Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF121085A, Kenneth C. Twisselman, II, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
Appellant Jose Eduardo Solorzano was charged with one count of continuous sexual abuse of a child under the age of 14 (his niece, J.L.A.) (a violation of Pen. Code, § 288.5, subd. (a)) and two counts of committing a lewd act on a child under the age of 14 (his niece, J.A.). The information also alleged that Solorzano had committed the offenses against more than one victim.
All further references are to the Penal Code unless noted.
Solorzano was tried by a jury and found guilty of the first count and not guilty of the remaining two counts. The jury found true the multiple-victim allegation of count one, but found not true the multiple-victim allegations of counts two and three. Due to the internal inconsistency related to the multiple-victim allegations, the court dismissed the multiple-victim allegation in count one in the interest of justice.
After finding Solorzano statutorily eligible for probation, the trial court considered but denied Solorzano’s request for probation. It sentenced Solorzano to the middle term of 12 years in state prison. The court also imposed a number of fines, including a $100 fine pursuant to Government Code section 70372 and a $40 fine pursuant to section 1465.7, both of which are challenged on appeal.
Factual Summary
In 2007, J.A. reported to a school counselor that her uncle, Solorzano, had abused her by touching her inappropriately when she was 12 or 13 years old. When J.L.A. learned of the report, she reported that Solorzano had had sexual intercourse with her on a number of occasions when she was nine years old and her family was living with her grandparents, where Solorzano also lived. The last incident of abuse occurred when J.L.A. was 10 years old. At the time of trial, J.L.A. was 18 years old.
During a pretext phone call between J.L.A. and Solorzano, J.L.A. asked Solorzano if he had molested J.A. When Solorzano denied that he had touched J.A., J.L.A. asked how she could believe him since he had molested her. She asked Solorzano why he had done it. Solorzano responded, “I was a stupid ass hole.” Solorzano asked J.L.A. to forgive him if he had hurt her. Solorzano also told J.L.A. that if she was asked if he had molested her that she should “just deny it … because a lot of bad things can happen.”
When interviewed by police, Solorzano initially denied that he ever acted inappropriately with either girl. Then, after being confronted with the recorded phone conversation with J.L.A., he admitted to having sexual intercourse with J.L.A. two or three times. He also claimed that he felt “[v]ery bad” afterward, “like [his] heart was opening.”
At trial, Solorzano denied molesting either J.L.A. or J.A. He claimed he confessed to molesting J.L.A. because he was sleepy and did not know what he was saying. The defense also offered testimony of family members that Solorzano had never acted inappropriately with any young girls. Solorzano’s mother testified that J.A. had threatened to make up a story about her uncle because Solorzano had disciplined J.A. for acting aggressively. She also testified that J.L.A. was easily influenced by J.A. Other relatives testified that J.L.A. and J.A. were dishonest.
Discussion
I. Denial of probation
At sentencing, the probation officer recommended the middle term and claimed that Solorzano was statutorily ineligible for probation. The prosecutor argued for the aggravated term. Defense counsel argued for the mitigated term. Each position was supported by reasoned argument, which the trial court carefully considered. The trial court heard the arguments of counsel and considered all the documents filed relating to the issue. (See People v. Birmingham (1990) 217 Cal.App.3d 180, 185 [decision to grant or deny probation requires consideration of all facts and circumstances of case].) The court concluded that Solorzano was statutorily eligible for probation. After identifying one factor in mitigation, Solorzano’s lack of criminal history, and one factor in aggravation, Solorzano’s violation of a position of trust, the court continued:
“And I do agree with probation’s analysis that [Solorzano] is an unsuitable candidate for a grant of felony probation. He did have sexual intercourse with his niece who was approximately nine years old at the time of the incident. And I do agree with probation’s analysis that this conduct establishes that he is not only a danger to his own family members but to society as a whole.
“I am also considering the factors under Rule of Court Rule 4.414. And it is significant to the Court, considering the facts related to the defendant, that one of the factors is whether the defendant is remorseful. And nothing that I have seen shows me that this defendant is remorseful. And I do believe that the defendant’s willingness to acknowledge that he committed the crime, that he was remorseful for the crime, that he is motivated to rehabilitate, that would be a significant factor that the Court would consider in deciding whether he is suitable for probation. And I include that analysis in my finding that he is not suitable for probation.”
After denying the request for probation, the court sentenced Solorzano to the middle term of 12 years.
Solorzano concedes that we will not set aside a discretionary decision of the trial court unless he can show that the trial court abused its discretion. The trial judge has discretion to make numerous sentencing choices, including whether to grant or deny probation. In making these choices, the trial court need only state its reasons in simple language, identifying the primary factor or factors that support the exercise of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851; Cal. Rules of Court, rule 4.406(a).) When we review a trial court’s decision to deny probation, we may not substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order denying probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) A defendant bears a heavy burden when attempting to show an abuse of that discretion. (Ibid.) In this case, the court stated its reasons for denying probation. What Solorzano argues is that the record does not contain sufficient facts to support the court’s reasons or support a finding that he is a danger to the community and that he failed to show remorse. This is the basis for his assertion that the trial court abused its discretion.
This case is similar to People v. Golliver (1990) 219 Cal.App.3d 1612, 1620-1621. In Golliver, the trial court gave two reasons for denying probation: (1) the nature and seriousness of the offense, and (2) the defendant’s extensive criminal history. The defendant argued on appeal that the trial court abused its discretion because its reasons were not supported by the evidence and pointed to evidence supporting contrary conclusions than those the trial court reached. The court in Golliver rejected the defendant’s assertions and concluded that, “so long as the record discloses facts which appropriately support those reasons, the trial court’s choice will be presumed to have been made on the basis of those facts-notwithstanding the disclosure in the record of other facts which would not serve as appropriate support for the sentencing choice.” (Id. at pp. 1620-1621.)
The situation is the same here. There are facts that could be argued to support a finding that Solorzano is not a danger to society, such as the long interval between his offense and trial, the lack of any known recent victims, and his score of zero on the STATIC 99 test. There are also statements made by Solorzano to J.L.A. and police that suggest remorse, e.g., “If I hurt you, forgive me mija, ” and “I felt, uh, like my heart was opening.”
However, there are also facts in the record that support the trial court’s stated reasons for denying probation. As the prosecutor argued at sentencing, Solorzano’s conduct went beyond the basic elements of the offense; he had full sexual intercourse with his nine-year-old niece. The offense was of a substantial nature involving a very young and vulnerable victim. This poses serious concerns about Solorzano’s threat to the community.
Additionally, although Solorzano’s early admission to J.L.A. that he had molested her and his statements of regret are in the record, his sincerity was severely discredited by his later behavior and his attempts to get J.L.A. to lie in order to protect him. When approached by police, he denied molesting J.L.A. until he was confronted with the recorded pretext phone call. At trial, Solorzano adamantly denied that he molested J.L.A. He offered unbelievable reasons for his earlier admissions, claiming that, during the pretext phone call, he was “halfway asleep, ” and that during his police interview he “was tired” and “just wanted to sleep.”
Instead of accepting responsibility for his offense, Solorzano’s defense at trial was to suggest that J.L.A. was dishonest and made up her claim. The trial court presumably concluded that Solorzano is more concerned about escaping the consequences of his behavior than about the wellbeing of his victims or his own rehabilitation. This attitude does not express remorse or a desire for rehabilitation. We conclude there is ample support in the record for the trial court’s stated reasons for denying probation. “Probation is not a matter of right but one of grace and clemency. [Citations].” (People v. Dandy (1951) 106 Cal.App.2d 19, 21.)
Solorzano and respondent spend considerable effort addressing whether the trial court could have but failed to exercise its discretion under section 1203.066, subdivision (c). Section 1203.066 renders a defendant convicted of certain enumerated sexual offenses, including a violation of section 288.5, ineligible for probation in certain circumstances, the pertinent one here being that there has been substantial sexual conduct with a victim under the age of 14 years. (§ 1203.066, subd. (a)(8).) The section requires a jury finding that substantial sexual conduct has occurred. (§ 1203.066, subd. (c); see also People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247 [discussing former versions of statute applicable at time of Solorzano’s offense].) There was no such finding in this case.
The probation officer did initially report that section 1203.066, subdivision (a)(8), made Solorzano statutorily ineligible for probation. At sentencing, however, all parties agreed that this section did not apply. The court stated that Solorzano was statutorily eligible for probation and that it would exercise its discretion in considering whether Solorzano was an appropriate candidate for probation. Under these circumstances, there was no need for the trial court to consider whether any of the exceptions to section 1203.066, subdivision (a)(8), listed in section 1203.066, subdivision (c), applied.
II. Penalty assessments
Solorzano further contends that the trial court erred in imposing penalty assessments pursuant to section 1465.7 (Stats. 2002, ch. 1124, §§ 46, 63, effective date Sept. 30, 2002) and Government Code section 70372 (Stats. 2002, ch. 1082, § 4, effective Jan. 1, 2003) because neither statute existed at the time the offense was committed. Respondent concedes that the imposition of the penalty assessments authorized by these two statutes would violate the constitutional prohibition of ex post facto legislation. We agree. (See People v. High (2004) 119 Cal.App.4th 1192, 1197, fn. 2.) These two penalty assessments will be ordered stricken. Since the minute order and abstract of judgment do not record the imposition of these penalties, there is no need to order that the abstract of judgment be corrected.
DISPOSITION
The $100 fine imposed pursuant to Government Code section 70372 and the $40 fine imposed pursuant to section 14657 are ordered stricken. The judgment is affirmed in all other respects.
WE CONCUR: Cornell, J. Poochigian, J.