Opinion
A129911
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. KLINTON MICHAEL KING, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. 921666)
Appellant Klinton Michael King pled guilty to two counts of lewd and lascivious conduct with a child under age 14. (Former Pen. Code, § 288, subd. (a) [Stats. 1998, ch. 925, § 2, pp. 6175-6178].) Sentenced to ten years in state prison consistent with the plea agreement, he appeals. King contends that the trial court (1) had no statutory authority to enter a no-contact order between him and his victim, who had turned 18 by the time of sentencing; (2) imposed a $300 fine that was only set at $200 at the time of the offense; and (3) erred by denying his request for probation at sentencing. We vacate the no-contact order and reduce the fine to $200; in all other respects, we affirm.
All statutory references are to the Penal Code, unless otherwise indicated.
I. FACTS
A.H. was born in December 1991. When she was 4 years old, it appears that her mother and appellant Klinton Michael King began living together, and he stepped into the role of step-father to the girl. A.H.'s mother was an alcoholic and the relationship between the two adults was stressful. In December 2009, A.H. turned 18 years old.
In January 2010, the Lake County Sheriff's Office received a report that King may have molested A.H. When A.H. was interviewed, she confirmed that she had been molested over a two-year period beginning when she was 12 years old. The molestation included genital touching, oral copulation, and both attempted and completed vaginal intercourse. The most serious incidents occurred when A.H.'s mother was incarcerated.
As there was no preliminary hearing or trial in this matter, we rely on the probation report's summary of the underlying offenses.
On February 2, 2010, a complaint was filed alleging that King had committed seven sexual offenses involving a single child under age 14. The complaint alleged that in October 2004, he committed three lewd and lascivious acts on a child under age 14. (Former § 288, subd. (a).) It also alleged that King committed a fourth lewd act, rape, oral copulation and sodomy against that child during the following year. (See §§ 261, subd. (a)(2), (6), 286, subd. (c)(1), 288, subd. (a), 288a, subd. (c)(1).) The following day, the trial court issued a criminal protective order, barring King from having any contact with A.H. (§ 136.2.)
Initially, King pled not guilty to all counts. In April 2010, he pled guilty to two counts of lewd and lascivious acts on a child alleged to have been committed in October 2004. (Former § 288, subd. (a).) In a written plea form, King pled guilty to these two charges. He acknowledged that he was subject to a maximum term of 10 years in state prison for them, that both were serious felonies, and that he would be required to register as a sex offender. He waived his right to a preliminary hearing. Citing sections 288.1 and 1203.067, he also stated his understanding that he would not be granted probation unless the court found at the time of sentencing that his was an unusual case in which the interests of justice would be best served by a grant of probation. On the People's motion, the remaining charges were dismissed.
These provisions require the trial court to obtain a psychiatric report and a diagnostic report from the Department of Corrections before granting probation to a person convicted of lewd conduct with a child under age 14. (§§ 288.1, 1203.067, subd. (a).)
King was referred for a diagnostic evaluation at the Department of Corrections. (§ 1203.03.) He was also evaluated by a court-appointed psychiatrist. (§ 288.1.) The trial court advised King that he would not be granted probation unless both of these reports were favorable. In his interviews with these evaluators, King denied committing the acts to which he pled guilty. During his evaluation by the Department of Corrections, King was found with several photographs of the victim and several letters from her, as well as a photograph of himself with a small girl lying on a couch together.
The Department of Corrections reporters characterized King as a risk to society and a poor candidate for probation. The evaluators recommended that King be sentenced to prison. A Ukiah psychiatrist concluded that because King failed to accept responsibility for the offenses he had admitted in his guilty plea, he remained at risk to reoffend and would not be amenable to treatment. The substantial nature of the sexual conduct and King's denial of his part in it prompted the psychiatrist to recommend against a grant of probation.
The probation report indicated that King was eligible for probation, but recommended that he be sentenced to state prison for eight years. The report proposed the imposition of various restitution, fees and fines, including a $300 sex offender fine. (§ 290.3.) A ban on contact with the victim was also recommended.
A.H.'s mother died in July 2010. At the August 2010 sentencing, King's counsel acknowledged that the Department of Corrections diagnostic evaluation was "very unfavorable." Still, King sought a grant of probation with A.H.'s support. The trial court agreed with the Department of Corrections, the psychiatrist, and the probation department that to grant King probation would be inappropriate. It cited numerous reasons for denying probation—the nature, seriousness and circumstances of the crime were more serious than other instances of the same offenses; the young age of the victim when the molestation began; the infliction of physical and emotional injury on the victim; King's active participation in the crimes; the taking advantage of a position of trust to commit the offenses; the taking advantage of the mother's absence to commit these crimes; and a poor ability to comply with reasonable terms of probation. The trial court also gauged the likely effect of imprisonment as moderate and found that King posed a substantial danger to others if not imprisoned.
King was sentenced to a total term of 10 years in state prison—an upper term of 8 years for one lewd act and a consecutive one-third upper term of 2 years for the second one. He was also ordered to pay a $300 fine as a sex offender. (§ 290.3.) The trial court prohibited any visitation between King and A.H. (§ 1202.05.) King sought a certificate of probable cause to enable him to challenge the underlying plea on appeal, but the trial court denied the request.
II. NO CONTACT ORDER
First, King contends that the trial court erred by entering a no-contact order between him and his victim, who had turned 18 by the time of sentencing. He reasons that the statutory requirement of a no-contact order applies only if the victim is under 18 at that time. When a defendant is sentenced to state prison for lewd conduct, the trial court must enter an order prohibiting any visitation between the defendant and the victim if that victim is under 18 years of age. (§ 1202.05, subd. (a).) By the time King was sentenced for his offenses in August 2010, A.H. was 18 years old. The Attorney General concedes error and asks us to vacate this order. As the law no longer provides statutory authorization for the no-visitation order, it must be vacated. (See § 1202.05, subd. (a).)
III. FINE
King also contends that the trial court violated the constitutional ban on ex post facto laws by imposing a $300 sex offender fine pursuant to section 290.3. A person convicted of lewd conduct with a minor is required to pay a sex offender fine. (§§ 290, subd. (c), 290.3, subd. (a).) Under the law in effect in 2010, the fine was set at $300. (§ 290.3, subd. (a) [Stats. 2008, ch. 699, § 9].) However, at the time of the 2004 offenses, the fine was only $200. (Former § 290.3, subd. (a) [Stats. 1995, ch. 91, § 121, pp. 346-348].) A fine must be determined based on the law in effect as of the date of the offense, in order to avoid running afoul of the constitutional ban on ex post facto laws. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248-1249; People v. Saelee (1995) 35 Cal.App.4th 27, 30-31; see U.S. Const., 8th Amend.) The Attorney General concedes error. As the trial court had no statutory authority to impose the higher fine, we order this fine to be reduced to $200. The trial court shall prepare a corrected abstract of judgment reflecting the correct fine imposed pursuant to section 290.3.
IV. PROBATION
A. Ex Post Facto
Finally, King seeks resentencing on two grounds. He first reasons that the trial court applied a statutory limitation on probation that had not been enacted at the time that he committed the charged offenses. He argues that this misapplication of statute violated the ban on ex post facto laws and requires a remand for reconsideration of his application for a grant of probation. At the time of sentencing, then-current statutory law banned a trial court from granting probation to those convicted of lewd conduct with a child if specified circumstances were pled, admitted or found true. (Former § 1203.066, subd. (a), (c)(1) [Stats. 2006, ch. 538, § 506].) The specified circumstances were not alleged in the King complaint, were not admitted in his guilty plea and were not the subject of trial court findings. Under the 2010 statute, if these specified circumstances were not pled or proven, one convicted of lewd conduct with a child could be granted probation only if certain conditions were shown—conditions that do not appear to apply in King's case. (Former § 1203.066, subd. (a), (c)(1), (d)(1) [Stats. 2006, ch. 538, § 506].) In 2004 when the lewd conduct occurred, the law contained a similar ban on probation under specified circumstances, but also contained specified limitations on probation if those circumstances were not pled, admitted or found true. (See former § 1203.066, subd. (a), (d) [Stats. 1997, ch. 817, § 13, pp. 5584-5587].)
On appeal, King reasons that the trial court applied the 2010 version of this law, which contained greater limits on its discretion than the law that was in effect at the time that he committed the lewd conduct in 2004. This application of law violates the ban on ex post facto laws, he contends. In order for him to prevail on this claim of error, he must establish that the trial court applied the 2010 version of this statute, rather than the 2004 version of it. On appeal, we must presume that the trial court applied the correct law. King must affirmatively demonstrate the error that he claims. (In re Julian R. (2009) 47 Cal.4th 487, 498-499; see Evid. Code, § 644.) He has not done so.
King notes that the psychiatrist referred to this provision in his report and that his counsel spoke of limitations to the possibility of probation at sentencing, rather than an outright ban on probation. He reasons that these comments both refer to the 2010 law rather than the 2004 version of section 1203.066, but it is significant that the trial court did not refer to either of them.
Instead, the record supports our assumption that the trial court applied the correct version of the law. The probation report stated that the offenses were committed in 2004. That report twice stated expressly to the trial court that King was statutorily eligible for probation. It recommended that King be sentenced to prison, rather than granted probation, for a long list of reasons related to his conduct, not any statutory limitation on the trial court's discretion. When the court cited its many reasons why probation was to be denied, it did so because it found a grant of probation to be inappropriate. In listing the factors that entered into its decision, it made no reference to section 1203.066 or any limitation of its discretion to grant probation. None of these circumstances suggest that the trial court applied the then-current version of section 1203.066. As King has not proven the factual predicate that the trial court applied the 2010 version of section 1203.066 rather than the 2004 version, his ex post facto claim necessarily fails.
B. Discretion
Alternatively, King asserts that a remand is required because the trial court was unaware of its discretion to grant him probation. Nothing in the record suggests that the trial court failed to exercised discretion to grant probation. At the time that King entered his guilty plea, it advised him that it would not grant him probation unless all of the assessors concluded that this was an appropriate sentence. Instead, all three evaluators concluded that a grant of probation was an inappropriate sentence. At sentencing, the trial court also found that probation was an inappropriate choice, not because it lacked discretion to grant probation, but for numerous and specific reasons related to King's lack of suitability. We are satisfied that the trial court was aware of its 2004 statutorily-specified discretion to grant probation, but chose not to exercise that discretion.
C. Reasonable Likelihood of Different Result
Even if the trial court had erred in some way at sentencing, a remand for resentencing would not be appropriate in this matter. Resentencing is not required when there is no reasonable likelihood of a different result on remand. (See People v. Avalos (1984) 37 Cal.3d 216, 233; see also People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1638-1640.) The record on appeal offers no suggestion that any reasonable judge would conclude that a grant of probation was an appropriate sentence for King—a man who preyed on an emotionally vulnerable child who looked up to him as a father figure; who denied any culpability for his actions despite his guilty plea; and who was sentenced to state prison consistent with his written plea agreement and the recommendations of the Department of Corrections diagnostic evaluation, a psychiatric evaluation, and the probation report.
The section 1202.05 order barring visitation between King and A.H. is vacated. The section 290.3 fine is reduced to $200. An amended abstract of judgment shall be prepared reflecting these corrections. In all other respects, the judgment is affirmed.
Reardon, J. We concur: Ruvolo, P. J. Rivera, J.