Opinion
F060166 Kern Sup. Ct. No. BF128656A
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. OSCAR FRANCISCO ROJAS, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On August 5, 2009, the Kern County District Attorney filed an information in superior court charging appellant Oscar Francisco Rojas as follows: counts 1and 2 - lewd and lascivious conduct with a child under age 14 (Pen. Code, §§ 288, subd. (a), 1192.7, subd. (c)(6)); and counts 3 and 4 - sodomy (§ 289, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise stated.
On August 31, 2009, appellant moved to suppress evidence on the ground the intrusions into appellant's home and his detention and arrest were performed without reasonable suspicion and probable cause (§ 1538.5).
On September 15, 2009, the court conducted a contested hearing and denied appellant's suppression motion as to the officers' initial entry of appellant's home, but granted appellant's motion as to the officers' re-entry of appellant's home and search and seizure of items in appellant's bedroom.
On December 17, 2009, appellant moved for discovery of confidential personnel records of Bakersfield Police Officers Matthew Tramel and Timothy Berchtold. (Evid. Code, § 1043; Pitchess v. Superior Court (1974) 11 Cal.3d 531.) Appellant sought the names, addresses and phone numbers of people who had filed complaints "relating to dishonesty as to the officers making any false statements material to a criminal investigation."
On January 12, 2010, the court granted appellant's request under Evidence Code section 1043 and Pitchess for an in camera hearing with respect to the law enforcement personnel records of Officers Tramel and Berchtold. After conducting an in camera hearing, the court concluded "[t]here is nothing to release in this particular case."
On January 22, 2010, prior to the date set for jury trial, appellant entered into a plea agreement with the prosecution. Appellant pleaded no contest to count 1 in exchange for a maximum term of imprisonment of six years with an indicated sentence of no more than three years. The court agreed to order a mental health evaluation pursuant to section 288.1 and agreed to consider probation. The prosecution agreed to dismissal of the remaining counts (§ 1385).
On February 23, 2010, the court granted appellant's request for a mental health evaluation (§ 288.1) pursuant to the plea agreement.
On April 16, 2010, appellant filed a statement in mitigation and motion for grant of probation. On April 19, 2010, the People filed a written response to appellant's statement and motion.
On April 26, 2010, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to the lower term of three years on count 1. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole. The court ordered appellant to register as a sex offender (§ 290) and awarded 330 days of custody credits.
On April 30, 2010, appellant filed a timely notice of appeal based on the denial of his suppression motion (§ 1538.5).
We affirm.
STATEMENT OF FACTS
Facts Underlying the Substantive Offenses
The following facts are taken from the probation officer's report filed April 26, 2010. On the morning of July 14, 2009, officers were dispatched to a Bakersfield residence in an attempt to locate an 11-year-old missing juvenile known as M.S. Upon arrival, officers contacted one of the residents, who said M.S. was inside one of the back bedrooms. She was located and taken into custody. Officers identified appellant Oscar Francisco Rojas and also detained him.
Officers questioned M.S., who said she ran away from home in June and stayed with several different people until she met and began living with the appellant approximately one week earlier. She knew the appellant was 29 years old and said she told him she was 17. Two days prior, she went to a party with a friend and called the appellant to pick her up. When she arrived at the appellant's residence, she sat on his bed and appellant engaged in intimate touching of her body. The appellant continued to rub his body against hers until she twice told him to stop. He complied and they both fell asleep. M.S. said appellant did not try anything else with her until the night of July 13, 2009, when she went into the bedroom wearing a pair of shorts and a T-shirt. She said the appellant disrobed to his shorts and again engaged in intimate contact with her. M.S. said she began to fall asleep and then felt the appellant climb on top of her and unsuccessfully attempt to engage in sexual conduct.
Officers contacted the appellant, who acknowledged that M.S. told him she was 17 years old. When he first met M.S., she asked if she could stay with him for a few nights and he agreed. The appellant admitted that M.S. slept in his bedroom and claimed on one occasion she began kissing and hugging him. Appellant admitted that he engaged in intimate touching of M.S.'s body but denied that anything else happened. Officers learned that M.S. was a frequent out of control juvenile who had been involved in other sex related investigations. A SART (Sexual Assault Response Team) examination was not performed on M.S. She was subsequently transported to her mother's residence while the defendant was transported to the Kern County jail and booked.
Defense Evidence
The probation officer interviewed appellant via a teleconferencing system on February 3, 2010, and submitted a report. When the probation officer asked whether he committed the offense, appellant told the probation officer, among other things: " 'In reality I didn't have relations with her. We were about to. We were in bed together and at the moment I was gonna penetrate her, I was about to put a condom on but she didn't want me to. I told her I didn't know her or what she could've had, so we didn't do it. The next day she told me she was 17 and that she had nowhere to go, nowhere to sleep and nothing to eat. She stayed that day but nothing happened. My intentions at first were to have sex with her, but then I felt I wanted to help her. She didn't look her age.' "
Facts Underlying the Suppression Motion
Testimony of Officer Matthew R. Tramel
Bakersfield Police Officer Matthew Tramel testified he went to an apartment on Niles Street in 2009 to look for a runaway juvenile named M.S. Officer Berchtold joined Tramel in the search for M.S., who was then age 11. The officers arrived at the apartment complex, a series of small apartments with front doors facing Niles Street. When the two officers arrived at the complex, Tramel contacted a subject at the front door of one of the apartments. Officer Berchtold went to the rear of the apartment at the time Tramel contacted the man in front. The man was sitting on a step of a staircase directly in front of the front door. Tramel asked the man how he was doing. The man nodded his head and said "good." The front door was closed, and Tramel asked him how many people were in the apartment. The man responded by saying "tres" and raising three fingers.
Tramel then asked if there were any females in the apartment and the man answered in the affirmative. Tramel then asked whether the female's name was "[M.]" The man said "yes," opened the front door of the apartment, held the door with one hand, and gestured with the other hand to guide Tramel inside. Tramel radioed Officer Berchtold that he had entered the apartment. Berchtold walked from the exterior of the rear of the apartment and entered the front door a few moments later.
Tramel said he entered through the front door of the two-bedroom apartment and came upon an eight-foot walkway, with the living room to the right and the kitchen straight ahead. Tramel said at a point between the hallway and kitchen, one could see into a bedroom and bathroom. Tramel could see a female lying on the bed. She was covered with a comforter and was located "just off center to the right." Tramel could see the right side of her face and her long hair flowing over the comforter. He believed the female was M.S., based upon a photograph he had seen during a briefing.
Tramel said there were three adult males in the living room at the time he saw the female in the bedroom. Tramel said he and Officer Berchtold made sure the three males did not have any weapons and arranged for the three males to sit on the couch and a bar stool adjacent to the couch. Officer Berchtold then went to the bedroom and contacted M. The three males identified themselves. The subject at the door told Tramel his name was Pedro Rojas. The other two males identified themselves as Oscar and Victor Rojas. Tramel said the television was on and he and the trio watched a sporting event on a Spanish language channel. Tramel said Oscar spoke English and that he and Tramel talked about different sports. Oscar and Victor advised Tramel that they and Pedro lived together. Testimony of Officer Timothy Berchtold
Bakersfield Police Officer Timothy Berchtold testified he and Officer Tramel were dispatched to an apartment on Niles Street on July 14, 2009. The dispatcher received a tip that a missing juvenile was in the apartment complex. Officer Berchtold was familiar with the juvenile from previous contacts. When they arrived at the apartment, Tramel went to the front door and Berchtold went to the exterior rear of the residence. After Tramel made contact with the residents, he radioed Berchtold, who walked from the exterior rear of the apartment and entered through the open front door. Berchtold said Tramel had the three male subjects detained in the living room by the time he entered the front of the apartment. Berchtold could see into one of the bedrooms from the living room. Berchtold identified M.S. on the bed and removed her from the residence. Berchtold placed her in the back of his patrol vehicle. Officer Berchtold said M.S. had a history of being a runaway. M.S. made sexual allegations against Oscar Rojas. Berchtold went to the front of the apartment, advised Oscar Rojas of his Miranda rights in English, elicited waivers of those rights, and asked him questions about M.S.'s allegations.
Appellant informed Officer Berchtold that at some unspecified time he had told M.S. to leave his apartment because it would cause problems for his roommates. During Berchtold's discussion, appellant identified himself with a foreign country identification card and Pedro and Victor Rojas identified themselves verbally. After speaking with M.S. and appellant, Berchtold placed appellant under arrest and seized the blankets, sheets, and some of the clothing in the bedroom of the apartment that M.S. occupied. Berchtold said "[i]t's standard procedure in these types of cases to seize those items because it was known that she was laying in that bed and the offense may have occurred or did occur in that bed and in that bedroom." Berchtold eventually determined from appellant and M.S. that the bedroom was actually appellant's bedroom. Testimony of Pedro Joel Orona Rojas
Pedro Rojas testified he lived in an apartment near Niles and Inyo Streets with Oscar Rojas. On July 14, 2009, Pedro was asleep in his room when police came to their apartment a little after noon. Pedro said the officers yelled outside, entered the apartment, took him out of bed, and handcuffed him. Pedro said the apartment had two bedrooms and Oscar used the other one. At the time the two police officers entered, a girl named M.S. was in the apartment and she was located in Oscar's bedroom. Pedro said he did not give police permission to enter the apartment or to go inside any of the rooms of the apartment. Pedro said he did not speak English. He testified he grew up in Mazatlan, Sinaloa, Mexico and moved to the United States in May 2008.
Pedro said he did not cooperate with the officers when they arrived at the apartment. He said, "They just woke me up by force and they shook me, they put me out by force and they threw me against the wall and handcuffed me." Pedro said he did not meet a police officer at the front door and allow him to enter the apartment. Pedro said he went to the police department later that day and freely and voluntarily spoke to a detective. Pedro said appellant was his brother and Victor Rojas was his first cousin. He also said Victor resided in the apartment with Oscar and himself. Pedro said he and Oscar were handcuffed by police officers but Victor was not. Pedro said Oscar spoke "[a] little" English and acknowledged that Oscar spoke more English than he did. Testimony of Victor Julian Licea Rojas
Victor Rojas testified he lived with appellant and Pedro Rojas in an apartment on Niles Street in early 2009. Victor said he slept in the living room and Pedro and appellant had individual bedrooms. He recalled the police arriving at the apartment while he was outside of the premises. Victor said an officer approached him and said many things in English, but Victor did not understand what was said. Victor testified he did not say anything back to the officer and did not open the apartment door for the officers. Victor said he never advised the inquiring officer that three people lived inside the apartment. Victor claimed the officers opened the closed but unlocked door and walked into the apartment.
Victor said officers asked whether M.S. was in the apartment and Victor signified by saying "yes." However, Victor never opened the apartment door or allowed officers into the apartment to see M.S. Victor acknowledged that M.S. slept in appellant's room and when the officers entered, appellant's bedroom door was open and M.S. was visible on the bed inside. Victor emphasized he never told the officers anything with respect to entry into the apartment. Ruling of the Trial Court on the Motion to Suppress
After hearing the arguments of counsel, the trial court ruled in relevant part:
"I think that the officers walking up or the one officer walking up to the house was allowed to go inside the house. I think factually the brother waving him in was - it's not necessary to use words. There can be a non-verbal indication. I think that was okay. The young lady was found in plain sight. She is, I think, 11 [years of age] the evidence was. She is in a room with three adult men. She has got this history. I think it's okay for the officers to detain the three to see what's going on here.
"They take her out of the room though. [T]he testimony is she told them she had ... contact of a sexual nature .... The evidence is that she made statements about sexual allegations involving the defendant. The officer then went back to talk to the defendant, who was out of the residence when he talked to him. [¶] ... [¶] "I think that you are okay as far as the initial entry, and … a statement made by the defendant was under Miranda. So even if ... that entry is somehow unjustified, I think the Miranda warning would attenuate that. So I think your statement is okay. It's not subject to suppression. ... But certainly nothing the young lady says is suppressed. So it really comes down to the whatever was seized inside the apartment is where we are at as far as being suppressed or not. What gives the officers the right to go back inside the residence? [¶] ... [¶] "… I think the officers needed a search warrant to go back in … to go back inside the residence. They were not given consent to seize anything. They were only given consent to look for her. They found her. The purpose of the consent was over. "So what's suppressed is the items of evidence located on that second search or the second entry and anything that flows from that.… But his [appellant's] statement to the officer outside the apartment is not suppressed. Neither is anything she [M.S.] said."
DISCUSSION
I. THE TRIAL COURT DID NOT ERRONEOUSLY DENY THE DEFENSE MOTION TO SUPPRESS EVIDENCE BASED ON LACK OF CONSENT TO ENTER THE PREMISES
Appellant contends his section 1538.5 motion should have been granted because no consent to enter and search the premises was given.
A. Appellant's Contention
Appellant argues there is no substantial evidence to sustain the court's conclusion that the officer was waved into the premises:
"The officer stated that Pedro was outside and waved him in. In fact Pedro was asleep in his bed and rousted by police. [Citations.] Victor was outside, and denied that he waved Tramel into the residence. [Citation.] There was no reason to disbelieve either of these witnesses. The courtAppellant further contends the officer did not have a reasonable belief of common authority to validate an entry nor did the officer have a reasonable belief that the male outside had any other basis to consent to entry.
apparently decided the credibility contest based on the officer's status, which belies the reality that the officer had been placed on the defensive to justify the entry and subsequent arrest, inside a residence.… "Even assuming, arguendo, Tramel was waved in, it was unreasonable to assume that the male subject had the authority to do so. In this case, the officer's belief in the validity of the male subject's consent was not objectively or subjectively reasonable. In the instant case the officer could not have believed that he had acquired consent from the male subject outside, whom he had identified as Pedro, because he did not ask him if he lived there, and there was no indication that the officer had any knowledge regarding the occupants of the building. The male subject who was actually outside, Victor, did not tell the officer that he could enter and did not wave him in. Even if the Spanish-speaking male obliged the officer by opening the door, there was no basis for the officer to have assumed that this person had any authority to do so or that the male was simply obliging the officer's forceful demeanor."
B. Applicable Law
Section 1538.5 provides a defendant may move for return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a warrantless search or seizure on the ground the search or seizure was unreasonable. The proper standard of review was outlined by the Supreme Court in People v. Leyba (1981) 29 Cal.3d 591:
"In People v. Lawler (1973) 9 Cal.3d 156, 160 ..., we discussed the two- step process by which a superior court rules on a motion to suppress evidence under section 1538.5, and the different standard by which an appellate court reviews each of those steps. In the first step the trial court must 'find the facts' relating to the challenged search or seizure: e.g., it must decide what the officer actually perceived, or knew, or believed, and what action he took in response. These are traditional questions of fact, and the statute vests the superior court with the power to decide them. (Pen. Code, § 1538.5, subd. (i).) Accordingly, we reaffirmed in Lawler (at p. 160) that for the purpose of finding those facts 'the power to judge the credibility of the witnesses, resolve any conflicts in testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all
presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.'
"No less important, however, is the second step of the process. As we observed in Lawler, 'the trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.' (Ibid.) Because 'that issue is a question of law,' the appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision thereon. Rather, we explained, in such review it is 'the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.' (Ibid.) On that issue, in short, the appellate court exercises its independent judgment." (People v. Leyba, supra, 29 Cal.3d at pp. 596-597, fn. omitted. See also People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224; People v. Cantor (2007) 149 Cal.App.4th 961, 965.)
"Consent to a search is a recognized exception to the Fourth Amendment's warrant requirement. [Citation.] The prosecution bears the burden to prove that a warrantless search was within the scope of the consent given. [Citation.] 'A consensual search may not legally exceed the scope of the consent supporting it. [Citation.]' [Citation.] 'The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]" [Citation.] 'Whether the search remained within the bounds of the consent is a question of fact to be determined from the totality of circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court's determination.' [Citation.]" (People v. Cantor, supra, 149 Cal.App.4th at p. 965.)
C. Analysis
Appellant essentially contends there was insufficient evidence to sustain the trial court's conclusion that "the officer was waved into the premises." In California suppression hearings, it is the duty of the trial court to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence and draw factual inferences. (In re Arturo D. (2002) 27 Cal.4th 60, 77.)
We have summarized the facts elicited at the suppression hearing in detail above. The trial court reasonably concluded from Officer Tramel's testimony that the individual outside the apartment indicated the number of occupants within, opened the door for Officer Tramel, and gestured for him to enter. Appellant nevertheless contends "there was no basis for the officer to have assumed that this person had any authority to do so or that the male was simply obliging the officer's forceful demeanor." Valid consent may be obtained from the sole owner of property or from a third party who possesses common authority over the property. (In re Scott K. (1979) 24 Cal.3d 395, 404.) To establish consent, the prosecution was required to prove the officers reasonably and in good faith believed the male outside the apartment had the authority to consent to their entry into the apartment. (People v. Ledesma (2006) 39 Cal.4th 641, 703; People v. Bishop (1996) 44 Cal.App.4th 220, 237.) According to the testimony of Officer Tramel, the male at the front door - by word and gesture - evidenced an apparent knowledge of the occupancy of the apartment, particularly the presence of M.S. He opened the front door to the apartment and gestured with his right hand for Officer Tramel to enter the premises. Testifying in support of the suppression motion, Pedro and Victor Rojas essentially maintained the officers forced entry into their apartment. The power to judge the credibility of the witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences, is vested in the trial court. (People v. Middleton (2005) 131 Cal.App.4th 732, 738.) From the entirety of the testimony, the trial court as the finder of fact could reasonably conclude that Officer Tramel believed the male outside the apartment possessed the authority to consent to an entry by police officers.
The trial court acted within its discretion in denying the motion to suppress relating to the officers' initial entry into the apartment on Niles Street.
II. THE POLICE HAD PROBABLE CAUSE TO ARREST APPELLANT
Appellant contends reversal is required because the police did not have probable cause to arrest him.
A. Appellant's Specific Contention
Appellant contends the prosecution failed to introduce evidence to show that appellant had been accused of sexually molesting M.S. or had contact with M.S. prior to the arrival of officers at his residence. He acknowledges that police suspected the minor was staying at the house and found the minor sleeping on his bed, by herself, when they entered the apartment. He argues:
"The minor was escorted out, and reportedly make 'allegations of a sexual nature' regarding appellant. Appellant was subsequently Mirandized in English, thereafter making unspecified admissions, and then was arrested.
"As defense counsel argued below, 'allegations of a sexual nature' are too inspecific to suggest the commission of a felony. The asserted admissions are likewise inspecific. The minor's ambiguous claims run[] the gamut of behavior that is not illegal, such as making sexual jokes or comments, to misdemeanors and ultimately felonies. There was no specification of any act that would have necessarily suggested the commission of a felony. As such, appellant's arrest was illegal."
B. Applicable Law
"An arrest is valid if supported by probable cause. Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1037.) The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. That belief must be particularized with respect to the person to be seized. (People v. Thompson (2006) 38 Cal.4th 811, 818.) Sufficient probability is the touchstone of reasonableness under the Fourth Amendment. "Probable cause is measured by an objective standard based on the information known to the arresting officer, rather than a subjective standard that would take into account the arresting officer's actual motivations or beliefs. [Citation.]" (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045.)
C. Analysis
Officer Berchtold testified Officer Tramel went to the front door of the apartment and he went to the exterior rear of the apartment in case subjects attempted to depart through the back windows. Tramel made contact with the apartment occupants and then radioed Berchtold to come to the front of the premises. Berchtold testified he reached the front of the apartment about 30 seconds later and entered through the open door. Berchtold said "everybody was already inside" by the time he entered the open front door. Berchtold said the living room was located about four or five feet from the front door and had a vantage point into the bedrooms of the apartment. He saw M.S. in plain sight and she was lying on a bed in one of the bedrooms. Berchtold was able to identify her. He removed her from the premises and placed her in the back of his patrol vehicle. Berchtold said she was a missing juvenile, had a prior history of being a runaway, and he felt she would be at risk to run away again. While she was in the patrol vehicle, Berchtold took a statement from M.S. She made sexual allegations involving appellant. After obtaining that information, Berchtold contacted appellant on the front porch of the apartment. Berchtold read appellant his Miranda rights in the English language. Appellant said he understood each advisement and agreed to speak with the officer. Berchtold advised appellant of the allegations of M.S. In responding to the allegations, appellant said he told M.S. to leave the apartment because her presence would cause problems for his roommates. After speaking with M.S. and then appellant, Officer Berchtold placed appellant under arrest. When asked for the basis of the arrest, Berchtold said the arrest was "[b]ased on the statements and admissions. Based on the statements of [M.S.] and the allegations of appellant."
"Cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 410.) Information provided by a crime victim alone can establish probable cause if the information is sufficiently specific to cause a reasonable person to believe that a crime was committed that that the named suspect was the perpetrator. (Gillan v. City of San Marino, supra, 147 Cal.App.4th at p. 1045.) Here, Officer Berchtold saw M.S., an 11-year-old runaway, lying in appellant's bed. After 11-year-old M.S. left the apartment, she made sexual allegations that implicated appellant. In our view, the facts known to Officer Berchtold would have led a person of ordinary care and prudence to entertain an honest and strong suspicion that appellant was guilty of a crime.
The police had probable cause to arrest appellant.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING PROBATION
Appellant contends the trial court abused its discretion by denying his request for probation.
A. Facts Relating to Probation
1. Facts from the Report of the Probation Officer
The facts underlying the April 26, 2010, probation officer's report, based upon a report of the Bakersfield Police Department, are set forth in the statement of facts above.
2. Facts from the Report of Luis Velosa, M.D.
On February 24, 2010, the superior court issued an order directing Luis Velosa, M.D. to conduct an evaluation of appellant's mental condition under section 288.1 to determine his present mental condition, his potential danger to the health or safety of others, and his amenability to a grant of probation. On March 12, 2010, Dr. Velosa examined appellant at the Lerdo Detention Facility. Dr. Velosa prepared a written letter report of the examination on March 13, 2010. On March 22, 2010, Dr. Velosa filed the report with the superior court finding appellant free from any type of psychosexual disorder, finding him not to be a danger to the health or safety of others, and finding him amenable to a grant of probation.
Appellant told Dr. Velosa he had not been drinking for a long time but came home from work one night and found his brother, cousin, and neighbor engaged in drinking.Appellant spoke to his sister and mother on a telephone call to Mexico and then joined his brother, cousin, and neighbor for a drink. The three other men, who had been drinking, started telling appellant about a woman named M who wanted to come to their apartment. Appellant said he owned a car and the other three men wanted to go as a group to pick her up. Appellant told the others he could not drive and pick her up because he had been drinking. The three other men began pressuring him to pay for a taxi to pick her up and bring her to their apartment. According to the three men, M.S. said she would have sex with appellant for 20 minutes if he paid for her taxi.
We note at the outset that appellant's recitation of facts to Dr. Velosa in March 2010 is not entirely consistent with the probation officer's February 2010 recitation of facts drawn from the report of the Bakersfield Police Department.
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Appellant said the woman arrived by taxi at midnight and he paid the fare. Appellant said, "She arrived very well dressed up with a lot of makeup and it never occurred to me that she was a minor." M.S. and appellant went to his bedroom and started touching one another. When appellant tried to put on a condom, she said she did not like condoms and they did not engage in sexual intercourse. M.S. said she was coming from Mexico and did not have any place to stay. Appellant invited her to stay at his apartment and he and M.S. spent the whole night in bed and fell asleep. Before they fell asleep, M.S. said she was 19 years old. The next day, appellant awakened at 8:00 a.m. and went to work. He returned at 7:30 or 8:00 that night, and M.S. said she was going to turn age 18 in about one week. Appellant gave his cousin and M.S. some money and they took his car and went to get something to eat. At 9:00 that night, appellant went to sleep and M.S. joined him, but they did not have sex. The next day was appellant's day off from work and he began housecleaning. According to Dr. Velosa, appellant said, "I started doing the laundry and about nine o'clock in the morning I looked out the window and I saw my cousin being handcuffed by a cop." Appellant opened the door and asked what was wrong. One of the officers asked about the girl. Appellant advised the officers that she was asleep. Appellant called M.S., but she did not want to come outside. Appellant said an officer came in the house, roughly took her out of the house, and then took her to a police car.
3. Facts from the Statement in Mitigation
On April 16, 2010, appellant filed a statement in mitigation and motion for grant of probation. Referring to the report of the probation officer and Dr. Velosa's report, appellant's counsel cited the following facts favoring a grant of probation: (1) no weapon was involved in the case; (2) Dr. Velosa's evaluation showed no propensity toward committing sexual offenses; (3) the victim was sophisticated beyond her age and appellant did not lure or accost her; (4) appellant had no prior criminal record; (5) appellant was willing to comply with the terms of probation; (6) appellant was likely to comply with terms of probation given his record of steady gainful employment, ties within the community, and the absence of mental illness; (7) a state prison sentence for a first time offender such as appellant would not address the root cause of criminality; (8) a felony conviction would make appellant's future employment extremely difficult; (9) appellant was forthcoming to arresting police officers and acknowledged his wrongdoing to Dr. Velosa; and (10) Dr. Velosa concluded appellant did not fit the profile for pedophilia or sexual predator and did not constitute a present menace to society.
B. Analysis and Recommendation of the Probation Officer
As to probation eligibility, the probation officer noted there were no statutory provisions limiting or prohibiting a grant of felony probation to appellant. However, the probation officer noted appellant could not be granted probation until a psychological evaluation was completed pursuant to section 288.1.
As to probation suitability, the probation officer stated:
"The defendant is considered an unsuitable candidate for felony probation. To his credit, the defendant has no prior arrest or criminal convictions and he has acknowledged wrong doing. However, the drastic age difference between himself and the child victim is of great concern. While it is unclear if the defendant knew the victim's actual age there is no doubt he took advantage of a vulnerable minor child on more than one occasion."
As to sentencing justification, the probation officer stated: "Although the defendant pled for a Lid of six years, the Court indicated it intends to sentence the defendant to the low term of three years; therefore, a recommendation reflecting the Court's intention will be recommended."
C. Ruling of the Trial Court
The trial court denied appellant probation on April 26, 2010, stating in relevant part:
"The court thinks that probation's analysis is very, very accurate and I will incorporate probation's comments to the effect that while to the defendant's credit he has no prior arrest or criminal convictions and that he acknowledged wrongdoing in this particular case at an early stage of the criminal process, the court has great concerns for the drastic difference in age between the victim and the defendant.
"As has been pointed out by the People, the victim was 11. Even accepting the well reasoned ... and articulate comments by [defense counsel] Mr. Lee, the court finds that the variation in the ability to bargain with one another socially or physically places the victim as such a disadvantage that these laws are designed to protect a victim even from herself.
"The court looks at sentencing from a number of prongs first, as ... Miss Allen [deputy district attorney] points out, punishment. [¶] Punishment for the appropriate act should be somewhat related and reasonable.
"There is, as Mr. Lee has pointed out, rehabilitation. [¶] As to the rehabilitation, Mr. Rojas, through his acceptance of this being an unlawful act indicates a certain amenability to rehabilitation.
"But, third, there is the issue of deterrence as to future conduct by Mr. Rojas and other members of the community.
"It is unfathomable by the court to consider that any adult male could be alone with an 11-year-old female not related to that person, and not to be concerned, put on notice, or appalled by the potential for abuse, misuse, and this type of activity.
"While adopting Mr. Lee's comments that the discussion about the victim's prior activities do not mitigate this particular offense, it is recognized by the court that the victim has been placed in this position before and is using this to manipulate or manage her environment.
"Without individuals willing to take advantage of that, this victim might be forced into a situation where society could assist, help, or benefit her in no small way.
"I will find that the circumstances in mitigation that he has no prior criminal history and that he entered a plea at an early stage of the criminal proceedings far outweigh the circumstances in aggravation to warrant the low term.
"I will find that based on the fact that he did take advantage of a vulnerable minor child is sufficient for the court to find that he is an unsuitable candidate for a grant of felony probation."
D. Appellant's Contentions on Appeal
Appellant generally contends the trial court abused its discretion by denying probation. He specifically maintains (1) the court employed circular reasoning "centering on the fact that appellant had had sex with a minor, which was the crime of which he was convicted"; (2) the court relied on the probation officer's analysis, incorporated that analysis into his ruling, and the probation officer's report "was not a considered reflection of its own investigation, but rather a deferral to the court, an apparent misunderstanding of what the court meant when it said it would consider a low term of three years [at the time appellant changed his plea];" (3) minor was "apparently mature beyond her actual age in terms of knowledge and experience with sex" and his involvement in the situation "appears to have been not something that he was out seeking, but the recipient of by happenstance;" and (4) the trial court failed to perform its function of weighing evidence and exercising its discretion in making a discretionary ruling.
Some of appellant's contentions go to the adequacy of the probation report and others go to the adequacy of the court's weighing process in arriving at a sentencing choice. We will briefly review the law governing denials of probation and the contents of probation reports and then address appellant's contentions.
E. Law Governing Denial of Probation
All defendants are eligible for probation, in the discretion of the sentencing court, unless a statute provides otherwise. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) The grant or denial of probation is within the trial court's discretion. The defendant bears a heavy burden in attempting to show an abuse of the trial court's discretion. "In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.) "[I]n determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.) " '[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation....' " (People v. Rodriguez (1990) 51 Cal.3d 437, 443, quoting People v. Lippner (1933) 219 Cal. 395, 400.)
A single aggravating factor is sufficient to justify a sentencing choice. (People v. Castellano (1983) 140 Cal.App.3d 608, 615.) However, the simple fact a victim is a minor cannot be used as a factor in aggravation where the victim's minority is an element of the offense. Nevertheless, a child victim's particular vulnerability can be used in appropriate circumstances, even if his or her age is an element of the offense. (People v. Robinson (1992) 11 Cal.App.4th 609, 615, disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 353-356.) The decision to grant or deny probation requires consideration of all of the facts and circumstances of the case. (People v. Weaver, supra, 149 Cal.App.4th at p. 1312.) The sentencing judge should be guided by statutory statements of policy, the criteria in the rules of court, and the facts and circumstances of the case. (Cal. Rules of Court, rule 4.410(b).) Criteria affecting the decision to grant or deny probation include facts relating to the crime and to the defendant. (Cal. Rules of Court, rule 4.414.) Facts relating to the crime include the vulnerability of the victim. (Cal. Rules of Court, rule 4.414(a)(3).)
F. Law Governing Adequacy of Probation Report
"The most prominent role in informing the court of defendant's history and available sentencing options in pronouncing judgment is played by the probation department. The probation department is not an agent of either party but rather reports to the court itself. (Pen. Code, § 1203, subd. (b)(1), (2)(A).) Thus, the Penal Code's provision for probation reports before sentencing anticipates that trial courts will be informed primarily through a neutral source rather than partisan experts." (People v. Stuckey (2009) 175 Cal.App.4th 898, 912-913.)
A probation report is required following every felony conviction in this state. (§ 1203c.) California Rules of Court, rule 4.411.5 details the contents of presentence reports and contemplates that police reports will be used to prepare crime summaries contained therein. (Cal. Rules of Court, rule 4.411.5(a)(2), (7)(A).) Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report. (§§ 1170, subd. (b), 1203, subd. (b)(2)(D), 1203d; Cal. Rules of Court, rule 4.437(e); see People v. Scott, supra, 9 Cal.4th at pp. 350-351.)
Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his level of culpability when selecting an appropriate sentence. (People v. Valdivia (1960) 182 Cal.App.2d 145, 148; § 1203, subd. (b)(3); Cal. Rules of Court, rule 4.411(d).) The doctrine of waiver applies to the trial court's failure to properly make discretionary sentencing choices. (People v. Scott, supra, 9 Cal.4th at p. 353.) A decision to grant or deny probation is a discretionary sentencing choice. Moreover, the failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 233-234.)
G. Analysis
1. Adequacy of Probation Report
The probation officer's report discussed appellant's eligibility for probation and suitability for probation. The deputy probation officer expressed the following sentencing justification in her report: "Although the defendant pled for a Lid of six years, the Court indicated it intends to sentence the defendant to the low term of three years; therefore, a recommendation reflecting the Court's intention will be recommended." On review, appellant characterizes the report as "not a considered reflection of [the probation officer's] own investigation, but rather a deferral to the court." Appellant essentially claims the report of the probation officer is defective. However, appellant made no such contention in the superior court.
The Supreme Court has observed: "As a practical matter, both sides often know before the hearing what sentence is likely to be imposed and the reasons therefor. Such information is contained in the probation report, which is required in every felony case and is generally provided to the court and parties before sentencing. [Citations.] In anticipation of the hearing, the defense may file, among other things, a statement in mitigation urging specific sentence choices and challenging the information and recommendations contained in the probation report. [Citation.]" (People v. Scott, supra, 9 Cal.4th at pp. 350-351.) Appellant filed a combined statement in mitigation and motion for grant of probation on April 16, 2010, but appellant's statement did not challenge the information in the probation report. A failure to object to a defective probation report in the superior court, as here, waives the claim on appeal. (People v. Welch, supra, 5 Cal.4th at pp. 234-235.)
2. Adequacy of Sentencing Proceedings
We note the Supreme Court's rule that "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott, supra, 9 Cal.4th at p. 356.) The Supreme Court has also held: "As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a ' "discretionary sentencing choice[]." ' [Citations.] " (In re Sheena K. (2007) 40 Cal.4th 875, 881.) Our review of the reporter's transcript of the April 26, 2010, sentencing hearing does not reveal a challenge to the trial court's articulation of supporting reasons. Absent such a challenge, his contention on appeal must be deemed waived.
Assuming that he has somehow preserved his contention, we examine the substantive adequacy of the sentencing proceedings. We note the court read and considered the 12-page probation officer's report, Dr. Velosa's report pursuant to section 288.1, and the appellant's combined statement in mitigation/motion for grant of probation. The court further heard the extensive arguments of counsel before deciding whether to grant or deny probation and to impose sentence. The deputy probation officer completed her report in February 12, 2010, and Dr. Velosa completed his report of the section 288.1 examination of appellant on March 13, 2010. Although the probation officer's report preceded the section 288.1 report, the court was aware of both reports and read and considered them together.
A review of the record does not support appellant's claim that the trial court failed to exercise its discretion. Clearly, the court characterized the probation department's analysis as "very, very accurate" and said it would "incorporate probation's comments." However, the Court's statements about the probation report did not constitute an abdication of the judicial duty to exercise discretion in this situation. The court acknowledged it had received, read, and considered relevant documents, including the probation officer's report, Dr. Velosa's report, the appellant's statement in mitigation, and the People's response to that statement. The court noted that it looks at sentencing from the perspectives of punishment, rehabilitation, and deterrence of future criminal conduct. The court acknowledged the arguments of counsel and noted that circumstances in mitigation "far outweigh[ed]" the circumstances in aggravation. However, the court ultimately concluded the fact that appellant took advantage of "a vulnerable minor child" was a sufficient basis for the court to find he was unsuitable for a grant of felony probation. In considering a grant of probation, the nature of the offense is among the primary considerations for the sentencing court. (§ 1202.7; People v. Orabuena (2004) 116 Cal.App.4th 84, 100.)
In reviewing a trial court's determination whether to deny probation, it is not the function of the appellate court to substitute its judgment for that of the trial court. The function of the appellate court is to determine whether the trial court's order is arbitrary or capricious or exceeds the bounds of reason considering all the circumstances. (People v. Weaver, supra, 149 Cal.App.4th at p. 1311.) Here, the superior court effectively determined that the nature of the offense made appellant unsuitable for probation. The superior court acted within the broad discretion granted by California law and reversal of the order denying probation is not required. IV. THE TRIAL COURT PROPERLY CONDUCTED AN IN CAMERA REVIEW OF POLICE PERSONNEL FILES UNDER PITCHESS
Appellant requests this court to review the sealed in camera hearing of his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
A. Procedural History of Pitchess Motion
On December 17, 2009, appellant moved for discovery of the personnel records of Officers Tramel and Berchtold under the authority of Evidence Code section 1043 and Pitchess. Appellant sought to determine if anyone had filed complaints against the officers relating to dishonesty or the making of false statements material to a criminal investigation. On December 28, 2009, the People filed written opposition to the motion. On January 12, 2010, the court conducted a contested hearing and granted appellant's motion for an in camera Pitchess hearing with respect to "false testimony" on the part of Officers Tramel and Berchtold, if any. Brad Singleton, the designated representative of the custodian of records, appeared at the in camera hearing and brought files containing complaints and written investigations of complaints against Officers Tramel and Berchtold. The judge reviewed the files and, at the conclusion of the in camera hearing, stated there was nothing to release to the defense. The court directed that the reporter's transcript of the in camera review hearing be sealed.
On January 18, 2011, appellate counsel moved to augment the record on appeal to include the sealed reporter's transcript of the January 12, 2010, in camera Pitchess hearing. Counsel also requested this court to review the transcript of that hearing and determine whether further appellate briefing was required. On January 21, 2010, this court ordered the record on appeal to be augmented to include "[a]ll documents reviewed in camera on January 12, 2010, relevant to the Pitchess motion as well as any reporter's transcript and the court's ruling ...." Our order further directed that all applicable records should be filed under seal and transmitted to this court only. On February 8, 2011, the superior court filed the sealed reporter's transcript of the January 12, 2010, Pitchess hearing and a sealed box containing the applicable records with this court. The box included a certification from the Office of the Bakersfield City Attorney that the box contained photocopies of all documents reviewed in camera by the superior court on January 12, 2010.
B. Conclusion
The Supreme Court has outlined the proper procedure and conclusion in this appeal:
"A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion. [Citation.] Consistent with customary procedure, the records have been made part of the record on appeal but have been sealed, and appellate counsel for defendant ha[s] not been permitted to view them. (See Cal. Rules of Court, rule 33.5(b)(2).) As we have done in similar situations ... we independently have examined the materials in camera, and conclude that the trial court did not abuse its discretion in refusing to disclose the contents of either officer's personnel files." (People v. Hughes (2002) 27 Cal.4th 287, 330 (Hughes).)
The record in the present case is adequate to permit meaningful appellate review. The record includes a full transcript of the January 12, 2010, in camera Pitchess proceeding and photocopies of the personnel records the court reviewed. The trial court concluded there were no discoverable materials as to Officers Tramel and Berchtold. We have independently reviewed the transcript and records provided under seal and conclude that the trial court did not abuse its discretion in ruling on defendant's Pitchess motion. (People v. Prince (2007) 40 Cal.4th 1179, 1285; Hughes, supra, 27 Cal.4th at p. 330.)
DISPOSITION
The judgment is affirmed.
Poochigian, J.
WE CONCUR:
Cornell, Acting P.J.
Franson, J.