Opinion
A150989
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO KNIGHT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-15-83370-A)
Following a bench trial, defendant Alfredo Knight was found guilty of sexual battery by restraint (Pen. Code, § 243.4, subd. (a)), and lewd or lascivious conduct with a minor § 288, subd. (a)). He was sentenced to a total term of four years in state prison. He appeals from the judgment, arguing (1) his jury trial waiver was invalid, (2) the trial court did not have jurisdiction over the sexual battery charge because defendant and the victim are Native Americans and the crime occurred on an Indian reservation, (3) the evidence was insufficient to support his conviction for sexual battery by restraint, and (4) he is entitled to a new sentencing hearing. We affirm.
All further statutory references are to the Penal Code except as otherwise indicated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In December 2015, defendant was charged by information with lewd or lascivious acts with a child under 14 years with force (§ 288, subd. (b)(1); count one), sexual battery by restraint (§ 243.4, subd. (a); count two), and lewd or lascivious acts with a child under 14 years (§ 288, subd. (a); count three). I. The People's Case
A.W. lives in a small town in northern California. She lives next door to A.A.'s family. A.A. is her cousin. Defendant also lived on the same road and is another of A.W.'s cousins. A.A. has a daughter named Jane Doe 1, who is an adult but is mentally disabled, having the mental capacity of a child. Jane Doe 1 is able to say "hi," and can walk and go inside and outside of the house on her own. If the weather is good, Jane Doe 1 will usually sit on the bench of a plastic children's picnic table that is located in the front yard of the family's home. The family always has someone with her, so she is never home alone.
On March 12, 2015, A.W. noticed that Jane Doe 1 was sitting outside of her home. She saw defendant walk diagonally across her yard in front of her house. About 30 or 40 minutes later, he walked back across her yard very close to her house, heading towards Jane Doe 1's house. A.W. thought this was " 'weird.' " A.W. had heard rumors of defendant molesting his own daughter and other family members in the past. She had never seen defendant interact with Jane Doe 1 before. A.W. ran to her window and looked out.
Jane Doe1 was sitting on the picnic bench, facing towards the street. A.W. ran out of her house to get a full view of defendant. She saw defendant with his knees bent and his right hand down Jane Doe 1's pants. Jane Doe 1 was wearing sweat pants and a baggy T-shirt, and her T-shirt was lifted up. A.W. started screaming at him to get away from Jane Doe 1. Defendant said "what?" and indicated that he was just helping Jane Doe 1 get up. Prior to this point, A.W. had not seen Jane Doe 1 on the ground and did not hear her calling out or seeming to be in distress. Eventually, defendant left the property. Subsequently, A.W. contacted the sheriff and tribal police, and also told Jane Doe 1's father what had happened.
S.T., Jane Doe 1's father, has physical disabilities from a prior car accident. On the day of the incident, S.T. was inside the house while Jane Doe 1 was sitting outside. He would check on her from time to time. He testified that he had never seen Jane Doe 1 fall on the ground while he was watching her and did not see her fall that day. He did not hear Jane Doe 1 call for help, but he did hear A.W.'s screams. He then looked out of the window and saw Jane Doe 1 with defendant. Defendant was grabbing Jane Doe 1 around her hip area and was touching her clothes.
Sergeant Dygert of the Mendocino County Sheriff's Office responded to a call and spoke with A.W., S.T., and defendant. He recorded an interview with defendant that was played in court. During the interview, defendant stated that he saw Jane Doe 1 lying on the ground and he grabbed her leg in her crotch area while trying to pull her up. He grabbed her there because she was "squirmin' all the time" and he could not get a good hold of her. When he sat her down, his hand was stuck under her leg because she had been "twirlin' her arms." Dygert described Jane Doe 1 as being about five feet tall and weighing under 150 pounds. Jane Doe 1 did not verbally engage with Dygert.
Sheila S. also lives on the same road, in the house next to A.W.'s house on the other side from S.T.'s house. On one occasion, about a month before the incident at issue in this case, she was sitting in a chair in front of her house and she saw Jane Doe 1 sitting on a play horse in front of S.T.'s house. Sheila S. stood up and saw a man. The man was masturbating. When he saw her, he turned to the right and she recognized him as defendant. She reported the incident to a tribal member. She also told A.W. and Jane Doe 1's mother that they should keep their children inside.
A.A. is Jane Doe 1's mother. She testified that Jane Doe 1 is 22 or 23 years old and has the mental capacity of a one-year-old child. Jane Doe 1 can walk and open doors and get around the house easily. She likes to sit out in front of the house. She does not fall often, and when she does fall she knows how to get up. About twice a year Jane Doe 1 will fall when she goes down the step to exit the house. A.A. usually dresses Jane Doe 1 in T-shirts and stretchy pants with ties, akin to sweat pants or jogging pants. Jane Doe 1 also wears adult diapers. Defendant is A.A.'s cousin. A.A. received a phone call from her other daughter following the incident involving defendant and Jane Doe 1. Prior to that she had never seen defendant have contact with Jane Doe 1.
Because defendant does not challenge the factual basis underlying his conviction on count three, a brief recitation of the facts underlying that conviction will suffice. After the incident with Jane Doe 1, defendant was asked to leave the reservation. N.S., who had known defendant for many years, agreed to allow defendant and his grandson to live in her home with her family. Her daughter, Jane Doe 2, who was six years old at the time of trial, testified that defendant had entered a bedroom where she was watching television. Her pants and underwear had "slipped." Defendant touched her vagina with his hand while she was lying on her stomach on the bed. Defendant and his grandson left the home the next day and did not return. N.S. reported Jane Doe 2's allegations to law enforcement. II. Defendant's Case
Defendant testified on his own behalf. He stated that he had seen Jane Doe 1 lying on her stomach before he approached her. She was vocalizing and reaching out to him. He helped her up by putting his hand on the inside of her thigh, on the outside of her clothes. His hand did not go inside her adult diaper or touch her skin. He put his right hand in between her legs to grip her around her inner thigh and had his other hand on her back, in an attempt to lift her up to a seating position. She was squirming while he was doing this, including kicking her legs and grabbing at him. When she was seated, Jane Doe 1 pulled on his arm so it was hard for him to remove his hand from between her legs. He never put his hands inside Jane Doe 1's sweatpants.
Defendant denied having masturbated as described by Sheila S. He said he was taking a nap in a two-seated rocker by his house and woke up to see Jane Doe 1 lying on the ground on her stomach. He thought she was hurt because she was making an intense sound. He got up and started walking towards her when he began to feel ant bites in his pants, so he started "slapping myself down there." He did not pull his pants down to brush off the ants until he had turned around and walked into his own back yard. III. Trial Court's Verdict and Sentencing
On January 18, 2017, the trial court found defendant guilty of the offenses charged in counts two and three. The court found him not guilty of the offense charged in count one. He was sentenced to a total of four years in state prison. This appeal followed.
DISCUSSION
I. Right to Jury Trial
Defendant contends his convictions should be reversed because his jury trial waiver did not satisfy the applicable constitutional requirements.
The right to trial by jury in criminal cases is guaranteed by the Sixth Amendment of the United States Constitution and article I, section 16 of the California Constitution. (Duncan v. Louisiana (1968) 391 U.S. 145, 149; People v. Ernst (1994) 8 Cal.4th 441, 444-445.) The right is considered "fundamental to the American scheme of justice" (Duncan v. Louisiana, at p. 149), and the denial of the right is a structural error that requires the judgment be set aside (People v. Ernst, pp. 448-449; People v. Cahill (1993) 5 Cal.4th 478, 501).
A defendant can expressly waive his or her right to trial by jury. (Cal. Const., art. I, § 16; see People v. Sivongxxay (2017) 3 Cal.5th 151, 166; People v. Holmes (1960) 54 Cal.2d 442, 443-444.) To be valid, the waiver must be "knowing and intelligent, that is, ' " 'made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,' " ' as well as voluntary ' " 'in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.' " ' " (People v. Collins (2001) 26 Cal.4th 297, 305.) Whether a waiver is valid depends upon the totality of the circumstances. (People v. Sivongxxay, at pp. 166- 167; see Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 278 [validity of waiver depends "upon the unique circumstances of each case"].)
On December 2, 2016, Judge Behnke noted on the record that he had received a memorandum from Judge Moorman indicating there was likely to be a jury trial waiver in the case. Defense counsel stated there had been "a fairly lengthy discussion with Judge in chambers," and "I indicated that my client was likely to waive. [Defendant] communicated to me that he is prepared to waive a jury. He has rejected an offer that was conveyed to him and so we'd like to start on Wednesday, but if the Court could take the personal waiver of Mr. Knight. As I indicated, he's prepared—." Whereupon the following colloquy occurred:
"THE COURT: I will. So Mr. Knight, if you waive your right to a jury trial, then this is going to be heard next Wednesday before Judge Moorman as a court trial. Do you understand that"
"THE DEFENDANT: Yes.
"THE COURT: Do you understand that you have a right to a jury trial to decide whether the charges in this case are true?
"THE DEFENDANT: Yes.
"THE COURT: And do you give up the right to have such a jury trial?
"THE DEFENDANT: Yes.
"THE COURT: And then you understand that it will be going forward as a court trial, correct?
"THE DEFENDANT: Yes.
"THE COURT: All right. Anything further necessary for that?"
The prosecutor responded that "the People would also be willing to waive jury trial." Defense counsel stated that she joined in the waiver, explaining, "There's a number of reasons for that but I think it's appropriate." Before commencing the court trial, Judge Moorman confirmed that "a waiver of jury [was] already put on the record," to which both parties attested, and that "we are here today to commence a court trial."
On appeal, defendant complains that neither judge "ever explained on the record to defendant the essential nature of jury trial under either the Sixth Amendment or article I, section 16, of the California Constitution. Nor did either judge make an express finding on the record that defendant's purported waiver of jury trial was voluntary, knowing, or intelligent." Instead, he claims the court "presumed [he] knew and understood what constituted jury trial" under these constitutional provisions. He asserts his convictions should therefore be reversed. We disagree.
It is established law that "[n]o particular language is necessary to waive a jury trial so long as the words employed disclose in their ordinary, common sense, fair meaning and context an intention to be tried by the court sitting without a jury." (People v. Martin (1980) 111 Cal.App.3d 973, 982 (Martin).)
It is true that defendant was never specifically advised on the record that he was entitled to a unanimous verdict by 12 jurors. However, there is no requirement that the trial court explain to a defendant every aspect that he is giving up in entering a waiver to a jury trial. (Martin, supra, 111 Cal.App.3d at p. 982; see People v. Wrest (1992) 3 Cal.4th 1088, 1103 [rejecting the assertion that a specific admonition must be recited to a defendant in order for a valid waiver of a jury trial].) We note defense counsel indicated that there had been "a fairly lengthy discussion" regarding jury trial waiver in chambers with Judge Moorman. While that discussion was not transcribed, it does appear that defendant was made aware of his rights, as he came to court on December 2, 2016, "prepared to waive a jury."
Moreover, defendant was represented by counsel at the time he entered his waiver. In People v. Acosta (1971) 18 Cal.App.3d 895, the defendant argued he did not knowingly and intelligently waive his right to a jury trial. He insisted he was only advised he had a right to have the case heard by a jury and that no other rights were explained to him. (Id. at pp. 900-902.) On appeal, he claimed "he did not know what a jury is or what it meant to waive trial by jury and to be tried by a judge." (Id. at p. 902.) The appellate court stated: "We are not aware of any rule of law that entitles a defendant who is represented by counsel and who has discussed waiver of a jury trial with his counsel, as here, to have the court advise him of the merits or the disadvantages of a trial by jury, as against a court trial. . . . It is enough that the court determine that the defendant understands that he is to be tried by the court and not a jury." (Ibid.)
In accepting a defendant's jury trial waiver, the trial court does not have a sua sponte duty to tell a defendant represented by counsel about " 'all the ins and outs' " of a jury trial (People v. Wrest, supra, 3 Cal.4th at p. 1105), the relative advantages or disadvantages of the different types of trials (People v. Castaneda (1975) 52 Cal.App.3d 334, 344), or that a jury trial requires a unanimous verdict (People v. Tijerina (1969) 1 Cal.3d 41, 45-46). On this record, we may presume defense counsel advised defendant of the nuances of waiving a jury and consenting to a bench trial. There is no indication that defense counsel was ineffective, or that defendant was misled by his counsel, the prosecutor, or the trial court. We conclude the record reflects an adequate understanding and waiver of the right to trial by jury. II. California Has Jurisdiction Over Count Two
Defendant and Jane Doe 1 are both members of the Pomo Tribe, and the crime was committed on the Pomo Reservation. Defendant asserts the conviction for sexual battery against Jane Doe 1 must be reversed, contending California lacks jurisdiction to try an offense committed by an Indian against another Indian on tribal land. He correctly observes, however, that the weight of authority is to the contrary.
Defendant's request for judicial notice of seven documents related to Native American affairs or specific tribal documents is denied. California Rules of Court, rule 8.252(a)(3) requires the party to file a copy of the matter to be noticed or explain why it is not practicable to do so. Defendant's motion references URL links, at least one of which does not work, with no explanation as to why he could not have provided this court with an electronic copy of the actual documents.
"Indian tribes 'retain "attributes of sovereignty over both their members and their territory," [citation], and . . . "tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States." ' " (People ex rel. Becerra v. Rose (2017) 16 Cal.App.5th 317, 324 (Rose).) "Criminal jurisdiction over offenses committed in 'Indian country,' [citation], 'is governed by a complex patchwork of federal, state, and tribal law.' " (Negonsott v. Samuels (1993) 507 U.S. 99, 102.) Historically, based on principles of federal preemption and Indian sovereignty, "criminal offenses by or against Indians have been subject only to federal or tribal laws, [citation], except where Congress in the exercise of its plenary and exclusive power over Indian affairs has 'expressly provided that State laws shall apply.' " (Washington v. Confederated Bands & Tribes of the Yakima Indian Nation (1979) 439 U.S. 463, 470-471.)
Title 18 United States Code Annotated section 1153 provides exclusive federal jurisdiction for the prosecution of major crimes, including sexual battery, committed by an Indian on Indian land. However, "that section is inapplicable to California. Title 18 United States Code Annotated section 1162(c) provides that '[the] provisions of sections 1152 and 1153 of this chapter shall not be applicable within the areas of Indian country listed in subsection (a) of this section as areas over which the several states have exclusive jurisdiction.' Listed in subdivision (a) of 18 United States Code Annotated section 1162 are six states, one of which is California. That section provides that California 'shall have jurisdiction over offenses committed by or against Indians in' all Indian country within the state 'to the same extent that such State . . . has jurisdiction over offenses committed elsewhere within the State . . ., and the criminal laws of such State . . . shall have the same force and effect within such Indian country as they have elsewhere within the State.' " (People v. Miranda (1980) 106 Cal.App.3d 504, 505-506 (Miranda).)
In Miranda, a Native American defendant was charged with arson committed on Indian land. The trial court held that the California courts did not have jurisdiction. (Miranda, supra, 106 Cal.App.3d at p. 505.) The appeals court reversed. (Ibid.) In the course of its ruling, the court observed: "18 United States Code Annotated section 1162 gave 'the courts of this state unquestioned jurisdiction over offenses committed in "All Indian country within the state." ' [Citation.] There is no doubt on this point." (Miranda, at p. 507, italics added.)
Public Law No. 280 (Public Law 280), of which 18 United States Code Annotated section 1162 is part, was enacted by Congress in 1953. (Pub.L. No. 83-280 (Aug. 15, 1953) 67 Stat. 588, as amended by the Indian Civil Rights Act of 1968, Pub.L. No. 90-284 (Apr. 11. 1968) 82 Stat. 73 (codified in scattered titles of 18, 25, & 28 U.S.C.).) The Third District recently confirmed California's jurisdiction over crimes committed on tribal lands, noting, "In Public Law 280, Congress gave California broad criminal and limited civil jurisdiction over Indian reservations in the state." (Rose, supra, 16 Cal.App.5th at p. 324.)
Defendant invites us to reject Miranda, arguing that although we are bound to apply Public Law 280 under the supremacy clause of the United States Constitution, that law is allegedly invalid because Congress did not have power to regulate "Indian Affairs on Indian Reservations." United States Supreme Court jurisprudence suggests otherwise.
The Supreme Court in United States v. Lara (2004) 541 U.S. 193 (Lara), stated the following: "First, the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as 'plenary and exclusive.' [Citations.] [¶] This Court has traditionally identified the Indian Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2, as sources of that power. [Citations.] The 'central function of the Indian Commerce Clause,' we have said, 'is to provide Congress with plenary power to legislate in the field of Indian affairs.' " (Lara, at p. 200.)
Defendant claims that Lara, and the cases cited therein, are "inconsistent with history and other decisions of the High Court" and they also do not "withstand scrutiny under modern day Commerce Clause case law." We are not convinced. We first note that Lara is a case from 2004, and therefore qualifies as a "modern day" case. More importantly, of course, is the fact that on issues of federal constitutional law, this court is bound under the supremacy clause of the United States Constitution by applicable decisions of the United States Supreme Court. The United States Supreme Court has "final authority to determine the meaning and application" of the federal Constitution. (Pennekamp v. State (1946) 328 U.S. 331, 335; see Chesapeake & Ohio Ry. v. Martin (1931) 283 U.S. 209, 220-221 & People v. Fletcher (1996) 13 Cal.4th 451, 469, fn. 6 [decisions of U.S. Supreme Court on questions of federal law "are binding on all state courts under the supremacy clause of the United States Constitution"].)
Defendant also asserts that the local band of Pomo Indians was unconstitutionally deprived of an opportunity to enter into a treaty with the United States in which the parties' sovereignty and relationship could be defined, including whether criminal jurisdiction would remain with the tribe. He challenges the constitutionality of title 25 United States Code section 71, which declares that tribes are not entities "with whom the United States may contract by treaty." In support, he cites Worcester v. Georgia (1832) 31 U.S. 515, an early opinion standing for the proposition that Indian tribes are "wholly distinct nations," a proposition from which the U.S. Supreme Court "long ago departed." (New Mexico v. Mescalero Apache Tribe (1983) 462 U.S. 324, 331.) Moreover, as discussed above, the high court has recognized the validity of Public Law 280, which gives California jurisdiction over criminal matters occurring on Indian lands. Accordingly, defendant's assertions are not persuasive. III. Sufficient Evidence Supports the Sexual Battery Conviction.
Defendant contends insufficient evidence supports his conviction on count two, the sexual battery against Jane Doe 1. Sexual battery occurs when "any person . . . touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse." (§ 243.4, subd. (a).) The term "touches" means "physical contact with the skin of another person, whether accomplished directly or through the clothing of the person committing the offense." (§ 243.4, subd. (f).) An "intimate part" is defined under this section to include the "groin" (§ 243.4, subd. (g)(1)).
While "groin" is not defined in the statute, we note the term has been defined by a Maryland court as " 'the name applied to the region which includes the upper part of the front of the thigh and lower part of the abdomen. A deep groove runs obliquely across it, which corresponds to the inguinal ligament, and divides the thigh from the abdomen.' " (Elias v. State (Md.Ct.App. 1995) 661 A.2d 702, 704, fn. 5, quoting Black's Medical Dict. (31st ed. 1976) p. 393.)
Defendant first alleges the prosecutor failed to prove that a "touching" of an intimate part occurred. He argues that while the prosecution established his hand was down Jane Doe 1's sweat pants, it failed to establish that he touched an intimate part of her body. He also contends there was insufficient evidence of unlawful restraint.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] 'This standard applies whether direct or circumstantial evidence is involved.' " (People v. Avila (2009) 46 Cal.4th 680, 701.) "Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765, italics added.) "Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (People v. Zamudio (2008) 43 Cal.4th 327, 358; accord, People v. Clark (2016) 63 Cal.4th 522, 626.)
In In re Gustavo M. (1989) 214 Cal.App.3d 1485, the victim testified that the defendant touched her breast as he tried to remove her leotard from her shoulder. (Id. at p. 1498.) The victim said the touch was "brief," and described it as "a very awkward caress." (Ibid.) The appellate court found that while it was unclear from the testimony whether the skin or the clothing on the victim's breast was touched, it was reasonable for the trier of fact to infer that a prohibited touching did occur, based on seeing the witness testify and observing her indications as to how the touching had occurred. (Id. at p. 1499.)
Viewed in the light most favorable to the judgment, there was evidence to establish a prohibited sexual touching as well as an unlawful restraint. A.W. testified that she saw Jane Doe 1 sitting on the bench with defendant hunched over her with his right hand "down her pants." She testified that his hand was not on top of Jane Doe 1's clothing. Instead, Jane Doe 1's T-shirt was pulled up and A.W. could see defendant's hand was inside her pants. The evidence provided by A.W.'s testimony supports a finding that defendant lifted up Jane Doe 1's shirt and put his hand down her sweatpants, underneath her clothing covering her groin area. From that evidence, the trial court could have legitimately inferred that he touched the skin on Jane Doe 1's groin.
The record also provides substantial evidence defendant unlawfully restrained Jane Doe 1. To violate section 243.4, the victim must be unlawfully restrained by the perpetrator. "[A] person is unlawfully restrained when his or her liberty is being controlled by words, acts or authority of the perpetrator aimed at depriving the person's liberty, and such restriction is against the person's will; a restraint is not unlawful if it is accomplished by lawful authority and for a lawful purpose, as long as the restraint continues to be for a lawful purpose. The 'unlawful restraint required for violation of section 243.4 is something more than the exertion of physical effort required to commit the prohibited sexual act.' " (People v. Arnold (1992) 6 Cal.App.4th 18, 28.)
A.W. testified that defendant was hunched over in front of Jane Doe 1 while she was sitting on a plastic bench. S.T. testified he saw defendant grabbing Jane Doe 1 by her hip. This evidence suggests that defendant restricted Jane Doe 1's freedom of movement. We also note that defendant himself testified that he grabbed Jane Doe 1 between her legs and that Jane Doe 1 was moving, squirming, and grabbing at his arm while he did so. This suggests she was physically resisting him. Thus, there is sufficient evidence that defendant restrained Jane Doe 1 by using more physical effort than required to commit the prohibited touching. IV. Sentencing Hearing
A. No Violation of Privilege Against Self-incrimination
Defendant claims he was unfairly sentenced because he refused to admit guilt, asserting that the trial court's imposition of sentence under such circumstances was a violation of the privilege against self-incrimination.
At the sentencing hearing, the trial court stated that "[w]hile [defendant] enjoys the pleasure of entering a not guilty plea and requesting a trial, which I respect and I would never punish somebody for exercising that right, his explanations on the stand in particular in relation to [Jane Doe 2], but also as to [Jane Doe 1], I found to be hard to believe. And, therefore, I didn't believe them." The court also cited Jane Doe 2's testimony, which it found credible, and contrasted it with "the explanation given by [defendant] for that accusation, both on the witness stand and in the course of the tape-recorded conversation he had with [Jane Doe 2] [which] caused me to believe that I don't think [defendant] is a good candidate for probation."
The constitutional privilege against self-incrimination applies at a sentencing hearing. A sentencing court must not draw an adverse inference from a criminal defendant invoking the right to remain silent at a sentencing hearing. (Mitchell v. United States (1999) 526 U.S. 314, 325-328.) In Mitchell, the sentence depended in part on how much cocaine the defendant had sold. The sentencing court told the defendant, " ' "I held it against you that you didn't come forward today and tell me that you really only did this a couple of times. . . . I'm taking the position that you should come forward and explain your side of this issue." ' " (Id. at p. 319.) The high court concluded, "By holding petitioner's silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled self-incrimination." (Id. at p. 330.)
We do not regard this as a case where the trial court based punishment, or a negative inference, on defendant's denials or his refusal to confess guilt. Defendant did not remain silent at trial, but testified and denied guilt. He also maintained this position postconviction when he spoke to the probation officer in anticipation of sentencing. It was no violation of defendant's right to remain silent for the trial court to consider what defendant said and did not say when he spoke about the crime. (Cf. People v. Ghent (1987) 43 Cal.3d 739, 770-771 [no violation for prosecutor to mention that the defendant " 'hasn't so much as told you he's sorry' " when he testified at the death penalty phase]; People v. Holt (1997) 15 Cal.4th 619, 691 [no violation for prosecutor to argue that a defendant who had testified at the guilt phase " 'has shown no remorse for the crime' "].)
Whatever the relevance of a continued claim of innocence to a defendant's remorse, it does appear to be relevant to the likelihood of a defendant becoming rehabilitated through treatment. As stated in United States v. Miller (1st Cir. 1978) 589 F.2d 1117, "We perceive a distinction . . . between punishing a defendant for maintaining his innocence and preserving his right to appeal—whether that punishment be expressly or subtly imposed—and merely considering a defendant's failure to recant when evaluating his prospects for rehabilitation without incarceration." (Id. at p. 1138.) A defendant who either honestly or dishonestly proclaims his innocence is unlikely to engage in efforts at rehabilitation premised on his guilt. For defendant to continue to deny that any sexual contact had occurred, despite the trial court's express disbelief, supports the conclusion that probation was not appropriate in this case.
B. Sentencing Discretion
Defendant contends he is entitled to a new sentencing hearing, claiming the trial court did not understand its sentencing discretion with respect to the section 288, subdivision (a) conviction. We disagree.
In her report and recommendation, the probation officer recommended that the trial court deny probation and sentence defendant to nine years in state prison (the midterm of six years on count two (Jane Doe 1) and three years on count three (Jane Doe 2). In its statement of sentence mitigation, the defense highlighted that section 1203.066 "prohibits the granting of probation unless certain conditions are met." Defendant's counsel asserted he should be granted probation under section 1203.066, subdivision (d)(1)(B), arguing he was "amenable to long term sexual offender treatment, (Safer program), and as such rehabilitation is feasible."
"A sentencing court enjoys broad discretion in determining whether to grant or deny probation. A defendant who is denied probation bears a heavy burden to show the trial court has abused its discretion. [Citations.] Furthermore, 'a denial of probation after consideration of the application on its merits is almost invariably upheld. [Citations.]' [Citation.] [¶] A sentencing court must state its reasons for denying probation. [Citations.] 'This obligation to state reasons is satisfied by an explanation of why probation has been rejected in favor of imprisonment. [Citations.]' [Citations.] For instance, the ' "nature and seriousness of the offense" ' is sufficient." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157-1158.)
During the initial sentencing hearing, the trial court found defendant was "presumptively ineligible' for probation. The court stated that "in order for me to place him on probation I'd have to find facts in the record that would support overcoming that presumption, which his age, his health might support a finding of that." Actual sentencing did not occur at this hearing because the matter was continued to address an issue with the probation report. Subsequently, it was determined that the probation officer's report had incorrectly indicated that defendant had previously pleaded guilty to a felony assault. It was determined that the conviction was actually a misdemeanor, not a felony.
At the second hearing, in sentencing defendant, the trial court stated that it had reread the probation officer's report, a psychiatrist's section 288.1 report, as well as letters of support from defendant's family and friends. The letters had a favorable impact, but the section 288.1 report "wasn't exactly a glowing report." The court also indicated it had disregarded defendant's prior criminal history. In explaining its decision to sentence defendant to four years in prison, the trial cited defendant's explanations regarding the circumstances of Jane Doe 2's allegations, stating, "I would have to find unusual circumstances to put him on probation. I don't think the 288.1 report supplies those. While I find his support within the community to be most—I respect it. I appreciate it. I understand it. It's not going to tip me to the decision to grant probation."
Defendant seizes on the trial court's use of the phrase "unusual circumstances" to argue the court mistakenly believed his case fell within the "unusual case" requirements of section 1203, subdivision (e). Section 288, subdivision (a), is not a crime that qualifies under the "unusual case" requirement of subdivision (e), which lists persons for whom probation shall not be granted "[e]xcept in unusual cases where the interests of justice would be best served if the person is granted probation. (§ 1203, subd. (e)(1)-(13); see § 1203, subd. (k) [mandatory denial of probation].) However, nothing in the record suggests that the court believed this case was governed by section 1203, subdivision (e). To the contrary, the record supports the conclusion that the court correctly considered defendant's sentencing in light of section 1203.066.
Section 1203.066, subdivision (d)(1) states: "If a person is convicted of a violation of Section 288 . . ., probation may be granted only if . . . [¶] . . . [¶] (B) [t]he court finds that rehabilitation of the defendant is feasible and that 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." Here, defendant specifically referenced section 1203.066, subdivision (d)(1)(B) in his statement in mitigation and during sentencing. Neither the prosecutor nor the trial judge corrected counsel's indication that this section was applicable, suggesting that they too were of the belief that section 1203.066 applied. Additionally, the probation officer's report references section 1203.066, subdivision (d)(1), noting that it "declares the defendant presumptively ineligible for probation unless certain terms and conditions are met." The court did not abuse its discretion in determining that defendant was not a suitable candidate for probation.
In light of our conclusions, we need not address defendant's other arguments.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.