P. v. Bacon

Filed 8/5/09 P. v. Bacon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant John Kennedy Bacon was convicted on his plea of no contest to two counts of lewd acts on a child, against two different victims. The trial court sentenced him to an aggregate term of three years and eight months in state prison. On appeal he contends that, given the particular facts before the court at sentencing, it was an abuse of discretion to deny probation. We find no error, and affirm.

Background

According to the probation officers report, this matter came to the attention of authorities on September 1, 2006, after Jane Doe 1 (Jane 1) told a camp counselor in Washington that defendant, her stepfather, had recently touched the breast of her 14-year old friend Jane Doe 2 (Jane 2) during an overnight visit to Jane 1s home. Jane 1, who was then approaching her 15th birthday, told the counselor that the same thing had happened to her in the past.

When interviewed by social workers and deputies, Jane 1 said that defendant had touched her at least four times over the previous three years. He would stand over her at night and grab and rub her breast over her pajamas, whereupon she would pretend to be asleep, and roll over with her eyes closed, hoping he would leave. Jane 1s mother, who was present at the questioning, explained this conduct in terms of defendants looking for the television remote after Jane 1 had fallen asleep in a recliner or on the couch with volume turned up. Jane 1 said that it did not feel like he was looking for a remote, but felt weird when he touched her. Her mother appeared angry towards Jane 1 and the camp counselor who had turned us in. Jane 1 later told a child forensic specialist that defendant first touched her breast in 7th grade, when she was about 11; he would come into her room and wake her for school by putting his hand under her shirt and below her waist band touching her bottom, and that when she was sleeping on the couch he would touch and rub her chest over her clothes, and also rubbed his hand over crotch, again outside her clothes. The last two touchings had occurred while she was in ninth grade. She estimated that there were about seven touchings in all.

Jane 1 reported that on the night of Jane 2s sleepover, Jane 2 woke her in the middle of night, crying heavily. She said that defendant had been touching her and rubbing her chest. Jane 2 repeated this account to deputies when questioned. She said that she was asleep in the living room of Doe 1s home when she felt a hand rubbing her chest underneath her tank top. When she woke up, she saw a hand on her bare chest. She yelled stop it and flung her arm into the defendant. Jane 1 was angry when she told her, and said he had done the same thing to her in the past. Jane 2 reported that defendant had been staring at her for several weeks before the incident in a way that made her feel uneasy.

Defendant pled no contest to one count of a lewd act against Jane 1 in violation of Penal Code section 288, subdivision (a), and one count of a lewd act against Jane 2 in violation Penal Code section 288, subdivision (c)(1).[1] When interviewed by the probation officer, defendant admitted that he had touched Jane 1 three times, but said it was never under her clothing. He described each incident as lasting only a few seconds. He acknowledged knowing his conduct was wrong and denied knowing what caused him to engage in it. He described himself as having just walked past her, reached out, and touched her. He expressed remorse and said that he had submitted to a few counseling sessions, but had to stop for financial reasons.

He denied any improper touching of Jane 2. He explained that when he went to sleep, he had no idea Doe 2 was spending the night. His wife had not come home prior to him going to sleep. When he awoke in the middle of the night, he went out to the living room and saw what he thought was his wife, not thinking anyone else was over. He tried to wake her to get her to come to bed with him, which he has done on previous occasions when she has fallen asleep in the living room. When Doe 2 rolled over and he realized it was not his wife, he backed away and left the room.

Defendant denied inappropriately touching anyone else. He denied ever having such an urge on any other occasion, and said he was not physically attracted to young girls.

The probation department recommended that probation be denied. The initial report observed that before being found eligible for probation, defendant would have to undergo a 90 day diagnostic evaluation pursuant to Section 1203.03 PC (see Pen. Code, 1203.067), and would also have to be evaluated pursuant to [Penal Code] section 288.1 . . . .

The probation officer found no record of any prior juvenile or criminal charges against defendant or any gang involvement or drug or alcohol problems. It noted that defendant had been employed as a ranch foreman for seven years. Defendant, who was 52 years old at the time of sentencing, had three adult children by a prior marriage, had been married to Jane 1s mother for 10 years, and had adopted her 10-year old son. A number of letters were submitted to the court attesting to defendants good character.

Forensic psychologist Thomas Reidy prepared a psychological evaluation dated February 11, 2008. Although Dr. Reidy gave a [d]iagnostic [i]mpression[] of Paraphilia NOS (not otherwise specified), he opined that defendant does not experience a mental disorder of any time at this kind . . . . He viewed defendant as continu[ing] to display defensiveness concerning his conduct with minimization, denial, and failure to admit sexual arousal . . . . However, defendant had also readily admitted to some of the offenses, which was a significant step in the right direction . . . . It is not uncommon, Reidy continued, for individuals in the pre-sentence phase of a case to engage in such cognitive distortions. During treatment after the criminal case is concluded, Mr. Bacon is likely to be more forthcoming about his sexual activities and intent, particularly when confronted by other sex offenders participating in group therapy, which is a standard form of treatment for these cases. Dr. Reidy acknowledged the presence of two risk factors, i.e., that defendant first molested his stepdaughter when she was pre-pubescent, and that he had molested a second victim. However, he wrote, the absence of other major risk factors enhances the probability of successful participation in treatment and lower recidivism. He noted that the abuse occurred in the home, only with female victims, and was opportunistic rather than predatory. Defendant had limited access in his ranch environment to potential victims outside the family. He had not been involved with pornography, and the abuse was unrelated to substance abuse, antisocial personality, or major psychopathology. The offenses were nonviolent. Defendant was motivated and likely to comply with any rules or conditions imposed upon him. Dr. Reidy concluded that defendant presented a low risk of re-offending provided he participated in sex offender treatment, and was amenable to treatment and probation.

In a supplemental probation report, the chief probation officer took issue with Dr. Reidys view that defendant was suitable for probation. The officer did not recommend a specific sentence, but continued to recommend that defendant be imprisoned for the term prescribed by law.

At the sentencing hearing the prosecutor argued that defendant should be imprisoned for six years eight months, the maximum term allowed by the plea bargain. He argued that, although defendant was living separately from Doe 1s motherindeed was living on a ranchand although he and the mother were taking pains to keep him and Jane 1 from encountering one another, the mother seemed to place higher priority on defendants wellbeing than on her daughters, and the steps they were currently taking to ensure separation were likely to erode over time. The trial court denied probation and sentenced defendant to the lower term of three years on Count 2, plus a consecutive term of eight months on Count 8.

Defendant filed this timely appeal.

Discussion

It goes without saying that the question whether to grant probation is vested in the trial courts broad discretion. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530.) A reviewing court may reverse the trial courts order only if it constitutes an abuse of discretion, which in turn requires that it appear arbitrary or capricious, or beyond the bounds of reason, in light of all the circumstances. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) We are required to presume that the trial court acted to achieve legitimate sentencing objectives. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)

Under the determinate sentencing law, the trial courts decision to grant or deny probation is to be guided by criteria concerning the offense and the offender, such as those laid out in rule 4.414 of the California Rules of Court. (See Pen. Code, 1203, subds. (b)(1), (b)(3).) Here defendant does not contend that the trial court misapplied these criteria. Indeed defendant does not cite the rule. Rather the gist of his argument is that the record presents no rational basis for the denial of probation in light of Dr. Reidys professional opinion that defendant was amenable to treatment and, if treated, presented a low risk of recidivism. This argument depends on several suppositions that we cannot accept as grounds for impeaching the judgment. Thus defendant supposes that the trial court, by ordering a psychological evaluation, necessarily found the original probation report to be an insufficient basis upon which to deny probation. This supposition is unsound. The mere desire to gather more information in aid of a ruling does not oblige a court to disregard the information it already has.

Defendant also supposes that, because the court did not find the original report sufficient, it must have relied upon the probation departments supplemental report in making its final decision.[2] This premise enables defendant to challenge the courts ruling by attacking the logic of the supplemental report. But nothing in the record suggests that the court adopted, or is otherwise bound by, the reasoning in the supplemental report. The court was entitled, and indeed obliged, to consider the entire record in determining defendants suitability for probation. It was not bound by any one document or argument.

Nor is defendants attack on the reasoning in the supplemental report entirely sound. Defendant contends that the report somehow strayed beyond the probation departments competence by taking facts that Dr. Reidy cited in support of his opinion and using them to reach an opposite conclusion, i.e., that defendant was not suitable for probation. As the point is stated in defendants brief, the supplemental report used facts set forth in [Dr. Reidys] report to reach psychological evaluations at odds with the report, but . . . without the benefit of psychological training or analysis . . . . The brief then quotes a passage from the supplemental report asserting in essence that (1) defendants conduct was predatory; (2) defendants lack of insight into his conduct leaves a risk that he will re-offend if the opportunity presents itself; and (3) questions of recidivism aside, defendant should be punished appropriately for his crimes, and this required a prison sentence.

The report indeed appears unsound insofar as it describes defendant as a predator.[3] But there is no evidence that the court placed any reliance, let alone dispositive reliance, on that characterization. In any event none of these assertions purported to draw expert opinions at odds with Dr. Reidys. They were opinions about a legal issuedefendants suitability for probationthat relied in part on facts acknowledged by him. Whatever his professional opinion of defendants amenability to treatment and the likelihood that defendant might eventually master his criminal impulses, the fact remained that defendant showed little present insight into those impulses and hence gave cause for concern that he might not in fact master them. The low risk of recidivism found by Dr. Reidy depended on two future occurrences, i.e., that defendant would undergo successful treatment and that pending its success he would have no opportunity to re-offend. Dr. Reidy gave no reason to hope that if these conditions failede.g., if defendant were presented with an opportunity before successfully completing treatmenthe would refrain from offending.

While defendants partial acknowledgment of wrongdoing and his manifest remorse should not be overlooked, his minimization of his conduct is also striking. Thus he told the probation officer that he had never touched anyone but Jane 1, had only touched her three times, had never touched her under her clothing, and that each incident only lasted a few seconds, during which he walked past her, reached out, and touched her. Each of these statements conflicts with the accounts of his two victims. In her first interview, Jane 1 said that defendant had touched her four times in three years and that he would stand[] over her before or during the touching. In her second interview she estimated that there had were seven touchings including a pattern in which defendant would come into her room to wake her up for school by putting his hand under her shirt, against her skin, and below her waist band touching her bottom. He also rubbed his hand over her crotch area, on top of her clothing. And of course, Jane 2 reported that she woke up to find defendant rubbing her chest under her clothes, an account that the trial court could well find irreconcilable with his insistence that he thought she was his wife, whom he was trying to awaken.

The evaluation of these facts did not somehow become the exclusive province of Dr. Reidy merely because the court ordered a psychological evaluation. The court was entitled to weigh them, along with his opinion, in light of the probation departments and its own experience. The court was not obliged to, and indeed could not properly, delegate to Dr. Reidy the ultimate responsibility for determining defendants suitability for probation. (People v. Franco (1986) 181 Cal.App.3d 342, 351 [it is the trial judge who must ultimately evaluate the psychiatrists recommendation regarding probation].)

Defendant contends that the denial of probation amounted to a violation of due process under the state and federal constitutions. This argument rests on the premise that the trial court reli[ed] on analysis which was lacking any rational basis in fact. Since we reject that premise, we must reject the conclusion.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] The original probation report stated that the plea was entered on condition that defendant receive probation. This characterization is not borne out by the transcript of the plea-taking hearing, which indicates that the plea was conditioned on a maximum sentence of six years open to probation, meaning that the court could consider probation. The court later corrected the probation report on the record.

[2] The court did not comply with the requirement that it state reasons for denying probation. (Cal. Rules of Court, rule 4.406(b)(2).) However defendant raises no objection on this ground, presumably because no predicate objection was raised in the trial court. (See People v. Smith (2001) 24 Cal.4th 849, 852.)

[3] The report took issue with Dr. Reidys view that defendants offenses were opportunistic rather than predatory in character. The essence of this distinction, of course, is that a predator seeks out victims while an opportunist acts upon chances that happen to come his way. The former pattern is generally more reprehensible as well as suggesting greater risk of recidivism. The supplemental probation report twisted the distinction until it broke, arguing that defendants crime was not a random, isolated incident, but more indicative of that of a predator, taking opportunities as he sees fit to assault these young girls. (Italics added.) This statement exemplifies the widespread recent use of predatory to describe all sexual aggression. A meaning that broad reduces the term to mere tautological invective, like describing a murderer as homicidal.