Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN239489, K. Michael Kirkman, Judge.
McDONALD, J.
Vicencio Viveros appeals a judgment following his jury conviction of one count of a felony lewd act on a child (Pen. Code, § 288, subd. (a)) and one count of misdemeanor battery (§ 242). On appeal, he contends the trial court abused its discretion by denying his request for probation and instead imposing a prison term.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
At about 5:00 p.m. on April 3, 2004, 15-year-old Linda A. and family and friends were celebrating her "Sweet 15" birthday, or "Quinceañera," on the second floor of the Vista Entertainment Center. Her 12-year-old cousin, Vannesa A., was attending the event as one of her "damas." Thirty-eight-year-old Viveros, who was not invited to the event, approached Linda on the dance floor, grabbed her arm, and told her he wanted to dance with her. Linda was startled and uncomfortable, had never seen Viveros before, and knew he had not been invited to the event. When Linda's uncle intervened, Viveros "took off running."
Shortly thereafter, Viveros approached Vannesa, who was standing near the second floor entrance, and told her he "wanted to dance with the princess." Assuming he was referring to Linda, Vannesa went to locate her. When Vannesa returned, Viveros grabbed her arm and pulled her down the steps of the nearby stairwell. She was crying as he told her he "would make [her] feel good." Viveros then touched Vannesa's vaginal area for four to seven seconds on top of her dress. Vannesa's uncle saw her crying and pulled her away from Viveros.
At about 8:25 p.m., a sheriff's deputy arrived and detained Viveros. After the deputy arrested Viveros, he waived his Miranda rights and admitted grabbing Vannesa's arm, calling her his princess, and asking her to dance, but denied touching her crotch area.
An information charged Viveros with committing felony lewd acts on Vannesa (count 1) and Linda (count 2) in violation of section 288, subdivisions (a) and (c), respectively, and committing misdemeanor child molestation of Jenny P. (count 3) on a subsequent occasion in violation of section 647.6, subdivision (a)(1). The jury found Viveros guilty on count 1, guilty of misdemeanor battery as a lesser included offense of count 2, and not guilty on count 3. At the sentencing hearing, the trial court denied Viveros's request for probation and imposed a three-year prison term for count 1 and a concurrent 180-day term for count 2.
Viveros timely filed a notice of appeal.
DISCUSSION
I
Decisions to Grant or Deny Probation Generally
"All defendants are eligible for probation, in the discretion of the sentencing court [citation], 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 and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]" (Ibid.) In reviewing a trial court's decision 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.)
California Rules of Court rule 4.414 sets forth certain criteria relevant to the trial court's decision to grant or deny probation:
All rule references are to the California Rules of Court.
"Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
"(a) Facts relating to the crime
"Facts relating to the crime include:
"(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶]... [¶]
"(3) The vulnerability of the victim;
"(4) Whether the defendant inflicted physical or emotional injury; [¶]... [¶]
"(6) Whether the defendant was an active or a passive participant; [¶]... [¶]
"(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant....
"(b) Facts relating to the defendant
"Facts relating to the defendant include:
"(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶]...[¶]
"(3) Willingness to comply with the terms of probation;
"(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶]... [¶]
"(7) Whether the defendant is remorseful; and
"(8) The likelihood that if not imprisoned the defendant will be a danger to others."
"In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rules 4.406(b)(2) & 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.) [¶]... [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.)
II
Trial Court's Decision to Deny Viveros Probation
Viveros contends the trial court abused its discretion by denying his request for probation.
A
At the sentencing hearing, the trial court's comments showed it had reviewed and considered the probation report and the psychological evaluation of Viveros conducted by psychiatrist Matthew F. Carroll, M.D. The court also heard arguments of counsel.
Carroll's report stated he had interviewed Viveros and reviewed the probation report and the prosecutor's file. The review showed Viveros apparently was involved in a number of incidents since the instant 2004 offenses. On February 23, 2006, Viveros was accused of peeping into and tapping on a window to get the attention of a 13-year-old girl. That girl recognized Viveros from a prior incident during which he whistled at her and her friends and another incident during which he made kissing noises at her and her mother as he drove past them. Another teenage girl reported that in September 2007 Viveros rubbed his cane on her hand and waist and in October 2007 he touched her arm in church and began sliding his hand down her arm while stating: "Beautiful, I'll see you later." During his interview, Viveros told Carroll that he was HIV positive. Viveros stated he was single, had no children, was unemployed, and lived with his brother. He stated he had no desire for underage girls. He denied his guilt of the instant offenses, telling Carroll the charges were "a bunch of lies" and that he never touched any underage females. He also denied touching a girl in church and denied looking in anyone's window. He told Carroll that on his release he would live with his brother, his sister-in-law, his 12-year-old niece, and one-year-old nephew. Carroll's report stated that although there was no evidence Viveros suffered from pedophilia or other illness, there were several instances in which he was accused of looking at or touching underage girls. Viveros appeared to have a lower than average intellect and had an odd personality. He did not appear to understand the seriousness of the instant offenses. Carroll concluded:
"In my opinion, [Viveros] is a high risk to underage girls. He was recently convicted for [a] lewd act upon a child. The District Attorney file records note that he has been inappropriate with at least three different underage females. As he takes no responsibility for his actions, there is a high likelihood that this behavior will continue in the future. Considering the fact that this man is HIV positive, he could potentially transmit a deadly disease to an underage girl if he has any sexual contact with them. [¶]... If [Viveros] is granted probation, I would strongly recommend that he be required to register as a sexual offender. I would also strongly recommend that he be required to attend a sex offender treatment program. In my opinion he should not be allowed to live with his brother, as his brother has a 12-year-old girl in the home."
The probation report noted that the probation officer had received and considered Carroll's psychological evaluation of Viveros. The report noted Carroll did not state whether Viveros was amenable to probation or treatment. However, it noted Viveros's victims were strangers and Carroll found Viveros was a high risk to re-offend. During the probation officer's interview with him, Viveros continued to deny he touched any of the victims and stated he was innocent. The probation report reviewed the facts of the instant offenses and noted Viveros's subsequent window-peeping incident. The report listed and described various circumstances in support of granting probation (rule 4.414(b)(1), (b)(4)), and various circumstances in support of denying probation (rules 4.414(a)(4), (b)(7), (b)(8), 4.408(a)). The probation report noted the officer's "great concern" regarding the threat Viveros "poses to the community" and stated: "[He] selected strangers in the community and then tried to 'take away' one of the [victims] in his case. He has been identified as being a peeping tom in a dismissed case. In addition, his psychological evaluation did not indicate [he] would be an appropriate candidate for probation or amenable to sex offender treatment. [His] less than average intellect, his failure to take this case seriously, his assessment to be a high risk to continue such deviant behavior, his interest in teenage girls, while carrying a life threatening illness, all present that the defendant is a danger to the community." The probation report recommended probation be denied and Viveros sentenced to the middle term of six years in prison.
Viveros's counsel argued he should be granted probation because of the age of the offenses (2004), his lack of sexually aberrant behavior since then and while on bail, his lack of a criminal history, and the nonegregious nature of his conduct during the instant offenses. His counsel also noted that before trial the prosecutor had offered Viveros probation in exchange for a guilty plea, but he rejected that offer.
The prosecutor submitted on the probation report's recommendation, but also noted Viveros had "lots of" inappropriate activity subsequent to the instant offenses, which showed he did not understand the bounds of proper or legal behavior with young girls. The prosecutor requested Viveros be sentenced to prison "simply for community safety."
The trial court summarized Carroll's report. The court then stated: "I just don't see that it supports a probationary term.... I share the concerns of the probation officer who wrote the probation report in this matter." After allowing counsel to respond to its comments, the court stated:
"I, of course, have seen more egregious conduct as relates to [a] violation of... section 288. At the same time, we all agree that [Viveros's] conduct in this matter... was all rather unusual and bizarre....
"I certainly acknowledge that between the time of the most egregious offense [April 3, 2004] and today's date [July 10, 2008] that [Viveros] had not engaged in more egregious conduct, and it can, indeed, be argued that the conduct had de-escalated. He was committing less serious offenses, nonetheless, committing offenses that certainly concern this court, bizarre conduct involving other young females on several occasions.
"In the end,... I just don't believe that the psychological examination supports... a probationary term. I think [Viveros] is very much a danger to young girls in the community.
"I take into account the following Rules of Court, [rule] 4.414(a)(4), that the defendant did inflict emotional injury on the victims in this matter. They had a very difficult time testifying and were very much impacted by the conduct of the defendant. [¶]... [C]learly, psychological, emotional injury was inflicted upon them.
"[Viveros] does not have any remorse for the matter. He continues to deny, as is his right, but... in order for one who engages in sexually-deviant behavior to get better, in order for that individual to progress to appropriately address the behavior by way of therapy, it's necessary for the individual to acknowledge that he or she has an issue, to begin with; and clearly, that's not the case here.
"Thus, success at the local level through therapy, it seems to me, could not be expected. Under [rule] 4.414(b)(8), as a result, it appears all the more [Viveros] is a danger to others if not imprisoned. I reiterate that his psychological examination did indicate he was at high risk to re-offend in the future. Under [rule] 408(a), indeed, there were multiple victims involved here....
"Taking into account those Rules of Court, balancing them against the rules that might support a grant of probation, [rule] 4.414(b)(1), that he has an insignificant record, a prior [section] 148 [conviction] only, it seems to me that the factors that weigh in favor of denying probation significantly outweigh those that would support a grant of probation. [¶]... [¶]
"[The] [p]robation [report] identifie[d] [rule] 4.414(b)(4) as a possible circumstance supporting a grant of probation. Although it could be gleaned that he may have some level of ability to comply with the terms of probation, given the psychological examination and given the information provided the probation department, it just seems to me, again, that success on probation would be highly unlikely; and, as a result, to the extent that Rule of Court may have some application, I just don't give it a lot of weight.
"The most significant mitigating factor that exists for [Viveros], indeed, is his lack of significant [criminal] history. As I balance the Rules of Court,... those [factors] that support a denial of probation outweigh those that support a grant."
The trial court denied Viveros's request for probation and sentenced him to a three-year prison term for count 1 and a concurrent 180-day term for count 2.
B
Viveros argues the trial court abused its discretion by denying his request for probation because he lacked a criminal history and the facts of the instant offenses did not support a three-year prison term. He further argues that, contrary to the court's finding, he did not pose a significant danger to the community because he did not have any significant misbehavior since his offenses, the trial court allowed him to remain on bail during trial, and Carroll did not conclude he was mentally ill or sexually deviant. He also argues the fact that the prosecutor offered him probation were he to plead guilty before trial refutes the assertion that he was more dangerous after his convictions and therefore warranted a prison term.
Based on our review of the record, we conclude the trial court did not abuse its discretion by denying Viveros probation. The court reviewed Carroll's report, the probation report, and heard arguments of counsel. It considered various rule 4.414 criteria in support of granting and denying probation. It expressly weighed those criteria in exercising its discretion to deny him probation. There is nothing in the court's decisionmaking process that shows the court misunderstood its discretion to weigh relevant criteria in deciding to grant or deny Viveros probation. In fact, the record shows the court cited certain criteria listed in rule 4.414 in making its decision.
The court noted Viveros lacked a significant criminal history (rule 4.414(b)(1)), the instant offenses were relatively nonegregious (rule 4.414(a)(1)), and he apparently had the willingness and ability to comply with reasonable terms of probation (rule 4.414(b)(3), (b)(4)). However, the court also noted Viveros inflicted emotional injury on his victims (rule 4.414(a)(4)), lacked remorse for his offenses (rule 4.414(b)(7)), and was likely to be a danger to others if not imprisoned (rule 4.414(b)(8)). Considering all of those criteria, the trial court concluded the criteria supporting a denial of probation outweighed those supporting a grant of probation. We cannot conclude that decision by the trial court was arbitrary or capricious. Rather, its decision was well within the reasonable exercise of its discretion. On appeal, "it is not our function to substitute our judgment for that of the trial court," but that, in effect, it is what Viveros suggests we do. (People v. Superior Court (Du), supra, 5 Cal.App.4th at p. 825.)
Although the trial court noted Viveros's apparent willingness and ability to comply with terms of probation, it did not give that factor much weight because he failed to acknowledge and accept responsibility for his actions, making it unlikely he would be successful on probation.
The court also stated Viveros's offenses involved multiple victims (rule 4.408(a)).
We conclude there is substantial evidence to support the primary factor the trial court cited as persuading it to deny probation to Viveros--he posed a danger to others, and in particular to young girls were he not imprisoned. Carroll's report on his psychological evaluation of Viveros concluded he was a high risk to underage girls. He noted Viveros had acted inappropriately with at least three teenage girls. Because Viveros did not take responsibility for his actions, Carroll concluded there was a high likelihood this behavior would continue in the future. Carroll's report provides substantial evidence to support the trial court's finding that Viveros posed a high risk to underage girls were he not imprisoned.
The fact Viveros may have been offered probation in a plea offer before trial does not show he necessarily is not a danger to young girls or others and should be granted probation. In so arguing, he apparently neglects the importance of the fact that at the time of the plea offer, he had not yet been tried and found guilty of the instant offenses. Rather, at the time of the offer, he was presumed innocent. We discern no inconsistency between the prosecutor's apparent plea offer of probation before trial and the prosecutor's request that probation be denied after he was found guilty at a jury trial. After Viveros was found guilty of the instant offenses, the danger he poses to young girls became more certain. The trial court reasonably found Viveros poses a high risk to underage girls and did not abuse its discretion by denying him probation.
Viveros raises the same argument based on the trial court's decision to allow him to remain free on bail before and during trial. We apply the same reasoning as above in concluding that factor did not show he necessarily was not a danger to others and should have been granted probation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., AARON, J.