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People v. Wilks

California Court of Appeals, First District, Second Division
Mar 4, 2008
No. A116179 (Cal. Ct. App. Mar. 4, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEROY WILKS, Defendant and Appellant. A116179 California Court of Appeal, First District, Second Division March 4, 2008

NOT TO BE PUBLISHED

Humboldt County Super. Ct. No. CR053410

Kline, P.J.

Richard Leroy Wilks (appellant) was convicted, pursuant to a plea agreement, of one count of committing a lewd and lascivious act on a child under the age of 14. On appeal, he contends the court improperly denied his requests (1) for a continuance, and (2) to reinstate him on probation. We shall affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was charged by criminal complaint with one count of continuous sexual abuse of a child under the age of 14. (Pen. Code, § 288.5, subd. (a).)

All further statutory references are to the Penal Code unless otherwise indicated.

On January 11, 2006, appellant pleaded guilty to one count of committing a lewd and lascivious act on a child under the age of 14. (§ 288, subd. (a).) On February 22, 2006, the trial court suspended execution of a six-year middle term sentence and placed appellant on formal probation for eight years.

On September 15, 2006, appellant’s probation officer filed a notice of probation violation. On October 2, 2006, appellant waived his right to a formal hearing and admitted the probation violation as alleged, and the trial court summarily revoked probation.

On November 13, 2006, the trial court executed the suspended six-year prison term.

On December 6, 2006, appellant filed a notice of appeal.

FACTUAL BACKGROUND

These facts are taken from the probation officer’s report.

“According to Humboldt County Sheriff’s Department report #2005-03855, on Wednesday, June 29, 2005, at approximately 2300 hours, defendant appeared with his wife, Ms. Julia Wilks, at the Sheriff’s Department to surrender himself on a charge of molesting his nine year old step-granddaughter.

“Defendant had confessed his actions to a counselor the previous week and had been informed that the matter would be referred to law enforcement. However, neither the Sheriff’s Department nor the Department of Social Services had yet been informed of defendant’s alleged acts of molestation. Defendant was not arrested at that time.

“On July 1, 2005, victim #1 was interviewed by the CAST program. She reported defendant had begun touching her vagina two years earlier when she and her father, Mr. Brian S[.], had moved in with defendant and his wife, Mr. S[.’s] mother.

“Victim #1 stated the acts were performed when she was alone with defendant during the night. She added that defendant would use his hand to touch her or he would pass a back-scratcher beneath her clothes and across her vagina.

“On July 8, 2005, another CAST interview was conducted with defendant’s ten year old biological granddaughter who also occasionally spent the night with defendant and defendant’s wife.

“Victim #2 reported that on one occasion, while sitting on defendant’s lap, he had scratched her back “very low” and such had made her uncomfortable.

“On July 8, 2005, defendant was again interviewed by the Sheriff’s Department. He was arrested following his confession that he had touched victim #1’s vagina with the back-scratcher on three occasions.”

DISCUSSION

I. The Trial Court’s Denial of Appellant’s Request for a Continuance

A. Factual Background

On September 15, 2006, appellant’s probation officer filed a notice of probation violation, alleging that appellant had violated probation as follows: “On September 13, 2006, while attending sex offender treatment, defendant revealed to the group that he had exposed himself on two occasions to a female neighbor. [¶] On September 14, 2006, the undersigned received a letter from Gail Narum of Narum Clinical Associates sex offender treatment program, reporting that defendant had been terminated from the program as he had sexually re-offended and for his failure to follow program rules.”

On October 2, 2006, appellant admitted the probation violation.

On October 30, 2006, the probation violation hearing was continued, at appellant’s request.

At a November 13, 2006 hearing, defense counsel requested another continuance in order to have time to find another sexual offender treatment program that would accept appellant. Counsel indicated that it would take about 30 days for several possible programs to review appellant’s information and make a decision. Counsel also said he was considering the possibility of applying for funding for an additional evaluation by a psychiatrist.

The court began to set the matter for a further hearing on December 6, when the prosecutor asked to be heard. The prosecutor opposed another continuance and asked the court to execute appellant’s suspended prison term. After hearing further argument from both the prosecutor and defense counsel, the court stated that it did not see the need for an updated psychiatric report and observed that the fundamental question was whether appellant was “an appropriate candidate to continue on probation, whatever community it be, this or another; and if so, it would be continued participation in treatment program [sic].”

The court then read a letter from the director of appellant’s former sex offender treatment program, which stated: “ ‘I have given the matter serious consideration; and I will not take Mr. Wilks back into my program. Mr. Wilks reoffended while in treatment, which is rare. He lied about his reoffense, sexual history very extensive [sic]. He has very poor impulse control. All of this makes him too risky to have in the community.’ ”

The court then said: “And I think perhaps she has pretty much stated in a nut shell where things stand. [¶] My concern, reviewing the matter prior to today, is the impulse control and the lack of that given the fact the person was—Mr. Wilks very reasonably [was] placed on probation and although in treatment, very blatantly reoffended. And it does seem to speak volumes as to the risk presented. And again, doesn’t really matter which community, but a community. So I think that perhaps backing up, I will deny the motion to continue and simply proceed to sentencing at this time.”

After additional comments from counsel and appellant, the court concluded that, “given the circumstances, the underlying offense and circumstances of the violation and considering the—in particular, the comments of the treatment program which, as stated, express grave concerns for the well-being of the community, I think that at this time having found probation to be violated, revoking probation, will commit Mr. Wilks to Department of Corrections for the previously suspended term of six years.”

B. Legal Analysis

“A ‘trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. (§ 1050, subd. (e) . . . .)’ ” (People v. Roldan (2005) 35 Cal.4th 646, 670.) “ ‘The burden is on [the defendant] to establish an abuse of judicial discretion . . . .’ [Citation.] ‘[A]n order of denial is seldom successfully attacked.’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1003.)

In the present case, appellant had already received a two-week continuance. Defense counsel now wanted more time to locate another sex offender treatment program that would accept appellant. However, after hearing argument on the matter, the trial court determined that the pertinent question was not whether there was another treatment program that would accept appellant. Instead, the court’s concern was whether permitting appellant to remain in a community setting, even assuming another program would accept him, was too great a risk, particularly in light of the fact that he had reoffended while in treatment.

Given the court’s conclusion that appellant was no longer an appropriate candidate for probation, it had no reason to grant a continuance. (See People v. Frye (1998) 18 Cal.4th 894, 1013 [one factor to consider in reviewing denial of a continuance is “whether a continuance would be useful”]; see also part II., ante, regarding court’s denial of appellant’s request to reinstate probation.)

There was no abuse of discretion. (See People v. Roldan, supra, 35 Cal.4th at p. 670; People v. Beeler, supra, 9 Cal.4th at p. 1003.)

II. The Trial Court’s Denial of Appellant’s Request to Reinstate Him on Probation

Appellant contends the trial court abused its discretion when it denied his request to reinstate him on probation.

“ ‘A denial or grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.] A court abuses its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.] We will not interfere with the trial court’s exercise of discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)

Here, the trial court initially placed appellant on probation even though he had pleaded guilty to sexually abusing his young step-granddaughter. Then, within approximately six months of being placed on probation, appellant reoffended by twice exposing himself to a female neighbor, and was terminated from his sex offender treatment program. Under all of the circumstances, the trial court’s concerns about appellant’s risk to the community were reasonable and its decision to deny continued probation was not an abuse of discretion. (People v. Downey, supra, 82 Cal.App.4th at pp. 909-910.)

DISPOSITION

The judgment is affirmed.

We concur: Lambden, J. Richman, J.


Summaries of

People v. Wilks

California Court of Appeals, First District, Second Division
Mar 4, 2008
No. A116179 (Cal. Ct. App. Mar. 4, 2008)
Case details for

People v. Wilks

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEROY WILKS, Defendant…

Court:California Court of Appeals, First District, Second Division

Date published: Mar 4, 2008

Citations

No. A116179 (Cal. Ct. App. Mar. 4, 2008)