Opinion
F060109 Super. Ct. No. MCR018360
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. RENE PEREZ HURTADO, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
After finding that defendant Rene Perez Hurtado had violated the terms and conditions of probation, a trial court revoked probation and ordered execution of a previously imposed sentence of eight years in prison. On appeal, Hurtado contends that the trial court abused its discretion by not reinstating probation. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
On August 12, 2005, Hurtado entered a plea of no contest to one count of lewd acts with a child under the age of 14 in violation of Penal Code section 288, subdivision (a). The victim was Hurtado's foster daughter. Hurtado was granted probation for a period of five years with terms and conditions prescribed by the trial court. Among other conditions, Hurtado was ordered to report monthly or as directed to the probation officer, not to be in the presence of any minor children without appropriate adult supervision, and not to frequent any areas where children congregate. He was also required to register as a sex offender.
On January 26, 2007, the People filed a petition requesting revocation of probation based on the allegation that Hurtado was in the presence of a minor in violation of the terms and conditions of probation. On February 23, 2007, Hurtado admitted the allegation. The trial court imposed an eight-year suspended sentence and reinstated probation, to run from the original date of its imposition. Hurtado was also ordered to serve 90 days in county jail. The court advised Hurtado that, if he violated probation, he would receive eight years in prison.
On December 17, 2009, the People filed another petition requesting revocation of probation. It was alleged that Hurtado had violated three terms and conditions of probation by living in an area where he knew children resided and by failing to report for a scheduled office appointment with the Probation Department. Hurtado denied the allegations.
On April 9, 2010, a court trial was held on the petition. Deputy Probation Officer Francisco Rojas testified that Hurtado missed a monthly appointment on August 4, 2009. On September 29, 2009, Rojas went to Hurtado's home, a trailer located behind a main residence. Rojas saw at least three children who appeared to be under 12 years old; they were playing about 20 yards from Hurtado's front door. Hurtado explained that they were the grandchildren of his landlady, Janie Hill. Hill and her daughter (the mother of the children) told Rojas they were aware that Hurtado was not to have any contact with the children and that they had constant supervision. Hill indicated that the children visited but did not live on the property. Rojas reminded Hurtado that he was not supposed to have any contact with minors and, if any other children ever moved to that residence, he would have to move out.
On December 7, 2009, Hurtado had an office appointment with Rojas. Rojas asked if there were any children on the property where he lived, and Hurtado responded no. During a home visit on December 16, 2009, however, Rojas saw two toddlers walking from a mobile home located about 30 feet from Hurtado's trailer. Their mother, Maria Vargas, told Rojas that she had lived there for about two months. The children stayed with her during the day and stayed with their father at night. Vargas reported to Rojas that the landlady had told her to keep her children away from Hurtado. Hurtado later told Rojas that he knew Vargas had been living there for two months and knew the children were there. He did not think it was a problem because he was hardly ever at home.
Hill testified for Hurtado. Her property consisted of two large mobile homes and a small travel trailer on one acre. Hill observed Hurtado leave the trailer with his mother early in the morning almost on a daily basis, and she never saw him around children. Hurtado's mother, Felicita Moran, testified that she rented the trailer in which Hurtado lived, and Hill had assured her that no children were living on the premises. Hurtado was usually watching television or sleeping when he was in the trailer. Hurtado's daughter, Karysa, lived with him in the trailer. She was not aware of children living near their trailer. Karysa made sure Hurtado took his medications in the morning and at night. He also took insulin. She observed that the medications made him sleepy.
At the conclusion of the trial, the court found Hurtado in violation of the terms and conditions of probation. Hurtado did not testify at the trial, but in a supplemental probation officer's report and recommendation it was reported that he stated, "'The only thing I did wrong was sleep.'" Hurtado also reported that his health was deteriorating, his kidneys were failing, his diabetes had worsened, and he was under a doctor's care and taking medications. A psychological evaluation from 2005 reported that Hurtado had a mild stroke and suffered from irritable bowel syndrome.
On April 23, 2010, the trial court revoked Hurtado's probation and executed the sentence of eight years in prison (which had been imposed and suspended on Feb. 23, 2007). The court stated, "By way of circumstances in aggravation, the defendant took advantage of a position of trust as he committed a crime on a minor entrusted in his care. His prior record is viewed as increasing in severity. He was on misdemeanor probation at the time he committed the instant offense, and his prior performance on probation was unsatisfactory. There were no circumstances in mitigation cited. [¶] This is the second violation of probation for this defendant. The defendant states his position in this matter, in that his mistake was that he wanted to sleep."
DISCUSSION
Hurtado does not dispute that he was in violation of the terms and conditions of his probation. His only contention on appeal is that the trial court abused its discretion by executing the previously imposed sentence rather than reinstating probation again. Hurtado asserts that he has made good progress in counseling and is motivated to change, while his medical problems suggest that he is not a threat to the community and prison is not the appropriate place for him.
California Rules of Court, rule 4.414, provides criteria for the court to consider in deciding whether to grant or deny probation. "Facts relating to the crime include: [¶] (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime." (Cal. Rules of Court, rule 4.414(a).)
"Facts relating to the defendant include: [¶] (1) Prior 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; [¶] (2) Prior performance on probation or parole and present probation or parole status; [¶] (3) Willingness to comply with the terms of probation; [¶] (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [¶] (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others." (Cal. Rules of Court, rule 4.414(b).)
We review the decision of whether to reinstate probation for abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
Hurtado argues that certain factors suggest his probation should have been reinstated. For example, he did not use a weapon and the crime did not demonstrate sophistication or professionalism. (Cal. Rules of Court, rule 4.414(a)(2) & (8).) He also asserts that the victim was probably less vulnerable than other victims of this type of crime because she knew the identity of the perpetrator. (Id., subd. (a)(3).) This point is debatable, at best. Hurtado argues that the impact of his imprisonment on his family will be devastating. (Id., subd. (b)(5).) In addition, he claims that he is remorseful, although the record does not demonstrate remorse. (Id., subd. (b)(7).)
"However, even if there were several mitigating factors that might weigh in favor of probation, this does not necessarily mean that the trial court abused its discretion in deciding against granting probation." (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530-1531.) Here, the trial court considered, in relation to the crime, that Hurtado took advantage of a position of trust by committing the offense against a minor entrusted to his care. (Cal. Rules of Court, rule 4.414(a)(9).) In relation to Hurtado, the court considered that his prior record demonstrated increasingly serious criminal conduct, and he was on misdemeanor probation at the time he committed the offense. (Id., subd. (b)(1) & (2).) Further, Hurtado's performance on probation was unsatisfactory as he admitted a previous probation violation in 2007. (People v. Jones (1990) 224 Cal.App.3d 1309, 1316 [previous failures to comply with terms of probation provide sufficient reason not to grant probation again].) The court did not abuse its discretion by deciding not to reinstate probation.
Hurtado was convicted of receiving stolen property in 1989 and battery in 1996.
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Hurtado argues on appeal that there was most likely no other place he could realistically live because of his limited financial resources and the residency restrictions imposed on registered sex offenders. He points to no evidence in the record to support this claim, however. His mother, who rented his trailer, did not testify, for example, that she tried, but was unable, to find a new place for Hurtado to live after Vargas moved in, and Hurtado's counsel did not raise this issue at his sentencing hearing. Similarly, counsel did not argue at the sentencing hearing that Hurtado's medical condition was a reason to reinstate probation. We cannot say the court abused its discretion by not expressly considering circumstances that were not brought to its attention at the time of sentencing.
DISPOSITION
The judgment is affirmed.