted under section 288.1. Dr. Otto Vanoni evaluated appellant and submitted a report to the court. The doctor described appellant as an "idiosyncratic sex offender" and said he does not present a significant risk to reoffend. According to Dr. Vanoni, "Mr. Dixons aberrant behaviors can be controlled with an array of wrap around resources which include: 1. weekly psychotherapy, including individual and group therapy focusing on sexuality . . . 2. a restraining order from his step daughter 3. psychotherapy that deals specifically with his anxiety in dealing with women, not only sexually, but socially and intimately, 4. a tight reporting to his probation officer [and] 5. a consideration of temporary pharmacological intervention to reduce his anxiety and situational depression." Dr. Vanoni was careful to state that he was simply trying to determine whether appellant might reoffend. The doctor deferred to the court on what sentence might be appropriate saying, "it is the province of the court to determine how justice is served."
Section 288.1 states in part, "Any person convicted of committing any lewd or lascivious act . . . upon . . . 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 . . . as to the mental condition of that person."
The court also referred appellant to the California Department of Corrections for an evaluation pursuant to section 1203.03. The representative who prepared the evaluation report strongly opposed granting appellant probation. "Mr. Dixon has only expressed partial culpability for a few sexual encounters with [Melissa.] He has failed to fully acknowledge years of sexual abuse. The victim remains quite devastated and continues with counseling to this day. This has [affected] her social development. [¶] Mr. Dixon is simply not viewed as an acceptable candidate for probation supervision in the community. This was not a one time situational episode in a moment of weakness or even while intoxicated. Instead, this was a totally sober planned offense that repeated itself for years. Mr. Dixon had ample opportunity to evaluate his actions, stop and seek treatment. Instead he continued until [the victim] cleverly managed to prevent him from entering. In the aftermath he made no attempt to acknowledge his actions or seek help. [¶] These case factors indicate to me that his criminal behavior has escalated to a point where he presents a threat to society and any continued efforts at resolving his behavior by local community programs are unwarranted. I therefore recommend that he be removed from society and placed in the California Department of Corrections."
Section 1203.03, subdivision (a) states, in part, "In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days . . . ."
The probation report prepared prior to sentencing recommended lenience. It proposed that appellant be placed on probation for 8 years and that he serve one year in local custody.
The trial court evaluated all these recommendations at a sentencing hearing conducted on August 13, 2002. The court began by explaining how it planned to rule, "My tentative decision is contrary to the probation officers recommended action. I do agree with the probation officer that a total consecutive term of eight years is appropriate for these two crimes; but the tentative decision is that probation should not be granted in this case to Mr. Dixon. Instead, tentatively, I am of the belief that an immediate commitment to state prison should be ordered, given the following: Primary basis for this tentative decision is the vulnerability of the victim and the very evident emotional injury inflicted upon her by the defendant. And the effects of those injuries will obviously remain with the victim for a very significant period of time. I do acknowledge that Mr. Dixon has no prior record of criminal conduct, and Mr. Dixon does express a willingness to comply with terms and conditions of probation, including counseling; but the fact that Mr. Dixon clearly took advantage of a position of trust or confidence to commit these crimes, indicate [sic] to me, tentatively, that imprisonment is the proper disposition . . . ."
After hearing testimony from Melissas mother and stepfather and extensive argument from counsel, the court said it had decided to implement its tentative decision, "Everybody loses in cases such as this, no doubt about that, and I hope that Mr. Dixon does pursue some counseling and rehabilitation, but its going to have to be through the Department of Corrections. I cannot justify a grant of probation under the facts and circumstances of this case."
After denying probation, the court sentenced appellant to the mid-term of 6 years on the first count, plus an additional consecutive 2-year term for the second, for a total term of 8 years. This appeal followed.
II. DISCUSSION
Appellant contends the trial court abused its discretion when it declined to grant him probation.
Criminal sentencing is left to the sound discretion of the trial court. We review a decision to deny probation solely for an abuse of discretion, and will not reverse such a decision unless it is arbitrary, capricious, or exceeds the bounds of reason. (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1586.) The burden of showing such an abuse is on the party attacking the sentence. (People v. Cazares (1987) 190 Cal.App.3d 833, 837.)
In this case, the trial court cited three factors when declining to grant appellant probation: (1) the vulnerability of the victim, (2) the emotional distress she experienced, and (3) the fact that appellant took advantage of a position of trust to commit his crimes.
The trial court properly considered the vulnerability of the victim under California Rules of Court, rule 4.414(a)(3). The factor was supported by evidence that appellant committed his crimes after entering the unlocked bedroom of an apparently sleeping child.
All further rule references will be to the California Rules of Court.
The court properly considered the emotional distress that the victim suffered under rule 4.414(a)(4). This factor was supported by evidence that the victim had difficulty forming relationships as a result of the crime and that she was undergoing counseling to help her deal with the consequences of appellants acts.
The fact that appellant abused a position of trust when committing his crime was a proper factor under rule 4.414(a)(9). That factor was supported by evidence that appellant lived with the victim and her mother and thus occupied a trusted position in the family unit. Appellant abused that position of trust when he committed the crimes.
In sum, all three factors cited by the court were proper and each finds substantial support in the record. We conclude the court did not abuse its discretion when it declined to grant appellant probation.
Appellant contends the trial court erred because the court "appeared to ignore the favorable findings made by Dr. Vanoni in his section 288.1 report." This is simply incorrect. The court stated on the record that it had reviewed Dr. Vanonis report and an addendum thereto that the doctor prepared. While the court did not discuss Dr. Vanonis findings in detail, it was not obligated to do so. (See e.g., People v. Zamora (1991) 230 Cal.App.3d 1627, 1637 [the court may disregard mitigating factors without stating reasons].)
Appellant also contends the trial court erred because two of the factors it cited: the fact that the victim was vulnerable, and the fact that appellant abused a position of trust, were based on the same evidence—the young age of the victim and the parental relationship—and thus were in reality only one factor. Again we disagree. Both factors are set forth separately in the California Rules of Court. As we have explained, both are supported by different evidence that is contained in the record. Under these circumstances, we conclude the trial court did not err when it relied on both factors when denying probation.
III. DISPOSITION
The judgment is affirmed.
Simons, J., Gemello, J. We concur