Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM025105
NICHOLSON, J.
Defendant Robert Oliver Link pleaded guilty pursuant to a negotiated plea bargain to two counts of continuous sexual abuse of a child under the age of 14 years. (Pen. Code, § 288.5, subd. (a).) As part of his plea, defendant waived his right to a direct appeal of his conviction “absent any appeal to sentencing error.” The trial court sentenced defendant to an aggregate prison term of 10 years, based on the lower term of six years on one count plus one-third the middle term, or four years, on the second count, with both sentences to run consecutively.
Defendant appeals, claiming the trial court abused its discretion by sentencing him to prison rather than granting him probation. The Attorney General claims defendant’s waiver of the right to appeal encompassed any right to challenge the trial court’s denial of probation. We disagree. However, we conclude the trial court did not abuse its discretion in denying probation, and we affirm the judgment.
Because defendant pled guilty and no trial was held, the statement of facts is derived from defendant’s probation report.
Defendant’s victims were his two daughters from his second marriage, M.L. and K.L. Both girls were interviewed by law enforcement officers on May 26, 2006.
15-year-old M.L. reported to authorities that defendant, her 76-year-old father, sexually molested her from the time she was six years old until she was 12 years old. All of the incidents occurred in San Jose either when the family lived there or when she and defendant visited there after the family had moved to Chico.
Defendant regularly came into her bedroom in the early morning hours and fondled her breasts and genitalia. The molestations included digital penetration. The incidents occurred every couple of days. Sometimes during the incidents, defendant would tell M.L. he loved her and “‘not to tell anyone.’” He usually touched M.L. with his hands, but sometimes he touched her with his penis.
When M.L. was in the sixth grade, defendant attempted to have sexual intercourse with her. However, “‘it was very awkward and he did not succeed.’” She tried to get away from him during this incident, but he held her down.
M.L. stated her father asked her to orally copulate him, but she refused. Her father forced her to masturbate him until he “‘had to go the bathroom and clean up (ejaculated).’” She was “‘grossed out’” by the “‘stuff coming out’” of her father’s penis.
M.L. explained she was “‘very clueless about what was going on’” and was unsure if it was “‘just a father/daughter thing.’” She recalled her father telling her the molestations were “‘okay.’”
Defendant had not molested M.L. during the last few years. She recalled that when she last discussed the molestations with her father, “‘[h]e apologized and said he was so sorry and told me not to tell anyone about it.’” That occurred when he had attempted to have intercourse with her. He did not molest her again after that discussion.
13-year-old K.L. informed law enforcement officers that defendant had molested her on three separate occasions. The first incident occurred when she was seven, eight or nine years old. She was asleep on the bedroom floor in the family’s San Jose home when defendant touched her breast and vaginal area with his hand under her clothing. K.L. began to cry. She recalled he “‘was just feeling around and that was about it.’”
The second incident occurred in the morning hours while K.L. was in her bed. She kept trying to move away from defendant, but he grabbed her shoulder and pulled her back down flat onto the bed. He again fondled her breast and vaginal area with his hand under her clothing.
The last incident occurred in 2005 approximately eight months prior to K.L.’s interview with officers. On that occasion, K.L. moved away from defendant but he kept grabbing at her. She tried to make him stop, but he would not listen to her and continued to touch her. She ran from the bedroom into the living room and told defendant to leave her alone. Defendant then apologized.
Defendant admitted to law enforcement officers that he had molested M.L. “10 to 20” times and K.L., two times. He stated he had fondled M.L.’s breast and vaginal area and had digitally penetrated her vagina. He said M.L. had touched his penis “‘sometimes,’” but he denied making her masturbate him. He also denied attempting to have sexual intercourse with her. Officers arrested defendant on the same day these interviews were conducted, May 26, 2006.
DISCUSSION
I Waiver
The Attorney General claims defendant waived his right to challenge his denial of probation on appeal when he executed the plea agreement. Because the actual sentence was within the range allowed by the agreement, the Attorney General argues, the defendant cannot complain on appeal of being denied probation. We disagree.
Defendant’s waiver did not include a waiver of any error the trial court may have made when determining the sentence. A general waiver of the right to appeal does “‘not include error occurring after the waiver because it was not knowingly and intelligently made. Such a waiver of possible future error does not appear to be within defendant’s contemplation and knowledge at the time the waiver was made.’ [Citation.]” (People v. Sherrick (1993) 19 Cal.App.4th 657, 659.)
Nothing in the plea agreement indicates defendant waived the right to challenge an erroneous denial of probation. The language of defendant’s plea agreement indicates decisions on probation and sentencing were left to the trial court’s discretion. In the agreement, defendant waived “any direct appeal I may have, absent any appeal to sentencing error.” He did not agree to a particular sentence. He acknowledged the maximum prison sentence he could receive was 32 years. He understood that “the matter of probation and sentence [was] to be determined solely by the superior court judge.” Nowhere in the plea agreement did defendant waive a right to challenge any arbitrary or capricious exercise of discretion by the trial court on the issues of probation and sentencing. We thus turn to the merits of defendant’s appeal.
II Denial of Probation
Defendant claims the trial court abused its discretion when it denied him probation and sentenced him to state prison. He asserts the following factors support his argument: He admitted his culpability; his wife and two daughters wanted the family to stay intact; two psychologists believed he was at little risk of repeating his conduct; and his incarceration imposed substantial hardship on his family. He also argues his sentence was in effect a “death sentence” for him due to his age and poor health. We conclude the trial court did not abuse its discretion.
A. Additional background information
We summarize here the evidence submitted by defendant in support of his argument for probation and the trial court’s decision. Three mental health professionals commented on defendant’s condition. Dr. Paul Wuehler, a psychologist, examined defendant pursuant to a court order. Based on his interview with defendant and defendant’s performance on a number of predictive tests, Dr. Wuehler concluded defendant was not a danger to the community. There was a mild risk of reoffending with the victims unless and until proper rehabilitative treatment occurred, but there was no risk to others in the community. The offenses occurred due only to “proximity and position of trust.” Dr. Wuehler recommended defendant complete group sex offender counseling for at least two years.
A fourth, Andrea Bowman, a marriage and family therapist who provided counseling to the victims, apparently filed a report, but the actual report is not contained in the record.
Dr. Wuehler performed three psychological tests on defendant, the MCMI-III, the SVR-20 and the Static 99. Defendant’s results on the MCMI-III were normal. The other tests indicated defendant had a “low” risk of recidivism.
Dr. Wuehler filed a supplemental report which allegedly amended and qualified some of his earlier conclusions. Although the report was filed with the court, the actual report does not appear in the record. The trial court struck a portion of the supplemental report, and then indicated to counsel that “ultimately my decision is not, quite frankly, in any way influenced by this report . . . .”
Dr. James Park, a psychologist retained by defendant, also examined defendant. Based on his analysis, Dr. Park concluded defendant had a low risk of recidivism. Defendant displayed no anti-social behavior or self-absorbed attitudes to the exclusion of feeling empathy for the victims. He had stopped molesting the girls when they told him to stop. Defendant’s advanced age and poor health also indicated a low risk to reoffend. Defendant had undergone a quadruple bypass in 2000, had high cholesterol levels and high blood pressure.
Dr. Park administered a number of psychological tests, including the MMPI-2, the MCMI-III, the PCL-R, and the Static 99. The MMPI-2 disclosed no diagnoses of mental disorders. The MCMI-III demonstrated no personality disorders that would contribute to a risk of reoffending. The PCL-R indicates the existence of psychopathy beginning with a score of 30. Defendant’s score was 2. On the Static 99, defendant’s score was zero, indicating a low chance of recidivism.
Dr. Park noticed other protective factors. Defendant had gone approximately four years without committing an offense, he had no history of alcohol or drug abuse, he displayed no predatory or violent behavior, and he lacked interest in pornography. From these points, Dr. Park concluded defendant could have his sentence suspended due to his low risk of reoffending, and that the daughters’ best interests were to have defendant reunited with his family.
There is a conflict in the evidence regarding the length of time between defendant’s last offense and his arrest. According to the probation report, K.L. told officers defendant last molested her eight months prior. In written comments to the probation department, K.L. stated the molests ended in 2003, some three years before the arrest.
Dr. Park stated he consulted with Ms. Bowman, the daughters’ therapist. Allegedly, she agreed with him that the daughters risked permanent psychological harm if their father was imprisoned. Both girls wanted him home.
Dawn E. Horwitz-Person, a marriage and family therapist, ran a sexual offender treatment program. Defendant had signed up for her program one week after he was arrested. Horwitz-Person stated defendant was actively participating in the group treatment. He was in the early stages of treatment, but he had acknowledged his actions, was open to group feedback, and appeared to be honest in his group.
In addition to the testimony of the mental health experts, the court received numerous letters in support of defendant, including letters from defendant’s wife and the two victims. Defendant’s wife expressed concern about defendant being imprisoned with his heart condition. She also was concerned that if defendant was imprisoned, she would lose the family home without his income and the family would be “torn apart.”
M.L. wrote she had forgiven her father, and she asked for him to be allowed to come home. K.L. stated that her mother and her sister M.L. had been looking for jobs in order to provide for the family. Both girls stated they loved their father, and they worried about his health should he be incarcerated.
The trial court denied probation. It explained its reasoning: “There are no statutory restrictions on granting probation in this case; however, the court is denying defendant’s application for probation for the following reasons: The nature and seriousness and circumstances of the crimes, the vulnerability of the victims, and the degree of harm or loss to the victims.
Probation is statutorily prohibited when a person is convicted of violating Penal Code section 288.5 against more than one victim (Pen. Code, § 1203.066, subd. (a)(7)), but the prohibition applies only when the prosecution pleads and proves the prohibition’s elements. (Pen. Code, § 1203.066, subd. (c)(1).) The prosecution did not plead or prove defendant’s ineligibility, and thus the statutory prohibition does not apply. However, in such cases, the statute imposes additional criteria that must be satisfied in order for the court to grant probation. (Pen. Code, § 1203.066, subd. (d)(1).)
“The defendant planned these crimes. He instigated them and he was an active participant. He did take advantage of a position of trust and confidence to commit the crime. The court notes that any of the reasons stated for denying probation withstanding alone would be sufficient to justify a denial of probation in this case.”
The court imposed the lower term of six years on the principal count because circumstances in mitigation outweighed those in aggravation. It explained those mitigating circumstances: “The defendant is 77, but more importantly he has no record whatsoever at that age. He did acknowledge guilt at an early part of the proceedings. He does have a medical condition that is serious. He did have a successful military career. Court feels that based on everything, that the lower term is therefore justified.”
On the subordinate count, the court imposed a term of four years, which was one-third the middle term, and it ordered the term to run consecutively to the principal term. “The consecutive order,” the court explained, “is due to the following circumstances: The crimes and their objectives were predominantly independent of each other. They involved separate acts of violence or threats of violence, and they were committed at different times and places rather than being committed so close in time and place as to indicate a single period of aberrant behavior.”
B. Analysis
“Generally, the grant or denial of probation is within the broad discretion of the trial court and ‘will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’” (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1586.) “Absent a clear showing the decision to deny probation is arbitrary or irrational, it is presumed the trial court acted to achieve legitimate sentencing objectives.” (People v. Birmingham (1990) 217 Cal.App.3d 180, 186.)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that 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, 376-377.)
The trial court’s decision here was not irrational or arbitrary. As the record clearly discloses, the trial court considered and weighed the competing factors and rationally concluded that probation was not appropriate in this matter.
Rule 4.414 of the California Rules of Court states the criteria the court is to consider when determining whether to grant probation. It reads: “Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
The court relied on a number of facts relating to the crimes that justified denying probation. The crimes were very serious. Defendant molested his own daughters over a course of years. The victims were particularly vulnerable due to their relationship with defendant, their age, and their living with him in the same home. The psychological and emotional harm to the victims cannot be fully calculated due to their young ages.
Defendant planned the crimes. The crimes followed a pattern. Defendant would usually take advantage of the victims in the early morning hours while they slept in their beds. He abused M.L. according to this pattern with regularity. He was the instigator and the only active participant.
Defendant took advantage of a position of trust. He was the victims’ father, and instead of protecting them from harm, he perpetrated harm upon them. On occasion, he even used an element of force. A young daughter trusts that her dad will not harm her. Defendant desecrated this trust.
These factors, individually and collectively, form a sufficient basis for denying defendant probation. Defendant, however, points to the factors that suggest leniency: his low risk for recidivism, his clean record, his advanced age and poor health, his acceptance of responsibility, and the impact his imprisonment will have on the family. But the court considered these factors. Indeed, it relied upon them when it granted defendant the lower term on the principal count.
There is no doubt that the trial court sentenced defendant in a rational manner. It weighed the circumstances of the crime, took account of defendant’s individual circumstances, and imposed a sound sentence. In no way did the trial court abuse its discretion.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., CANTIL-SAKAUYE, J.
“(a) Facts relating to the crime.
“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.
“(b) Facts relating to the defendant.
“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.”