Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF010474, Richard Todd Fields, Judge. Affirmed.
David P. Lampkin, 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, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Hollenhorst Acting P.J.
In a prior appeal in this matter, we remanded this case for resentencing (People v. Harral, case No. E042918). Defendant Joe Golman Harral appeals from judgment entered following resentencing. He argues this case must be remanded again for resentencing because the supplemental probation report, relied on by the trial court in resentencing defendant, was inadequate. Defendant argues the supplemental report failed to inform the court of any relevant current information necessary for an informed determination as to whether to place defendant on probation, rather than incarcerating him.
We conclude defendant forfeited his objection to the supplemental probation report and, even if not forfeited, we reject defendant’s objection on the merits. Although there is no reference in the updated probation report to any recent statements by the victims or their parents, this does not require resentencing defendant. The judgment is affirmed.
1. Factual and Procedural Background
A jury convicted defendant of five counts of child molestation, committed against two of his granddaughters while defendant was babysitting the girls. (Pen. Code, § 288, subd. (a).) The offenses were committed from January 2000 through November 2004. The molestation offenses alleged in counts 1 and 2 involved Granddaughter 1 and counts 3, 4, and 5 involved Granddaughter 2. The jury also found true that the One Strike law (§ 667.61, subd. (e)(5)) applied because defendant committed child molestation against more than one victim. In April 2007, the court sentenced defendant under the One Strike law to an indeterminate prison term of 30 years to life.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant argued in his first appeal that the case should be remanded for resentencing because the trial court sentenced him under the current sentencing statutes, rather than under the former One Strike law (§ 667.61) and former probation eligibility provision (§ 1203.066, subd. (c)) in effect when defendant committed the charged offenses. As a consequence, defendant’s sentence constituted an ex post facto violation. We agreed, as did the People. As a consequence, we affirmed the judgment of conviction, but vacated defendant’s sentence and remanded the case for resentencing.
Reference in this opinion to the “former One Strike law” and “former section 667.61” is to the One Strike law, section 667.61, in effect from January 2001 through November 2004.
Section 1203.066, subdivision (c) is referred to in this opinion as section 1203.066(c). Reference to “former section 1203.066(c)” refers to the version of section 1203.066(c) in effect from January 2001 through November 2004.
In December 2008, the trial court conducted a hearing on remittitur, during which the court referred the matter to the probation department for an updated presentencing report. The court explained to counsel and stated in its minute order that the matter was remanded for resentencing because, under the law in effect at the time the offenses were committed, defendant may have been eligible for probation under former section 1203.066(c), if the court found true all five factors specified in former section 1203.066(c).
The five requisite factors are the following: “(1) The defendant is the victim’s natural parent, adoptive parent, stepparent, relative, or is a member of the victim’s household who has lived in the victim's household. [¶] (2) A grant of probation to the defendant is in the best interest of the child. [¶] (3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence. [¶] (4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim.... [¶] (5) There is no threat of physical harm to the child victim if probation is granted.” (Former § 1203.066(c).)
In furtherance of resentencing under former section 1203.066(c), in January 2009 the court granted defendant’s motion for a psychological evaluation of defendant. Court-appointed psychologist, Dr. Rath, interviewed and evaluated defendant on February 7, 2009. His report, filed with the court, addressed whether defendant was a pedophile and whether he was a danger to the community or the victims. It also addressed his status under the five factors specified in section 1203.066(c). Dr. Rath noted that defendant told him his daughter, the mother of one of the victims, continued to be distant from him and had not had contact with him recently. Defendant said she was particularly angry with him. Defendant also indicated that he would not be seeing “his biological granddaughter, ” who was a victim, until she was an adult because “they all ‘need time to heal.’”
Dr. Rath concluded in his report that defendant was not a pedophile but should not be left alone with any of his grandchildren. Dr. Rath further concluded that defendant was “psychologically eligible for probation” if the court felt he had been punished sufficiently for his offenses.
Defendant was resentenced on March 27, 2009, to 30 years to life in state prison. (§ 667.61, subd. (b).) The court found defendant was not entitled to probation under former section 1203.066(c) due to there being no evidence that granting defendant probation was in the best interests of the victims.
2. Forfeiture of Defendant’s Objection to the Supplemental Probation Report
Defendant argues that he did not forfeit his objection to the supplemental probation report. He claims he preserved the issue on appeal by defense counsel stating during the resentencing hearing the following: “Now, paragraph 2 [of former section 1203.066(c)] is the – the sticky one, for lack of a better term, that being that the grant of probation is in the best interest of the child. Now, the Court is relying upon the probation officer’s report, which appears to be relying on statements made two years ago by the parents of the children. And with all due respect to the families, I guess I would just note that we don’t really know what the children are thinking or feeling at this point with respect to their grandfather currently – at the present time. And I would just throw that out there for the Court to consider.”
This comment by defense counsel did not constitute an objection to the supplemental probation report sufficient to preserve the issue on appeal. Defense counsel did not argue that the report was deficient for purposes of resentencing defendant nor did defense counsel request that current information, such as recent statements by the victims and their parents, was required. It was thus assumed the supplemental report was sufficient for purposes of resentencing. Defendant cannot now complain that the report was deficient.
Generally, an appellant forfeits claims of error through inaction that prevents the trial court from avoiding or curing the error. (People v. De Soto (1997) 54 Cal.App.4th 1, 8; People v. Scott (1994) 9 Cal.4th 331, 356.) This court will not reverse erroneous rulings that could have been, but were not, challenged below. (Scott, supra, at p. 356.) As stated in De Soto, “A defendant cannot for the first time on appeal challenge the manner in which the sentencing judge exercises discretion in making sentencing choices or articulates his or her supporting reasons.” (People v. De Soto, supra, at p. 4, citing People v. Scott, supra, at p. 356.)
Here, defendant complains for the first time on appeal that the trial court erred in rejecting probation based on an inadequate supplemental probation report. Defendant argues, however, that no objection was required to preserve his contention that the supplemental probation report was deficient since the supplemental report, in effect, was not an updated report. Citing People v. Dobbins (2005) 127 Cal.App.4th 176, 178 (Dobbins), defendant asserts that, because, in effect, the trial court did not receive any supplemental report at all, in violation of section 1203.2, subdivision (b), defendant was not required to preserve his objection in the trial court. (Dobbins, supra, at p. 178.) We disagree.
The instant case is distinguishable from Dobbins, supra, 127 Cal.App.4th 176, since the trial court in the instant case ordered the probation department to submit a supplemental, updated probation report, which at the time of resentencing, the trial court considered, along with a Static-99 risk assessment report and a recent psychological evaluation report. The issue in the instant case is whether the supplemental probation report was inadequate because it made no reference to updated statements by the victims and their parents. Defendant was thus required to raise his objection to the supplemental report in the trial court during sentencing. Since defendant failed to do so, he forfeited the objection.
But even if the issue were deemed to have been preserved on appeal, we would nevertheless be compelled to reject it for the reasons stated below.
3. Adequacy of Supplemental Probation Report
Statutory authority and the California Rules of Court specify the circumstances under which the trial court must prepare a supplemental or updated probation report. Section 1203.2, subdivision (b), requires the trial court to order a probation report before judgment is pronounced, for persons convicted of a felony, who are eligible for probation. California Rules of Court, rule 4.411(c) provides: “The court shall order a supplemental probation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared.” Here, an updated or supplemental report was needed at resentencing in March 2009, because a significant time had passed since the original report was prepared in March 2007.
As noted in People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274 (Tatlis), “fundamental fairness requires that sentencing decisions be based upon the court’s informed discretion.” In Tatlis, the court vacated the defendant’s sentence imposed during a resentencing hearing, and remanded the matter for another resentencing on the ground the trial court abused its discretion in denying the defendant’s request for an updated probation report. (Id. at pp. 1274-1275.) The Tatlis court did not consider the issue raised in the instant case of whether the supplemental probation report was inadequate due to not including updated statements by the victims and their parents.
Citing People v. Rojas (1962) 57 Cal.2d 676 (Rojas), defendant argues that, although there was a supplemental report, it contained no new information, except as to local custody credits, and therefore was the functional equivalent of an old report. This constituted noncompliance with the statutory requirement mandating an updated report when resentencing defendant. (§ 1203, subd. (b)(1); Cal. Rules of Court, rule 4.411(c).)
As in Tatlis, supra, 230 Cal.App.3d 1266, in Rojas, supra, 57 Cal.2d 676, the trial court failed to obtain and consider a supplemental probation report. (Id. at p. 682.) The California Supreme Courtin Rojas therefore remanded the matter with directions that the trial court order an updated probation report to be considered by the trial court upon resentencing. (Id. at p. 683.) The Rojas court explained that requiring current investigations and reports furthered the overall purpose and objectives of probation: “It is thus apparent that by its express language and the purpose of affording to only a ‘seemingly deserving defendant’ an opportunity for reformation and rehabilitation without the walls of prisons, the Legislature intended that the trial court make its determination by availing to itself current probation reports.” (Ibid.)
Unlike in Tatlis, supra, 230 Cal.App.3d 1266, and Rojas, supra, 57 Cal.2d 676, here, the trial court ordered and considered, prior to resentencing defendant, an updated probation report and Static-99 risk assessment report, as well as a psychological evaluation report, which was based on a recent evaluation of defendant. The issue in the instant case is whether the supplemental probation report was inadequate because it did not provide sufficient current information. We recognize that the supplemental report did not include any updated statements by the victims or their parents. Nevertheless this was not a fatal flaw requiring reversal, remand, and resentencing.
During the resentencing hearing in March 2009, the trial court stated that it had read and considered the original probation report, the supplemental probation report, which was filed with a recent Static-99 risk assessment report, and a psychological evaluation report. The court also reviewed a letter submitted by defense counsel, from a counseling center, discussing a counseling program for sexual offenders.
The original probation report prepared in March 2007, contained statements from the victims and their parents indicating that placing defendant on probation, rather than incarcerating him, was clearly not in the victims’ best interests. According to the statements, defendant’s acts of molesting his granddaughters had not only traumatized the victims, but had also torn apart their family, with the victims’ parents divorcing.
While the supplemental report did not include any recent statements from the victims or parents, it did provide a discussion of the five factors determinative of whether defendant qualified for probation under former section 1203.066(c). Although the supplemental report was based in part on the victims’ and their parents’ statements made several years earlier, the nature of the statements and circumstances, in conjunction with updated information from defendant provided during his recent psychological evaluation, was sufficient to satisfy the fundamental fairness requirement that sentencing decisions be based upon the court’s informed discretion. (Tatlis, supra, 230 Cal.App.3d at p. 1274.)
We conclude there was sufficient updated information from which the trial court could make a well-informed determination as to whether placing defendant on probation was in the best interests of the victims. The trial court could reasonably infer from the statements made in the original and supplemental probation reports, Static-99 risk assessment report, and the psychological evaluation report, that defendant remained estranged from the victims and their parents, and it was highly unlikely that much had changed in this regard. Defendant had the burden of proving the five factors required for imposing probation (former section 1203.066(c)) (People v. Lammey (1989) 216 Cal.App.3d 92, 98 (Lammey)). He failed to meet that burden of establishing the second factor by not providing any evidence whatsoever showing that probation was in the victims’ best interests.
As noted in Lammey “‘In enacting section 1203.066 it appears that the Legislature intended that state prison be the sentencing norm in child molestation cases, meeting the criteria in subdivision (a), and that the defendant bear the burden of persuading the court to depart from that norm by granting probation.’” (Lammey, supra, 216 Cal.App.3d 92, 98, quoting People v. McLaughlin (1988) 203 Cal.App.3d 1037, 1039.) Here, defendant presented no evidence that granting defendant probation was in the victims’ best interests (former section 1203.066(c)(2)). Thus appellant failed to carry his burden of persuading the court to grant probation.
4. Disposition
The judgment is affirmed.
We concur: McKinster J., Miller J.