Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06493
SIMS, J.Defendant Joseph Price Ridgeway pled no contest to two counts of lewd or lascivious acts on a child under the age of 14. (Pen. Code, § 288, subd. (a); undesignated statutory references are to the Penal Code.) Probation was denied and he was sentenced to a term of 10 years in state prison.
Defendant appeals, claiming the trial court abused its discretion by denying him probation. He also contends the court’s imposition of fines under section 290.3 violated the prohibition against ex post facto application of laws. Agreeing only with the second of these two contentions, we shall modify the amount of the fine and otherwise affirm the judgment.
PROCEDURAL AND FACTUAL BACKGROUND
While living with his girlfriend and her children in 2004, defendant inserted his finger into the anus of his girlfriend’s eight- or nine-year-old daughter and, on another occasion, placed his penis in his six-year-old niece’s anus. Defendant also touched both victims’ vaginas and buttocks. According to the girlfriend’s other daughter (also age eight or nine), defendant “‘put his dick in [her]’” on two occasions, having watched a pornographic movie with her on one of those occasions. Another niece, who was seven or eight years old at the time, reported that defendant placed his penis between her legs and “moved ‘back and forth.’” Based on these incidents, defendant was charged with four counts of lewd and lascivious acts on a child under the age of 14. (§ 288, subd. (a).)
Defendant pled no contest to two of the counts in exchange for an agreement that the other two counts would be dismissed with a Harvey waiver for purposes of a “stay-away order” and he would receive no more than 10 years in state prison if probation was denied. Defendant was advised he could not be placed on probation without “a favorable report by a psychologist” and that the trial court would not consider whether to appoint a psychologist until it saw the probation report.
Under People v. Harvey (1979) 25 Cal.3d 754 at pages 758 through 759, a trial court may not consider charges that have been dismissed as part of a plea agreement for purposes of sentencing unless those charges are transactionally related to the offenses which the defendant admitted or there is a “contrary agreement.”
According to the probation report, although defendant expressed remorse, he admitted only that he pinched the victims’ buttocks and denied any inappropriate conduct with the victims of the dismissed counts. Defendant’s criminal record consisted of two convictions for driving under the influence (DUI) (Veh. Code, § 23152, subd. (a)) and a misdemeanor conviction of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) following his unsuccessful attempt to comply with drug diversion. Defendant’s probation had been revoked on several occasions, based on failing to complete the DUI program, failing to complete his jail sentence, failing to pay a fine and committing new law violations.
The probation report recommended that probation be denied. The report noted that, due to the nature of defendant’s offenses (involving multiple victims), the trial court would need to make specified findings under section 1203.066, subdivision (c), to grant probation. However, the probation officer concluded that defendant was an inappropriate candidate for probation regardless of his eligibility. The probation officer believed that defendant continued to pose a potential harm to children and noted numerous criteria negatively affecting defendant’s appropriateness for probation, including the vulnerability of the victims, defendant’s violation of a position of trust, his poor prior performance on probation and his limited education and unstable employment history.
At defendant’s sentencing hearing, the father of two of the victims (who was also defendant’s uncle) asked the trial court to “put [defendant] away where he can never hurt another child” so that he would “suffer as [the victims] have suffered.”
The court remarked that defendant was not eligible for probation in the absence of a favorable section 288.1 report and that it would not be inclined to grant probation even if there was a favorable report, noting that defendant also was not eligible for probation under section 1203.066.
Defendant’s attorney asked the trial court to order a section 288.1 report based on defendant’s “insignificant” criminal record, his remorse and the fact that he had never been on formal probation. The attorney maintained that the court “could make the necessary findings” if a section 288.1 report were prepared.
The trial court declined to order a section 288.1 report, concluding that even if defendant received a favorable report, the standard probation criteria did not justify a grant of probation. The court denied probation and sentenced defendant to an aggregate term of 10 years.
DISCUSSION
I
Defendant claims the trial court erred by finding him ineligible for probation under section 1203.066 and that it abused its discretion by refusing to order a report under section 288.1. We disagree.
Section 1203.066, subdivision (a)(7), prohibits granting probation to a defendant who is convicted of committing a violation of section 288 against more than one victim. In 2004, when defendant committed the offenses, section 1203.066 contained an exception to the ineligibility for probation under this subdivision when all of the following criteria were met: (1) the defendant was a relative of the victim or lived in the victim’s household; (2) a grant of probation was in the best interest of the victim; (3) rehabilitation was feasible and the defendant was placed immediately in a recognized child molestation program; (4) the defendant was removed from the victim’s household; and, (5) no threat of harm to the victim would exist if probation were granted. (§ 1203.066, former subd. (c).)
Section 1203.066 was amended in 2005 and now provides that probation may not be granted under any circumstance to a defendant when it is pled and proven that the defendant committed violations of section 288 against more than one victim. (Stats. 2005, ch. 477, § 5.)
In addition, probation may not be granted to a defendant convicted of lewd or lascivious acts on a child under 14 years without a psychological report concerning the mental condition of the defendant. (§ 288.1.) The report must address the second, third and fourth factors required for an exception to the prohibition against probation in section 1203.066. (§ 1203.066, former subd. (c); see § 1203.066, subd. (d)(3).)
Under section 1203.066, former subdivision (c), a defendant must establish he meets all five criteria for the exception to apply. (People v. Wutzke (2002) 28 Cal.4th 923, 932.) Even then, a grant of probation is not mandatory. (Ibid. fn. 7.) To the contrary, “[t]he sentencing court ‘retains the discretion’ to find the defendant unsuitable for probation and to order imprisonment.” (Ibid.)
In the present matter, the trial court declined to order a report under section 288.1, concluding that even if defendant received a favorable report, the standard probation criteria did not justify a grant of probation. The court acted within its discretion in reaching this conclusion.
Defendant claims the trial court “appears to have been unaware that [he] might well be eligible for probation under section 1203.066.” He relies on a remark made by the court after it stated it would not be inclined to grant probation even with a favorable section 288.1 report, in which it mentioned that, in addition, defendant was not eligible for probation under section 1203.066.
We disagree that the statement regarding defendant’s ineligibility for probation evinces any misunderstanding on the part of the trial court as to its sentencing options. The court was correct that, having been convicted of two counts of section 288 involving multiple victims, defendant was ineligible for probation. (§ 1203.066, subd. (a)(7).) Unless all criteria under section, 1203.066, former subdivision (c), were established, he would remain ineligible for probation. Lest there be any doubt that the court was aware of the grounds for finding an exception, the probation report, which the trial court read and considered, enumerated the criteria in former subdivision (c) as providing an exception to the prohibition against probation.
And as already discussed, the exception set forth in 1203.066, former subdivision (c), only makes a defendant eligible for probation. The trial court’s comments made it clear that, regardless of defendant’s eligibility, the court would not grant him probation under the circumstances. Defendant acknowledges that if “a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492.) Here, even if defendant had established that the trial court was not aware of the exception to the prohibition against probation in section 1203.066, former subdivision (c), it is not reasonably probable the court would have granted defendant probation.
Defendant also maintains the trial court abused its discretion by refusing to order a section 288.1 report because at least two of the criteria required to establish the exception were met (defendant was a relative of the victims or a member of their household and was no longer residing in the home), and a report would have assisted the court in determining whether the other criteria were present.
But, as already noted, even if a trial court determines that all of the criteria under section 1203.066, former subdivision (c), have been met, a grant of probation remains discretionary. And “if after reviewing all the facts, the presentence report and the statements in mitigation and aggravation, the court does not feel that probation is proper, then there is no duty to request a section 288.1 report.” (People v. Thompson (1989) 214 Cal.App.3d 1547, 1549-1550.) As the trial court here concluded it would not grant probation regardless of whether defendant was eligible for probation or there was a positive psychological report, it had no obligation to order such report.
Defendant argues that the failure to order a psychological report to evaluate the criteria under section 1203.066, former subdivision (c), ignored “the concerns of the Legislature” to “allow for a grant of probation for intrafamily offenders.” The legislative concerns addressed in enacting the exception for “an intrafamily molester” were to avoid the “loss of financial support for the family” and to prevent situations in which the victim is “blamed by other family members” or “the victim’s mother . . . abandons[] the victim in favor of the molester.” (People v. Jeffers (1987) 43 Cal.3d 984, 995.) An additional concern was that “[e]ffective rehabilitation is more difficult in prison because the other family members cannot participate.” (Ibid.) We agree with the People that nothing in the record suggests any of these concerns were present with regard to the victims in defendant’s matter, as defendant had not been residing with the girlfriend who was the mother of two of the victims for at least two years and there is nothing in the record to indicate he was providing financial support to any of the victims or that his rehabilitation would require the involvement of the victims.
Defendant claims the trial court relied on “inconsistent factors” by denying probation based on criteria that also could have formed the basis for a finding that he was eligible for probation under section 1203.066. The factors cited by defendant include the victims’ vulnerability and defendant’s violation of a position of trust, which were based on defendant’s presence in the home or his familial relationship to the victims. Defendant claims “[i]t is patently absurd that the same fact would be both necessary for probation eligibility and operate as a factor upon which to deny probation.”
The criteria in section 1203.066, former subdivision (c), that must be established for a defendant to be eligible for probation focus on the safety and well-being of the victim. Needless to say, it is not the victim’s vulnerability or the defendant’s betrayal of a position of trust that makes a defendant eligible for probation, although these factors invariably are present when a defendant molests a family or household member. It is the needs of the victim that may render a grant of probation the best alternative under certain very limited circumstances. There is nothing absurd about considering these factors as they bear on a trial court’s determination whether a particular defendant should be granted probation.
Finally, defendant asserts that other factors cited in the probation report in support of the recommendation to deny probation -- such as defendant’s ability to comply with probation and his future dangerousness -- are “more properly the province of a psychiatric professional than of a probation officer.” To the contrary, the probation report must contain “[a] reasoned discussion of the defendant’s suitability and eligibility for probation” (Cal. Rules of Court, rule 4.411.5(a)(8)(A); further rule references are to the California Rules of Court), and the criteria for making this decision include the ability to comply with reasonable terms of probation (rule 4.414(b)(4)) and the likelihood that the defendant will be dangerous to others if not imprisoned. (Rule 4.414(b)(8).) Yet the sentencing rules are devoid of any requirement that a psychological assessment accompany the probation officer’s report. This is because an opinion concerning a defendant’s ability to comply with terms of probation is well within the province of a probation officer, as is an assessment of future dangerousness. Defendant’s claim to the contrary is without merit.
Accordingly, we conclude the trial court appropriately exercised its discretion by refusing to order a section 288.1 report and denying defendant probation.
II
Defendant contends the fines imposed by the trial court pursuant to section 290.3 violated constitutional proscriptions against ex post facto application of laws. The People concede these fines must be reduced, and we agree.
Section 290.3, subdivision (a), provides that a defendant must pay specified fines for violating offenses listed in section 290 (sexual offender registration). In 2004, when defendant committed the current offenses, the fines were $200 for a first conviction and $300 for each subsequent conviction. Section 290.3 was amended in 2006 to raise the fines to $300 for a first offense and $500 for each subsequent offense. (Stats. 2006, ch. 337, § 18, eff. Sept. 20, 2006.)
Under ex post facto principles, the amount of a fine is determined as of the date of the offense. (See People v. Saelee (1995) 35 Cal.App.4th 27, 30.) In defendant’s matter, the trial court imposed fines of $300 and $500 pursuant to section 290.3 for defendant’s two violations of section 288, subdivision (a). These fines must be reduced to $200 for the first conviction and $300 for the second conviction in accordance with the provisions of section 290.3 at the time defendant committed the offenses.
DISPOSITION
The judgment is modified to reduce the fines imposed pursuant to Penal Code section 290.3 to $200 and $300. As modified, the judgment is affirmed. The superior court is directed to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J., RAYE, J.