Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF024439 Timothy F. Freer, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
INTRODUCTION
A jury convicted defendant Ned Carroll McDonald of two counts of committing a lewd act against a child under the age of 14, involving his seven-year-old granddaughter. (Pen. Code, § 288, subd. (a).) The trial court sentenced defendant to two concurrent six-year prison terms.
All statutory references are to the Penal Code except when otherwise noted.
On appeal, defendant argues the court erred by admitting a pair of Jane Doe’s underwear into evidence. Defendant also challenges the court’s use of CALCRIM Nos. 330, 1190, and 1191. Finally, defendant protests the trial court’s denial of probation. We conclude there was no error and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe was born in August 2000. Defendant was her grandfather. Jane Doe’s father, B.M., was defendant’s son. B.M. and Jane Doe’s mother, D.H., were divorced and shared custody. B.M. lived with defendant briefly when Jane Doe was two or three years old and Jane Doe sometimes spent the night at defendant’s house. The two crimes involved separate incidents occurring in June 2005 and December 2007. The first trial ended in a mistrial because defendant’s primary witness was unavailable to testify due to a death in the family.
A. 2005 Incident
Jane Doe told B.M. that one of her grandfathers had licked her “pee-pee.” In a forensic interview in June 2005, she said defendant was the grandfather who had removed her underwear and kissed or licked her “private part, ” using his tongue. After that accusation, defendant agreed never to be alone with Jane Doe again.
Jane Doe testified at trial in April 2010 that she remembered the 2005 forensic interview. She recognized herself in the videotape and she identified defendant as the perpetrator in that incident. She also testified that defendant had touched her in the gun room of defendant’s residence when she was six years old. However, no crime was charged based on that incident.
B. 2007 Incident
B.M. testified that, on December 23, 2007, defendant was helping B.M. with some household tasks, including fixing the vertical blinds in Jane Doe’s bedroom. When B.M. left the bedroom and returned, Jane Doe was on the bed, lying on her stomach in a fetal position. Defendant had his back to B.M. and B.M. saw defendant slip his hand under Jane Doe’s dress and withdraw it quickly. B.M was unsure what he had witnessed so he directed Jane Doe to go downstairs and see her stepmother. Jane Doe said something like “see–see, I told you.” B.M. told defendant he needed to talk to him.
Defendant told B.M. Jane Doe had complained about having a “wedgie.” Defendant said that what B.M. observed was not what it appeared to be. Defendant also told B.M. that defendant realized he had probably “messed up” B.M.’s custody dispute with D.H. B.M. responded, “You know that that sort of thing–that can never happen again.” Defendant assured B.M, it would not: “You can–you can take that to the bank.”
In a subsequent police interview, B.M. reported he saw defendant standing over Jane Doe with his hand up her dress. B.M. did not mention defendant removing his hand from under Jane Doe’s dress. Jane Doe jumped off the bed and defendant commented to her that she should not have been complaining about a wedgie.
B.M. believed that Jane Doe often lied. Jane Doe had lied to him about her mother hitting her and bruising her hip. The bruise was actually caused by an accident when Jane Doe fell while playing.
Jane Doe testified that, during the December 2007 incident, she was on her back on the bed. She told defendant she had a wedgie, meaning her underwear was caught between her buttocks. Defendant offered to help her but she declined. Nevertheless, defendant tried to force open her legs but she was strong enough to resist. Jane Doe told defendant, “stop it, stop it.” She was about to call defendant a “dummy” when B.M walked in. Defendant ‘s hand was on her stomach. Defendant was startled and jumped back. B.M asked, “[w]hat the hell are you doing?, ” and angrily told defendant to get out of the house.
In a forensic interview conducted in January 2008, Jane Doe said defendant had rubbed and touched her all over when she was five years old and he was repeating the behavior. Jane Doe denied that she ever lied. Jane Doe was on her back on the bed when defendant rubbed her stomach and then her genitals. Jane Doe refused defendant’s instruction to open her legs. Defendant rubbed her genitals and his hand went under her panties. Jane Doe told defendant he was hurting her but he refused to stop. The touching lasted for about 10 minutes. Defendant warned her not to tell anyone. B.M. yelled at defendant and told him to leave the house.
Jane Doe also claimed in the forensic interview that she had told B.M. and his wife that defendant had molested Jaden, her sister. But Jaden was not Jane Doe’s sister and Jaden had never met defendant or visited defendant’s house. Jane Doe admitted lying about Jaden but asserted that her other statements were all true. Jane Doe repeated her accusations about the earlier molestation in which defendant rubbed her buttocks in the gun room when she was six years old.
When the police executed a search warrant for defendant’s house, they found a pair of pink panties, size four and marked with the name of Jane Doe, neatly folded in the drawer of a hutch located in the house’s entryway. The gun room in defendant’s house contained leather-making equipment just as Jane Doe had described in the 2008 forensic interview.
C. Defense Evidence
The defense contended that Jane Doe’s mother, D.H., had encouraged Jane Doe to fabricate accusations against defendant to obtain an advantage in D.H.’s custody dispute with B.M. After Jane Doe voiced her initial accusations in 2005, D.H. made a request for sole custody of Jane Doe. The 2005 forensic interviewer accused D.H. of having coached Jane Doe. In spite of the 2005 accusation, the court continued to allow B.M. to have joint custody of Jane Doe with D.H.
At the time of trial, B.M. was allowed only supervised visitation, which was supervised by Sherri, a neighbor. Sherri testified that Jane Doe told her in April 2009, “Because of what my grandpa did, I have to lie.” In November 2009, Jane Doe told Sherri that D.H. and Paula, Jane Doe’s therapist, had instructed Jane Doe to tell the court her grandfather had raped her because, when he went to jail, she could spend the night at her father’s house once again. Jane Doe told Sherri she did not know what the word “rape” meant. Sherri reported the conversation to D.H. who responded, “it [rape] was all the same and that’s what they say on the Lifetime channel movies.” Sherri disagreed, saying “No. It is not all the same.” D.H. suggested that Paula, the therapist, may have used the word “rape” with Jane Doe while preparing her for her testimony.
D.H. denied telling Sherri, that if B.M. sought full custody, defendant would have to be found guilty or she might lose custody of Jane Doe. D.H. admitted telling Sherri the case with defendant needed to end “so that the harassment of my custody case would stop.” D.H. acknowledged that Jane Doe had misrepresented how she was bruised and about defendant molesting Jaden.
Helen was D.H’s. friend and her former aunt by marriage to another ex-husband (not B.M.). Helen testified that D.H. told Helen in April 2009 that D.H. wanted defendant to be convicted so she could accuse B.M. of failing to protect Jane Doe and D.H. would receive custody. D.H. also told Helen she planned to sue B.M. civilly, presumably for damages. D.H. denied telling Helen that she planned for defendant to be convicted so she could have B.M.’s parental rights terminated.
D. Rebuttal Evidence
Paula denied coaching Jane Doe during therapy. Instead, she tried to prepare her to testify truthfully. When Jane Doe said she had been raped, Paula told Jane Doe she had been molested not raped.
Barbara, another therapist, who had treated Jane Doe in 2005, said Jane Doe told her that defendant had “kissed me in a place that made me mad” and pointed to her crotch. In play therapy, Jane Doe commented she was dressing dolls because she did not “want their privates to show.”
III
ADMISSIBILITY OF CHILD’S UNDERWEAR
Defendant first contends that the trial court abused its discretion and violated defendant’s right of due process by allowing testimony and evidence about the child’s pink underwear, which the police discovered in the drawer of a hutch, located in the entryway of defendant’s house. The admissibility of the underwear was discussed twice in pretrial motions. The court concluded the evidence was relevant and probative because the underwear seemed to be a memento or a keepsake and it could indicate defendant had a prurient interest in young girls. The court also decided the evidence was more probative than prejudicial.
In closing argument, the prosecutor argued the underwear demonstrated that defendant had a lewd interest in Jane Doe. On appeal, defendant argues, as he did below, that defendant’s possession of the underwear could be considered innocuous, a “pink herring, ” because Jane Doe often spent the night with B.M. at defendant’s house and could have left the underwear at the house.
Only relevant evidence is admissible and all relevant evidence is admissible. (Evid. Code, §§ 350, 351.) Relevant evidence, “‘no matter how weak it may be... tends to prove the issue before the jury.’” (People v. Freeman (1994) 8 Cal.4th 450, 491.) Evidence Code section 352 excludes evidence that is more prejudicial than probative. The trial court exercises broad discretion in determining the relevancy of evidence, as well as its probative and prejudicial effect. (People v. Carpenter (1999) 21 Cal.4th 1016, 1048; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Prejudice does not flow from relevant evidence but from prejudging a person based on extraneous factors. (People v. Harris (1998) 60 Cal.App.4th 727, 737, citing People v. Zapien (1993) 4 Cal.4th 929, 958.)
Defendant argues the underwear was not relevant because the prosecution failed to offer expert testimony that pedophiles characteristically keep mementos of sexual conduct. We disagree. Had the prosecution tried to present expert evidence on the practices of pedophiles, defendant might have objected to such expert testimony as improper profile evidence. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084-1087, citing People v. McAlpin (1991) 53 Cal.3d 1289.) Furthermore, we agree with the People’s point that the arguments about why defendant had Jane Doe’s underwear affected the weight of the evidence, not its admissibility. (People v. Williams (1997) 16 Cal.4th 153, 249-250.) Based on all the evidence presented, the jurors could decide for themselves whether it was likely the underwear was left accidentally at defendant’s house when Jane Doe was visiting with her father or whether defendant had acquired the underwear for more salacious purposes.
Similarly, we do not find the admission of the underwear was more prejudicial than probative. It was the jury’s province to decide the weight of the evidence. The jury could have disregarded the prosecution’s arguments about why defendant possessed the underwear. The trial court did not exceed the bounds of reason by permitting alternative evidence about why defendant had possession of the underwear. (People v. Carter (2005) 36 Cal.4th 1114, 1152; People v. Reeves (1980) 105 Cal.App.3d 444, 449-450 and People v. Memro (1995) 11 Cal.4th 786, 865 [sexually suggestive or explicit nude photographs admitted as probative].)
We also reject defendant’s federal constitutional due process argument, which he forfeited by failing to raise it in the court below. (People v. Catlin (2001) 26 Cal.4th 81, 172.) In any event, defendant’s contentions lack merit, as already discussed, and for the additional reason that defendant’s trial was not fundamentally unfair, as required to establish a due process violation: “‘Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.’” (People v. Partida (2005) 37 Cal.4th 428, 439, citing People v. Watson (1956) 46 Cal.2d 818, 836.)” (People v. Watson (2008)43 Cal.4th 652, 686.)
Sufficient evidence supported the jury’s verdict even if the underwear had been excluded. Jane Doe reported three separate instances of molestation–occurring in 2005, in the gun room, and in 2007–over a two- or three-year period. In two different forensic interviews, Jane Doe described the incidents with credible details. Jane Doe also spontaneously disclosed the 2005 molestation to her former therapist, Barbara. In his trial testimony, defendant’s son, B.M., substantially confirmed the molestation which occurred in December 2007. There is no reasonable probability that defendant would have achieved a more favorable result but for the admission of the underwear. (People v. Page (2008) 44 Cal.4th 1, 49.) It was not prejudicial error to admit evidence of the underwear.
IV
CALCRIM NOS. 330 and 1190
Defendant contends he is entitled to reversal because CALCRIM Nos. 330 and 1190 unconstitutionally lowered the prosecution’s burden of proof and artificially boosted Jane Doe’s credibility. Other California courts have rejected similar challenges. We do likewise.
A. CALCRIM No. 330
The court instructed the jury in accordance with CALCRIM No. 330 as follows:
“You have heard testimony from a child who is age ten or younger. As with any other witness, you must decide whether the child gave truthful and accurate testimony.
“In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development.
“When you evaluate child’s cognitive development, consider the child’s ability to perceive, understand, remember and communicate.
“While a child and adult witness may behave differently, that difference does not mean that one is any more or less believable than the other.
“You should not [dis]count or distrust the testimony of a witness just because he or she is a child.”
Defendant maintains the instruction “invaded the province of the jury, lessened the prosecution’s burden of proof, denied [defendant] the jury’s assessment of the child witnesses, [sic] and violated due process.” Defendant contends CALCRIM No. 330 “improperly rehabilitated” the credibility of Jane Doe who was “an inherently unreliable witness.” Defendant acknowledges he did not object to the instruction at trial but argues he did not forfeit the issue on appeal because the erroneous instruction affected his substantial rights. (§ 1259.)
As defendant concedes, several Courts of Appeal have emphatically rejected the same constitutional challenge to CALCRIM No. 330–involving the older parallel instruction, CALJIC No. 2.20.1. (See People v. McCoy (2005) 133 Cal.App.4th 974, 979-980; People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574 [Fourth Dist., Div. Two]; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393; People v. Harlan (1990) 222 Cal.App.3d 439, 455-457 [Fourth Dist., Div. Two].)
McCoy summarized the holdings of the three earlier cases: “Two of those cases arise from the Fourth Appellate District, Division Two. In the first of those cases, People v. Harlan [, supra, ] 222 Cal.App.3d 439..., the court held that the instruction neither excessively inflates a child’s testimony nor impermissibly usurps the jury’s role as arbiter of witness credibility nor violates the accused’s right to confront a child witness nor ‘require[s] the jury to draw any particular inferences from a child’s cognitive ability, age and performance as a witness. Rather, it instructs the jury to consider such factors in evaluating a child’s testimony.’ (Id. at pp. 455-457.) In the second of those cases, People v. Jones [, supra, ] 10 Cal.App.4th 1566..., the court held that the instruction ‘presupposes that the jury must make a determination of credibility, but only after considering all the factors related to a child’s testimony, including his [or her] demeanor, i.e., how he or she testifies on the stand, ’ all without ‘“foreclos[ing] independent jury consideration of the credibility of a child witness.”’ (Id. at pp. 1572, 1574.) A case from the Sixth Appellate District held that CALJIC No. 2.20.1 neither ‘“lessen[s] the government’s burden of proof”’ nor ‘“instructs the jury to unduly inflate the testimony of a child witness”’ (People v. Gilbert [, supra, ] 5 Cal.App.4th [at p.] 1393...: ‘The instruction tells the jury not to make its credibility determinations solely on the basis of the child’s “age and level of cognitive development, ” but at the same time invites the jury to take these and all other factors surrounding the child’s testimony into account. The instruction provides sound and rational guidance to the jury in assessing the credibility of a class of witnesses as to whom “‘traditional assumptions’” may previously have biased the factfinding process. Obviously a criminal defendant is entitled to fairness, but just as obviously he or she cannot complain of an instruction the necessary effect of which is to increase the likelihood of a fair result.’ (Ibid.)” (People v. McCoy, supra, 133 Cal.App.4th at p. 979.)
We find the holdings of these four cases persuasive and unaffected by the Supreme Court’s decision in People v. Dennis (1998) 17 Cal.4th 468, 527 (earlier unsuccessful attacks on CALJIC No. 2.20.1 “not so baseless and unreasonable as to render defense counsel’s performance deficient for not requesting the instruction....”). Accordingly, we reject defendant’s constitutional challenge to CALCRIM No. 330.
B. CALCRIM No. 1190
We also reject defendant’s constitutional challenge to CALCRIM No. 1190 for similar reasons. During the discussion on proposed jury instructions, defense counsel objected to CALCRIM No. 1190 on grounds it was already covered by CALCRIM No. 301, the instruction on a single witness’s testimony.
Defendant raises the issue here to preserve it for further review. But defendant acknowledges that the Supreme Court rejected his constitutional arguments with respect to CALJIC No. 10.60, the parallel instruction to CALCRIM No. 1190, in People v. Gammage (1992) 2 Cal.4th 693, 700-702. Although defendant maintains Gammage was wrongly decided, he also concedes we are bound by its holding under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. Accordingly, we conclude the trial court neither erred nor violated defendant’s constitutional rights by instructing the jury with CALCRIM No. 1190.
V
CALCRIM NO. 1191
Defendant was charged with and convicted of two offenses. In addition to the 2005 and 2007 offenses, Jane Doe reported during her forensic interviews that defendant had molested her by rubbing her buttocks in the gun room of his residence when she was six years old. Defendant was not charged based on that incident.
The court gave CALCRIM No. 1191, which instructed as follows:
“The People presented evidence that the defendant committed the crime of lewd or lascivious act with a child under the age of 14 that was not charged in this case.
“... You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the [un]charged offense.
“... If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit lewd or lascivious acts with a child under the age of fourteen as charged here.”
Defendant raises several claims concerning Evidence Code section 1108, CALCRIM No. 1191, and the admissibility of the uncharged conduct evidence. All of his arguments lack merit.
First, defendant argues use of the uncharged conduct to convict him violated his right to due process of law because it allowed the jury to infer he “had a propensity to commit sex crimes, ” and the notion of not convicting a defendant based on propensity evidence is deeply rooted in the common law tradition of this country. But, as defendant acknowledges, in People v. Falsetta (1999) 21 Cal.4th 903, the California Supreme Court rejected this very contention. (Id. at pp. 910-922.) We are bound by Falsetta. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455; People v. Manning (2008) 165 Cal.App.4th 870, 877 [applying doctrine to constitutional challenge of Evidence Code section 1108].)
Next, defendant contends Evidence Code section 1108 violates equal protection because it subjected him to disparate treatment by sanctioning the admission of evidence traditionally excluded as unreliable and prejudicial. People v. Fitch (1997) 55 Cal.App.4th 172 rejected an equal protection attack on Evidence Code section 1108. First, it concluded “the statute [did not] infringe[] upon... constitutional rights, ” and therefore was “subject to a rational-basis analysis. [Citation.]” (Id. at p. 184.) It then held “Evidence Code section 1108 withstands this relaxed scrutiny. The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant’s commission of other sex offenses. This reasoning provides a rational basis for the law.... In order to adopt a constitutionally sound statute, the Legislature need not extend it to all cases to which it might apply. The Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others. [Citation.]” (Id. at pp. 184-185.)
In People v. Falsetta, supra, 21 Cal.4th 903, the Supreme Court cited Fitch’s equal protection discussion with approval. (Id. at p. 918.) We also agree Fitch’s analysis is persuasive and follow it.
Defendant also argues the trial court violated his right to due process of law by giving CALCRIM No. 1191 because it allowed the jury to find that the prior act was committed using a preponderance of the evidence standard and then infer guilt of the charged offense from the commission of the prior acts. In People v. Reliford (2003) 29 Cal.4th 1007, the Supreme Court rejected the same constitutional challenge to the equivalent parallel instruction, CALJIC No. 2.50.01.
In Reliford, the court expressly noted, the “[d]efendant complains that, having found the uncharged sex offense true by a preponderance of the evidence, jurors would rely on ‘this alone’ to convict him of the charged offenses. The problem with [this] argument is that the instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses. Indeed, the instruction’s next sentence says quite the opposite: ‘if you find by a preponderance of the evidence that the defendant committed a prior sexual offense..., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.’ The jury, of course, was instructed to consider the instructions ‘as a whole’ [citation], just as we must view a challenged portion ‘in the context of the instructions as a whole and the trial record’ to determine ‘“whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.] Viewed in this way, the instructions could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct. [Citation.]” (People v. Reliford, supra, 29 Cal.4th at p. 1013.)
Recent cases have concluded Reliford’s holding applies to CALCRIM No. 1191 as well. “As to defendant’s challenge to the instruction, it is based on his assertion that the instruction on the use of prior sex offenses ‘wholly swallowed the “beyond reasonable doubt” requirement.’ The California Supreme Court has rejected this argument in upholding the constitutionality of the 1999 version of CALJIC No. 2.50.01. [Citation.] The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to... CALCRIM No. 1191... in its explanation of the law on permissive inferences and the burden of proof. We are in no position to reconsider the Supreme Court’s holding in Reliford [citation], and by analogy to Reliford, we reject defendant’s argument regarding the jury instruction on use of his prior sex offenses.” (People v. Schnabel (2007) 150 Cal.App.4th 83, 87, fn. omitted; see also People v. Cromp (2007) 153 Cal.App.4th 476, 480.) We reach the same conclusion here.
VI
DENIAL OF PROBATION
Defendant’s final contention on appeal is the court should have granted him probation instead of sentencing him to prison for six years. The trial court exercises broad discretion, subject to statute, in granting or denying probation. (People v. Wutzke (2002) 28 Cal.4th 923, 932, fn. 7; People v. Stuart (2007) 156 Cal.App.4th 165, 178-179; People v. Marquez (1983) 143 Cal.App.3d 797, 803.) The relevant statutes and rules are sections 1203, 1203.66, and 1203.67, governing probation for sex offenders, and California Rules of Court, rule 4.414.
The following factors, identified by the court-appointed psychologist favored probation: defendant accepted the restriction against being alone with a child; a prison sentence would not be in the best interest of Jane Doe; defendant had been in jail long enough for it to be considered sufficient punishment from the perspective of Jane Doe; defendant was amenable to therapy even though he denied being guilty and believed he was unjustly accused; defendant did not pose a threat to Jane Doe because he had no history of violence and he did not see her very often. B.M. was willing to make sure that defendant was never present with Jane Doe.
The probation officer listed the following factors favoring probation: defendant did not have a prior criminal record; defendant was willing and able to comply with the terms of probation; and the likely effects of imprisonment on defendant could be serious. The probation officer identified other factors disfavoring probation: the nature and circumstances of the crime were more serious than other instances of the same offense because defendant engaged in oral contact; the victim was vulnerable because of her age and relationship to defendant; defendant inflicted physical or emotional injury; the crimes employed sophistication and planning; defendant took advantage of his position of trust and confidence as the victim’s paternal grandfather; and defendant could pose a danger to others if not imprisoned. Defendant also did not express regret or remorse and might be inclined to repeat the behavior as he did before. The probation officer deemed defendant unsuitable for probation and recommended prison.
At the sentencing hearing, defense counsel argued defendant posed no danger because he had not harmed anyone during the two years he was out of custody awaiting charges. The prosecutor argued that defendant continued to molest Jane Doe after the first incident was reported and the prosecutor predicted he would molest her or other children again if there was an opportunity. The prosecutor read a letter from the maternal grandmother, describing Jane Doe’s emotional difficulties. D.H. also wrote a letter describing the negative impact of the case on the family.
The trial court determined it would not be in the best interest of Jane Doe to grant probation to defendant and that defendant posed a threat of physical harm to Jane Doe if released from custody. (§ 1203.066(d)(1)(E).) The trial court also found that the factors stated in California Rules of Court, rule 4.414, disfavored probation. Because defendant used oral contact with the victim, the nature and circumstances of the crime involved substantial sexual conduct. (Cal. Rules of Court, rule 4.14(a)(1).) The victim was a young and vulnerable grandchild. (Cal. Rules of Court, rule 4.414(a)(3).) Jane Doe suffered emotional injury. (Cal. Rules of Court, rule 4.414(a)(4).) Defendant exploited his position of trust and confidence. (Cal. Rules of Court, rule 4.414(a)(9). Defendant still posed a danger to Jane Doe. (Cal. Rules of Court, rule 4.414(d)(8).) The court recognized defendant had no prior record, he was willing and able to comply with probation, and he would be seriously affected by prison. (Cal. Rules of Court, rule 4.414(b)(1), (3), (4), & (5).) Nevertheless, the court concluded, based on a balancing of the factors, that defendant was not a suitable candidate for probation.
The record does not demonstrate the trial court abused its discretion. It followed the law under sections 1203.066 and 1203.67 and California Rules of Court, rule 4.414. It read and considered the probation report and the psychological evaluation. It entertained argument from counsel and considered written statements submitted on behalf of defendant and of the victim.
We agree with defendant that the trial court should not have used the “best interest of the child” analysis because that factor only applies if defendant was a member of Jane Doe’s household. (§ 1203.066, subd. (d)(1)(A).) But we reject defendant’s assertion that the court improperly considered defendant’s lack of remorse as an aggravating factor. The court expressly stated that defendant would be a suitable candidate for treatment and could comply with the terms and conditions of probation.
Ultimately, however, the decisive consideration on appeal is that substantial evidence supports the trial court’s conclusion that defendant could pose harm to Jane Doe since he molested her two more times after the first incident occurred and was reported. Based on that compelling factor, the trial court did not exercise its discretion in an arbitrary or capricious manner in denying probation for defendant. (People v. Edwards (1976) 18 Cal.3d 796, 807.)
VII
DISPOSITION
We reject defendant’s claims of evidentiary and instructional error and of error in denying probation. We affirm the judgment, convicting defendant of two counts of committing a lewd act against a child under the age of 14 and sentencing defendant to two concurrent prison terms of six years.
We concur: Richli Acting P.J., Miller J.