Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF137195, Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.).
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Michael Murphy and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Andrew Kwasi Donkor appeals after he was convicted of various sex offenses. Defendant contends that the trial court abused its discretion in denying probation. He also contends that he should be awarded conduct credits at a more favorable rate for the period of time he was in custody before January 25, 2010, the effective date of amendments to the presentence custody credit statute. We conclude that the contentions are without merit, and we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant, age 35, struck up a relationship with the victim on a social networking website. The victim’s website profile said she was 20 years old; in fact she was 15 years old. Defendant telephoned the victim, telling her that he was 17 years old; she then allegedly told him that she was 18 years old. When they met in person, defendant told the victim that he was 20 years old. The victim knew from his appearance that defendant was more than 20 years old.
Defendant and the victim began a sexual relationship after she turned age 15. After defendant and the victim had been in a relationship for about two months, defendant found out from the victim’s mother that the victim was only 15 years old. Nevertheless, defendant continued to call at the victim’s home, even after the mother asked him not to, saying her daughter was too young. Defendant continued to have sex with the victim even after he found out that she was only 15 years old.
Defendant and the victim were discovered by police having sex in the back of defendant’s car in a parking structure. Defendant readily told police that the victim had been his girlfriend for several months, and that he knew she was only 15 years old. The victim also told police that she and defendant had sex “every week.”
Defendant was arrested. The victim was taken for a medical examination; it was discovered that the victim was pregnant. Further tests indicated that defendant was the father of the fetus.
Defendant was charged by information with three counts of having sexual intercourse with a person under age 16 while being over the age of 21 (counts 1-3; Pen. Code, § 261.5, subd. (d)), and three counts of performing a lewd act on the body of a person under age 16, while being at least 10 years older (counts 4-6; § 288, subd. (c)(1)). At trial, an allegation that defendant inflicted great bodily injury on the victim was dismissed. A jury found defendant guilty on all counts.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court denied probation and sentenced defendant to the low term of two years in state prison on count 1, with concurrent terms of two years each on counts 2 and 3. The court stayed sentences on counts 4, 5 and 6, pursuant to section 654.
Defendant has filed an appeal, contending both that the trial court erred in denying probation, and that defendant should have been awarded enhanced presentence custody credits under section 4019.
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion in Denying Probation
At the sentencing hearing, the court initially announced its intention to grant probation, and was on the point of pronouncing sentence granting probation, when the prosecutor complained, “Your Honor, it may do no good for me to say this now, but if a 35-year-old... having sex with a 15-year-old doesn’t go to prison, then when does anyone ever get two, three, or four years? Who if not him?” The court responded that in its view prison would be warranted, “When there is some predator nature to the offense.” The prosecutor protested that there was evidence of defendant’s predatory intent because defendant sought out the victim on the internet, and had also found “many other girls.”
The court allowed the sentencing hearing to be reopened to present evidence that defendant’s participation at the social networking internet site involved contacts with numerous young women, many of whom purported to be underage. Officer Placentia testified that defendant’s profile at the social networking website listed 82 “friends.” Of these 82, 32 listed their own profile ages as under age 18. Another 20 listed their ages as 18; thus, 52 of the 82 listed “friends” were nominally indicated to be age 18 or younger. The vast majority of these 52 profiles self-identified as women. A number of the screen names of the participants, including some who identified as under 18, were sexually-themed, such as “Sexy Mama, ” “Ms. 100 Percent Sexy, ” “Kinky Virgin, ” and similar names.
Defendant listed his own profile age as 21, when he was in fact much older. The victim’s profile had listed her age as 18 or 21, although she was in fact much younger. On cross-examination, Officer Placentia admitted that he did not know the true names or ages of the persons included on defendant’s profile page. He had not contacted any of them. He also knew that people commonly use names other than their true names on such social networking websites, and that people lie about their age on such websites.
The People argued that defendant’s conduct on the website indicated a predatory intent. Defendant was linked primarily to young women, who purported to be much younger than him. He purposely understated his own age; a “common sense view of this [was that defendant] said he was younger so he could meet these younger girls.... [I]t shows that he is actively pursuing these young girls and making friends with them and holding himself out to be younger so he can effectuate that purpose.”
Defense counsel argued, “We don’t know the actual ages of these people. We don’t know... how it ended up that they were friends on each other’s pages. We don’t know anything about whether there was any relation between him and these people. What we do know is that [the victim] advertised herself as 18 at the time.... [¶] And we know that [defendant]... was listed as 21.... [T]he officer didn’t do any research as to why people use those ages on those websites.... [W]e don’t know what the reasons are.”
After this presentation and argument, the court reconsidered the matter of sentence, revising its initial opinion: “[A]s I said initially, I have been torn with this case as to what the appropriate sentence is. And it seems clear that [the prosecutor] is correct that [defendant] is more a predator than... I gave him credit for. I’m going to go ahead and send him to state prison for the lower term [of two years].” The court denied probation and proceeded to sentence defendant to the mitigated term of two years on each unstayed count.
Defendant urges that the trial court abused its discretion in denying probation; the court apparently changed its mind about granting probation because of Officer Placentia’s testimony about defendant’s website profile, but the evidence that defendant was “predatory” was speculative at best, and not based on evidence or knowledge of defendant’s actual conduct. “Reliance on ‘information’ from a social networking site constituted an abuse of discretion because this was pure speculation. There was no actual evidence any of these ‘friends’ were minors or that [defendant] had interacted with them in any manner whatsoever.”
Defendant has identified the proper standard of review. “The trial court enjoys broad discretion in determining whether a defendant is suitable for probation.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1256.) Thus, a decision denying probation will be reversed only on a showing of abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.) To establish abuse, the defendant must show that, under the circumstances, the denial of probation was arbitrary or capricious. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
The relevant factors for consideration include facts relating to the crime (such as nature and seriousness of the crime, vulnerability of the victim, whether the defendant inflicted physical or emotional harm, whether the defendant caused monetary loss, whether the defendant was an active or passive participant, whether the crime involved great provocation, etc.) and facts relating to the defendant (such as prior record, willingness and ability to comply with terms of probation, the defendant’s background, effect of imprisonment on the defendant’s dependents, if any, whether the defendant is remorseful, whether the defendant will be a danger to others if not imprisoned, etc.).
Evidence as to some of the salient factors indicated that the crime was not violent, defendant did not have an extensive record, defendant was willing to comply with the terms of probation, and, based on a profiling evaluation, defendant purportedly represented a low risk of reoffending. On the other hand, the crime was very serious, yet defendant had no conception of its gravity. He accepted no responsibility for his actions, and continued to blame others and minimize the seriousness of the offense.
For example, when he was arrested, defendant claimed he had just met the victim and denied having sex with her. Then he admitted that he had known her for seven months and had engaged in an ongoing sexual relationship with her. After conviction, defendant told probation officers he had “‘moved on, but people keep bringing it up.’” He claimed “‘Nothing was innocent”” about the victim, and tended to cast himself in the role of victim. When asked what he had learned about himself as a result of the case, he stated he had learned more about computers. He claimed he had “‘just got caught up in this, ’” rather than accepting responsibility for his role as the adult in the relationship. Defendant did not appear to be aware of any problem with his relationship with the 15-year-old victim; manifestly, he continued having sex with the victim, long after he had discovered her true age of 15. He appeared to claim at the sentencing hearing that the DNA evidence had been tampered with, and complained that police officers had lied about him, yet they were not being tried. In each instance, defendant excused, minimized or justified his own behavior, while accusing others of misdeeds and blaming them for his predicament.
Defendant urges that the trial court was initially ready to grant probation, and in fact was on the point of doing so, but changed its mind based solely on its determination that defendant’s conduct or character was more predatory than it had previously realized; that determination, in turn, was based solely on Officer Placentia’s evidence concerning the profiles of defendant’s “friends” at the social networking site. Officer Placentia admitted that he had done no investigation into the actual sex or age of defendant’s internet “friends, ” nor investigated whether defendant had had any actual contact or communication with them, aside from the status as “friends.” Thus, defendant urges that there was no evidence to support a finding that defendant’s conduct was predatory, and the trial court’s denial of probation was therefore arbitrary.
Despite the lack of specific evidence of the actual sex or age of any of the other website members, however, the testimony did provide a basis for the court to reconsider its assessment of the gravity of defendant’s conduct. First, defendant lied about his age, portraying himself as much younger than his real age. Logically, he did so to make himself more attractive to other members of the website. He did not merely limit himself to communications on the website, but he initiated real-life contact both telephonically and then in person with another member (the victim). He progressed immediately to an intimate sexual relationship with her, which supports the inference that that was his purpose in participating at the website. That finding was further bolstered by members’ common use of profile nicknames laden with sexual innuendo. The clear implication is that many members, including defendant, commonly use the website for prurient purposes, including making real-life sexual assignations. Defendant also knew, relatively quickly, that the victim had likewise lied about her age, and that she was in fact legally a minor. Defendant did not care, and continued an intimate sexual relationship with her, despite discovering that she was only 15 years old, and despite the opposition of the victim’s mother. The facts presented lead to a reasonable assessment that defendant participated in the site for the purpose of seeking out young girls with whom to have sex, and it did not matter to him that his sexual partner, whomever she might be, was both under legal age and substantially younger than himself. In other words, the evidence was more than sufficient to support a finding that defendant’s participation in the social networking website was predatory in intent and effect.
In any case, even without considering Officer Placentia’s evidence, the trial court would have been well within its discretion to deny probation to defendant. Defendant had absolutely no concept of the gravity of his conduct. Even at the sentencing stage, he did not appear to see anything wrong with his having a sexual relationship with a 15-year-old girl. He refused to accept responsibility for his own conduct. He expressed no remorse, but instead accused the police of lying and falsifying evidence. He adamantly refused to express remorse at the sentencing hearing because those present were “not the person that this happened to.” Despite defendant’s profiling evaluation as a low risk of reoffending, that evaluation is exceedingly questionable. Defendant showed himself consistently to manipulate, to lie, to deny, to displace, or to do anything else to avoid the consequences of and responsibility for his own behavior. Defendant’s manipulative, unremorseful and defiant attitudes and behaviors indicate that he remains a high risk for reoffending. He baldly refuses to admit that he did anything at all, even in the face of incontrovertible evidence: the police caught him in flagrante delicto, having sex with the victim in the parking structure, and DNA testing of the victim’s fetus confirmed that defendant was the father (i.e., he had previously had sex with her). He further refuses to admit, even hypothetically, that what he did was wrong.
“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185, superseded by statute on a different point, as noted in People v. Leung (1992) 5 Cal.App.4th 482, 503-504.) A consideration of all the facts and circumstances here supports a denial of probation; even if the court had not heard and considered Officer Placentia’s evidence concerning the social networking website, most of the salient factors militated against a grant of probation. The crime was very serious, the victim was vulnerable, defendant was a very active (the primary) participant, and he acted under no provocation. Defendant may have been willing to comply with the terms of probation, but he was in deep denial about the nature of the offense and did not perceive his conduct as wrong. Defendant was absolutely unremorseful, and displayed no insight into his conduct so as to avoid reoffending; his entire course of conduct throughout the events and trial showed him to be defiant, unrepentant, and uncommitted to conforming his behavior to the requirements of the law. He consistently did whatever he could to avoid taking any responsibility for his legal obligations, and thus remained an unmitigated danger if not incarcerated. Consequently, defendant cannot show any abuse of discretion or prejudice from the court’s denial of probation.
II. Defendant Is Not Entitled to Additional Conduct Credits Under Section 4019 as Amended
The crimes here took place in 2007. Defendant served 18 days in jail before being released in July 2007. He was convicted in October 2009 and sentenced in November 2009. The trial court awarded defendant 18 days of credit for time served, plus 8 days of conduct credits, for a total of 26 days. In August 2010, while defendant’s appeal was still pending, appellate counsel moved to correct defendant’s presentence custody credits so that he would receive the benefit of the amended provisions of section 4019. Section 4019, as amended effective January 25, 2010, changed the calculation of presentence custody credits from a two-for-four (two days credit for each increment of four days served) to a two-for-two (two days of credit for each increment of two days served) ratio. Appellate defense counsel urged that defendant was thus entitled to a full 18 days of presentence conduct credits. The trial court held that the amendments to section 4019 were prospective only, and that defendant was therefore not entitled to additional credit.
The original computation of defendant’s local conduct credits complied with former section 4019, subdivision (f), which provided that “a term of six days will be deemed to have been served for every four days spent in actual custody.” The language of former section 4019 has thus been construed to mean, a “total of two days of conduct credit [applied to] every four-day period of incarceration.” (People v. Dieck (2009) 46 Cal.4th 934, 939.)
As of January 25, 2010, the Legislature amended former section 4019, subdivision (f), so that, except for crimes not involved here, “a term of four days will be deemed to have been served for every two days spent in actual custody.” (§ 4019, subds. (b) & (c), amended by Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50, pp. 4427-4428; Sen. Bill No. 18 (2009-2010 3d Ex. Sess.) § 50.) The amendment does not include a savings clause.
If the amendment to section 4019 applies, defendant should have been awarded 36 days of total presentence credit, for 18 days of actual custody and 18 days of local conduct credit. The trial court declined to award the additional credit. Here, of course, defendant was convicted and sentenced before the effective date of section 4019, subdivision (f), as amended, but his appeal was pending and therefore judgment was not yet final. The issue is therefore whether the amendment to section 4019 is retroactive.
Numerous published opinions have already ruled on this issue, and it will be resolved by the California Supreme Court. A number of published decisions have held that the statutory amendment is retroactive under In re Estrada (1965) 63 Cal.2d 740, because it is an amendatory statute that mitigates punishment. This court has previously held that the amendment of section 4019 does not apply retroactively. (People v. Otubuah (2010) 184 Cal.App.4th 422, 436 [Fourth Dist., Div. Two] review granted July 21, 2010, S184314.) Consistent with the previous decisions of this court on the issue, we conclude here that defendant is not entitled to the benefit of the amendment. We therefore affirm the trial court’s order, declining to award additional presentence local conduct credit.
DISPOSITION
The judgment is affirmed. The trial court did not abuse its discretion in denying probation, and sentencing defendant to state prison. We also conclude that the trial court properly denied defendant’s application for additional presentence credits.
We concur: RAMIREZ, P.J., KING, J.