Opinion
C055221
4-16-2008
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CADELL VILLANUEVA, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Anthony Cadell Villanueva was charged in 1999 with six counts of lewd and lascivious conduct with a child under the age of 14 years in violation of Penal Code section 288, subdivision (a) and one count of annoying or molesting a child in violation of section 647.6, subdivision (a). Defendant pled no contest to one count of violating section 288, subdivision (a), involving J.M. as a victim, in exchange for dismissal of the remaining counts and a promise of no more than one year of jail time. Defendant entered Harvey waivers as to count six (§ 288, subd. (a)) and count seven (§ 647.6, subd. (a)) involving E.M. and A.M. as named victims. In 2000, the trial court suspended imposition of judgment and sentence and placed defendant on eight years of formal probation, conditioned on, among other things, service of 361 days in county jail.
Hereafter, undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754.
In October 2006, defendant admitted three of the four violations of probation alleged in a fifth petition for violation of probation. The trial court sentenced defendant to state prison for the middle term of six years. On appeal, defendant claims the trial courts imposition of the middle term was an abuse of discretion and that the abstract of judgment must be corrected to reflect the correct date of defendants conviction. We find no abuse of discretion by the trial court in sentencing defendant to the middle term, but accept the Attorney Generals concession as to defendants second claim.
FACTUAL AND PROCEDURAL BACKGROUND
In August 1999, law enforcement responded to a call from the victims grandmother who reported her three grandchildren, ages five, six, and seven, had been touched on their private parts by their mothers boyfriend (defendant). According to the grandmother, her six-year-old grandson told her approximately three weeks earlier about a "bad touch" on his privates by defendant. The six-year-old boy then recently told his grandmother that defendant would have him, his five-year-old brother and his seven-year-old sister lay down on their backs and close their eyes while defendant touched them on their private parts. He also said defendant came into the bathroom and watched them when they showered. The five-year-old boy and seven-year-old girl told their mother about defendants touching them. During interviews at the MDIC facility, all three children reported defendant touched their privates and rubbed them over their clothing. Defendant denied the accusations.
As there was no trial, we take these facts from the 2000 probation report.
On May 25, 2000, as part of a negotiated plea bargain, defendant entered a no contest plea to one count of violating section 288, subdivision (a), involving J.M. The remaining charges were dismissed with a Harvey waiver as to two counts involving the other child victims and defendant was promised no more than one year in jail. In his interview with probation for purposes of sentencing, defendant continued to deny the truth of the allegations, blaming his former girlfriend and her mother (the victims grandmother) for the charges. The trial court suspended imposition of judgment and sentence and placed defendant on eight years of formal probation, conditioned on, among other things, service of 361 days in county jail.
In November 2002, defendant admitted a violation of probation by failing to keep appointments with his probation officer. Defendants probation was revoked, but reinstated. Defendant was ordered to serve an additional 60 days in county jail. Defendant waived sufficient credits to fit in the additional time without going over the limit of one year in jail.
In December 2003, defendant admitted one count of a five-count petition for violation of probation. Defendant admitted he violated his probation by remaining away from his residence for more than 48 hours without first notifying his probation officer. The trial court reinstated probation with the additional condition that defendant serve a further 75 days in jail. Defendant expressly agreed to the additional time although he had already served his year in jail.
In April 2004, defendant was before the court on a third petition for violation of probation, alleging three counts. Defendant admitted the allegation that he failed to keep his probation officer notified of his whereabouts. The trial court revoked and reinstated defendants probation with the additional condition that defendant serves 90 days in jail.
In May 2006, defendant was before the court on his fourth petition for violation of probation. Defendant admitted count one, that he failed to report to his probation officer as directed. Defendant again waived the original time limit on his county jail time. His probation was revoked and reinstated with the additional condition that he serves a further 90 days in jail.
In August 2006, a fifth petition for violation of probation was filed alleging defendant had failed to keep his probation officer notified of his whereabouts (count one), he failed to keep a scheduled appointment with his probation officer (count two), he failed to keep an appointment for urinalysis (count three), three urine samples taken from defendant were found to contain methamphetamine (count four), and defendant failed to meet scheduled restitution payments (count five). Defendant admitted counts one, two and four. Defendant was referred to probation for a report and recommendation.
Defendant was before the trial court for judgment and sentence on January 26, 2007. The court stated it had read and considered the report prepared by the probation department. It invited argument from the prosecution and the defense and heard comments from defendant. Defendant sought reinstatement of probation and asked for a chance at a drug rehabilitation program. The prosecutor argued defendant had received "a huge benefit back in 2000" when he accepted the negotiated plea bargain and received probation. Since that time, he had continuously violated his probation. The prosecutor argued defendant was a serious threat to the community as a child molester, that defendant completely lacked remorse, and that he was unlikely to be successful on further probation and in a drug rehabilitation program. Although the prosecution initially sought the upper term of eight years in a written statement in aggravation, at sentencing the prosecutor requested the middle term of six years. Probation recommended defendant be sentenced to the low term of three years. The prosecutor disagreed with probations recommendation, explaining that due to the amount of time defendant had already served in custody (defendant had served 361 days on the original grant of probation, 315 days on the four subsequent violations of probation, and 172 days presentence on the fifth violation, amounting to an aggregate of 848 actual days in custody, plus 127 days of credit pursuant to section 2933.1 for a total of 975 days of credit), a three-year prison sentence "would be attuned to a quasi paper commitment[.]"
The trial court noted defendant had been originally granted probation, probation had been reinstated four times on defendants admissions of violations of probation, and that defendant was now before the court seeking his sixth chance on probation. The court found "there is nothing here that would indicate that you are entitled to another risk. You are going to have to serve sometime [sic] and get this matter behind you. Lets not lose sight of what this was. There were three children, ages five, six, seven that were involved in this matter. Had a Harvey waiver on two of them and pled to one of them, and were given the benefit at that time of probation with local time. It didnt work. Now, the system has tried its best. Now, its up to you, and you are going to have to serve the time. . . . [¶] But based upon all the information I have in this particular matter, Im going to order you are to serve the mid term; therefore, the reasons need not be stated of six years in state prison."
DISCUSSION
I.
The Trial Court Did Not Abuse Its Discretion In Sentencing Defendant To Prison For The Middle Term
Defendant contends the trial court abused its discretion in sentencing him to state prison for the middle term. Defendant argues his probation violations arose directly from his homelessness and addiction to methamphetamine, that there were no allegations he had reoffended by acting inappropriately or criminally with children or that he had engaged in any violent behavior after his initial probation grant, and that during the six and a half years he had been on probation, he was not convicted of any other crime — felony or misdemeanor. Defendant contends only one of the seven general objectives of sentencing provided by rule 4.410 of the California Rules of Court could arguably be applicable to defendant. Defendant contends the circumstances in mitigation outweighed the circumstances in aggravation. Defendant claims the record demonstrates the trial court likely relied on improper aggravation in making its sentencing choice. Defendant disagrees with the trial courts statement that it was not required to state reasons for the middle term sentence. We conclude the record does not reflect any abuse of discretion by the trial court.
Hereafter, undesignated rule references are to the California Rules of Court.
If a trial court initially suspends imposition of judgment and sentencing and places the defendant on probation, as occurred here, the court upon revocation of such probation must state its reasons for denying reinstatement of probation and sentencing the defendant to state prison. (People v. Hawthorne (1991) 226 Cal.App.3d 789, 791; People v. Jones (1990) 224 Cal.App.3d 1309, 1312-1315; People v. Pennington (1989) 213 Cal.App.3d 173, 175-177; contra dictum, People v. Slaughter (1987) 194 Cal.App.3d 95, 98-99.)
However, the trial court did not have to state its reasons for imposing the middle term of imprisonment under the law applicable to defendant. Former section 1170, subdivision (b), provided, in pertinent part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (See also People v. Lamb (1988) 206 Cal.App.3d 397, 401 (Lamb).) Under former section 1170, subdivision (b), the lower term was only justified where, considering all the relevant facts, the circumstances in mitigation outweighed the circumstances in aggravation. (See also former rule 4.420(b).)
In response to Cunningham v. California (2007) 549 U.S. ___ , the California Legislature amended section 1170 by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2; People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2.) In response to the Legislatures amendment of section 1170, the Judicial Council amended the sentencing rules effective May 23, 2007. (People v. Sandoval, supra, at p. 836, fn. 3.) Defendant was sentenced on January 26, 2007.
Under this law, the trial court has wide discretion in weighing aggravating and mitigating factors, may balance them against each other in qualitative as well as quantitative terms, and need not state reasons for minimizing or disregarding circumstances in mitigation. (Lamb, supra, 206 Cal.App.3d at p. 401.) "When the middle term is imposed, no additional reasons are required." (Id. at p. 402.) The sentencing judge is deemed to have considered the relevant factors "unless the record affirmatively reflects otherwise." (Rule 4.409.) In the situation involved here, if the trial court states its reasons for selecting imprisonment over probation, the trial court is not required to provide additional justification for imposing the middle term. (People v. Jones, supra, 224 Cal.App.3d at p. 1316.)
We review the trial courts determination of the sentence term for abuse of discretion. (Lamb, supra, 206 Cal.App.3d at p. 401; People v. Ramos (1980) 106 Cal.App.3d 591, 605, disapproved on another ground in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16.) The trial courts sentencing choice will be upheld unless defendant shows the sentence was arbitrary or irrational. (People v. Hubbell (1980) 108 Cal.App.3d 253, 260.)
In this case the trial court stated adequate reasons for choosing not to reinstate defendants probation. It noted defendant had been reinstated four previous times and was now in front of the court seeking a sixth chance on probation. The trial court found nothing to indicate defendant was entitled to yet another chance. In a serious matter involving three children, defendant had been given the benefit of probation and "[i]t didnt work." According to the court, the system had tried its best, but now defendant was going to have to serve the time. We find nothing arbitrary or irrational in the trial courts decision under these circumstances to deny reinstatement of probation and sentence defendant to prison. The trial court was not required to provide additional justification for imposing the middle term. (People v. Jones, supra, 224 Cal.App.3d at p. 1316.)
Defendant argues only one of the seven general objectives of sentencing provided by rule 4.410 could arguably be applicable to him and that the record establishes the circumstances in mitigation outweighed the circumstances in aggravation. Defendant, however, has not shown the trial courts choice of the then presumptive middle term of imprisonment was arbitrary or irrational, particularly where, as the prosecutor pointed out, a low term would have resulted in defendant serving only a few additional months in prison because of the time defendant had already served in custody. The trial court reasonably may have felt the low term would not be a meaningful commitment to prison.
We also reject defendants claim that the trial court likely relied on improper aggravation in making its sentencing choice. Specifically, defendant complains about the prosecutors argument that defendant had a significant criminal record, was a danger to society, lacked remorse, and that the victims were particularly vulnerable and were under 14 years of age. We need not discuss whether each of these factors was supported by the record or legally permissible as the trial court never stated it was relying on any of these arguments by the prosecution. When the trial court mentioned the ages of the three child victims, it appeared to be focusing on the fact that there were three victims — a fact which was appropriately considered due to defendants Harvey waivers.
We conclude the trial court did not abuse its discretion in sentencing defendant to prison for the middle term.
II.
The Abstract Of Judgment Must Be Corrected
The abstract of judgment reflects the date of defendants conviction as July 6, 2000, the date when defendant was before the trial court for judgment and sentencing and when he was initially placed on probation. The docket sheet, the minute order reflecting defendants plea and the reporters transcript of defendants plea proceedings all reflect the date of entry of defendants no contest plea as May 25, 2000.
Defendant contends the abstract of judgment must be ordered to reflect the May 2000 date as the date of his conviction. The Attorney General agrees. So do we. The general rule in California is that "`[a] plea of guilty constitutes a conviction." (People v. Banks (1959) 53 Cal.2d 370, 390-391, quoting Stephens v. Toomey (1959) 51 Cal.2d 864, 869; accord, People v. Laino (2004) 32 Cal.4th 878, 895.) We shall order the abstract of judgment to be corrected accordingly.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment to reflect the date of defendants conviction as May 25, 2000, and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur:
RAYE, Acting P.J.
MORRISON, J.