Opinion
F042467.
11-18-2003
THE PEOPLE, Plaintiff and Respondent, v. ALFRED ALBERT NUNES, Defendant and Appellant.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Wiseman, J. and Levy, J.
Pursuant to Penal Code section 288.1, a defendant convicted of a lewd or lascivious act shall not have his sentence suspended until the court obtains a psychological or psychiatric report regarding the defendants mental condition. Defendant, Alfred Albert Nunes, appeals from his sentencing hearing, following a remand from this court, claiming the trial court erred in failing to order the preparation of a Penal Code section 288.1 report before it determined that he was not a suitable candidate for probation. We affirm.
All future code references are to the Penal Code unless otherwise noted.
Statement of the Case
Defendant was convicted of two counts of lewd and lascivious acts by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. In People v. Nunes (F037635, Oct. 4, 2002), we held the jury was not properly instructed on the lesser-included offense of nonforcible lewd and lascivious acts. We remanded the matter to the trial court with the following instructions: "On remand, if the prosecution consents to forego retrying defendant for two counts of forcible lewd and lascivious acts, the trial court shall enter on the record two convictions for lewd and lascivious acts pursuant to section 288, subdivision (a) and resentence defendant. In the alternative, if the prosecutor does not so consent, the trial court shall timely set the charges for a new trial." (Slip opn. at p. 14.)
The matter was remanded and the prosecutor chose to not retry defendant on the force element of the lewd and lascivious acts. The trial court ordered the preparation of a new supplemental probation report. The prosecutor pointed out that defendant could not be considered for probation absent a section 288.1 evaluation.
A supplemental probation report was prepared. The probation officer stated that although defendant is eligible for a grant of probation, subject to receipt of a section 288.1 report, "he is viewed as a danger to the community and completely unsuitable for probation."
At defendants sentencing hearing, defense counsel argued that defendant was a suitable candidate for probation and was not a danger to the community. He noted that defendant had prior convictions in 1967, 1975 and 1990, but argued that his criminal history was minimal considering that he is a 74-year-old man. He stated that with a section 288.1 report defendant would be eligible for probation and asked the court to consider probation.
The People noted that defendant had a prior criminal record and that the crimes here occurred on two different occasions. The court stated that it had read the prior report and the current report and noted that in the original report defendant stated he was not a bad person and had other witnesses that should have been called. The court noted that there were numerous letters in support of defendant, as well as letters against him. The trial court discussed whether a section 288.1 report was required and stated that pursuant to case law it need not order such a report unless it was inclined to grant probation. The court stated that it was not inclined to grant probation. It gave the following reasons: "Theres been no acknowledgment of his responsibility. And at least as far as the victim is concerned in this case, and the facts of this case demonstrate, it seems to the Court that the Defendant does pose a danger to society as reflected in the recommendation" by the probation officer. Probation was denied and defendant was sentenced to prison for a total term of eight years.
Statement of the Facts
The statement of the facts is from our first opinion in case number F037635.
FACTS
Defendant and P. lived together. Defendant frequently baby-sat P.s two grandsons, 11-year-old A. and five-year-old E., and granddaughter, eight-year-old K. The three grandchildren went to the home of defendant and P. almost every Monday after school.
K. testified that on these Mondays defendant would call her in the house and lock her brothers out of the house. He would touch her between her legs, underneath her clothing. At first, these molestations occurred while K. was standing up. During later molestations, defendant would lie on top of K. on the bed. The acts occurred throughout K.s second grade school year and the first two Mondays of third grade.
K. told her cousins and A. what happened. A. told his former babysitter, Anita S., that defendant would lock the boys out of the house and keep K. in the house. A. looked in a window and saw defendant lying on top of K. on the bed in A.s grandmothers room. K.s clothes were partially removed, as were defendants pants. A. said he witnessed this through the window two times and once saw K. on top of defendants lap on the couch. K. told A. about the molestations and stated she did not want defendant to do it, but he begged her.
K.s cousin was sometimes at defendants home. The cousin testified that K. told him that defendant "raped" her; he made her do it. During this same time period, K. would sometimes go to the home of one of her friends. The friends mother saw K. playing with toys in a sexual manner. At the time she thought K. had seen some adult movies. She did not report the incidents to anyone.
Anita S. told K.s mother what A. had told her. The mother was surprised. K.s mother took her to the doctor. The doctor found no signs of abuse, but he did not perform a genital exam. The mother asked K. if anything happened and she said no. In September of 2000, based on a conversation she had overheard, K.s great aunt urged K.s mother to call law enforcement. She did.
Deputy Sheriff Dale Baumann interviewed K. She told him that defendant would lock her brothers outside while she was inside. Defendant would touch her genitalia. She told the deputy that she was scared and afraid when she was locked in the house with defendant. K. told Deputy Baumann that the molestations involved skin-to-skin contact and said it happened four times.
Deputy Sheriff Hardin Weaver interviewed A., who told him he saw defendant do "stuff" to K. Defendant would tell A. to go outside and then defendant would lock the door. A. looked in the window and saw defendant on top of K. K.s underwear was pulled down.
Discussion
Section 288.1 provides in part: "Any person convicted of committing any lewd or lascivious act... upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist [or] from a reputable psychologist ... as to the mental condition of that person."
Defendant contends the trial court erred in declining to order a psychological report under section 288.1. He claims the error deprived him of due process of law, his right to necessary ancillary defense services, and his right to the effective assistance of counsel. He argues that he has no prior significant record, he is advanced in age, and, because of this, his eight-year sentence was virtually a sentence of life without the possibility of parole. He claims that the services of a compensated expert were necessary to allow him to prepare for his "monumental sentencing."
The trial court relied on People v. Thompson (1989) 214 Cal.App.3d 1547 to proceed without ordering a section 288.1 report. The court in Thompson studied the statutory language of this section to ascertain the intent of the Legislature. It concluded, "[i]t is clear from the language of section 288.1 that a report is not mandated in every lewd or lascivious act case. Only if the trial court is inclined to grant probation must a report be ordered. The language cannot be any plainer." (Thompson , at p. 1549.)
The appellate court found "[t]he obvious intent of the Legislature in enacting this statute was to protect society by requiring a psychiatric or psychological report insuring that defendant is a suitable candidate for probation." (People v. Thompson, supra, 214 Cal.App.3d at p. 1549. The trial court here followed the law in Thompson. It felt that defendant was not a suitable candidate for probation because defendant had failed to acknowledge any responsibility for the acts, and the facts of the case demonstrated that defendant posed a danger to society. The record supports the trial courts reasons. Defendant did not acknowledge any responsibility for his actions. The acts against K. were very serious in nature. Defendant touched K. between her legs, underneath her clothing. He did so after he called her into the house and locked the door, isolating her from her brothers. The acts occurred while defendant was in a position of trust, baby-sitting the victim. The acts occurred on more than one occasion. All of these facts support the trial courts decision that defendant was not a suitable candidate for probation.
The court disregarded dictum in People v. Franco (1986) 181 Cal.App.3d 342, a case from this court, that stated a section 288.1 report was required. (People v. Thompson, supra, 214 Cal.App.3d at pp. 1549-1550.) We too shall disregard the dicta in Franco.
Defendant argues that he is constitutionally entitled to ancillary services for the preparation of a section 288.1 report. This argument fails for several reasons. First, although defense counsel at sentencing stated that "with a section 288.1 report from a noted psychologist then Mr. Nunes would be eligible for probation," counsel never asked the court to order the preparation of a section 288.1 report. Also, a right for ancillary services does not arise unless the party requesting the services shows a need for such services. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321.) Defendant made no attempt to show what would be reflected in the report that might influence the judge to consider granting probation; moreover, he made no showing that there was a financial need. Finally, the purpose of a report is not to aid the defendant in an attempt to seek probation; it is to ensure that society is protected. If the trial court has no intention of granting probation there is no need to see if society might be harmed by the release of the defendant on probation and it need not order a report.
The trial court did not err when it declined to order a section 288.1 report.
Disposition
The judgment is affirmed.