Filed 8/28/26 P. v. Blowers CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yuba)
THE PEOPLE, C103395
Plaintiff and Respondent,
(Super. Ct. No. CRF2500097)
v.
KYLE STEVEN BLOWERS,
Defendant and Appellant.
Defendant Kyle Steven Blowers pled no contest to committing two lewd acts on
his girlfriend’s child (victim). He entered this plea in exchange for probation or up to
eight years in prison. The trial court denied defendant’s request for probation and
sentenced him to eight years in prison. Defendant contends the trial court abused its
discretion by denying probation. We disagree and affirm. Undesignated statutory
references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with five counts involving victim: one count of
continuous sexual abuse of a child (§ 288.5, subd. (a)); three counts of lewd acts on a
child (§ 288, subds. (a), (c)(1)); and one count of misdemeanor annoying or molesting a
child (§ 647.6, subd. (a)(1)). Defendant pled no contest to two lewd act counts in
exchange for dismissal of the other counts and either probation or up to eight years in
prison. Defense counsel specifically represented defendant’s eligibility for probation and
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noted defendant would need a report under section 288.1 (section 288.1 report) to get
probation. The trial court stated granting probation in this case required both a section
288.1 report and “an unusual case finding.” The court then ordered a probation report
and set the matter for sentencing.
According to the probation report, defendant sexually abused victim for years.
When victim was 12 years old, defendant asked her to give him “cuddles.” During these
cuddles, defendant would sometimes place his hand on her breast or hip and buttocks.
The last time they cuddled, defendant pulled down victim’s pants and inserted his penis
between her waistband and underwear and began to move back and forth. Defendant also
masturbated in front of victim and asked her to massage him behind his thighs near his
buttocks. Over time, defendant asked victim to sit on his lap and massage his chest
“every other day.” Victim would straddle his groin area and could “feel his penis either
‘standing up’ or ‘laying down.’ ”
Defendant admitted he asked victim to massage his legs and thighs with a massage
gun. He became aroused and asked her to massage his inner thigh, and she would
sometimes brush against his penis when doing so. On two or three occasions, he fell
asleep while cuddling victim and woke up to find his hand near her breast. The last
occasion he remembered, he pulled her pants down and woke up to find his penis out of
his boxers.
Defendant stated he was “completely ashamed” of his behavior, he believed his
judgment “was clouded by marijuana use,” and he “would not make the same choices
today.” He also indicated willingness to comply with probation conditions and requested
sex offender therapy and drug testing as conditions.
Defendant had one prior misdemeanor conviction for polluting public water (Fish
& G. Code, § 5652) and several pending charges in Placer County for engaging in sexual
battery, sexual penetration with a foreign object, and oral copulation (§§ 243.4, 289,
subd. (a), 287, subd. (c)) while acting as a massage therapist (the Placer County case).
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One of his massage clients told a police officer that he inserted his fingers into the
client’s vaginal canal, put his face in between her thighs, licked her vagina, and rubbed
his hands along her breasts. A second client reported the defendant touched her breasts
multiple times and rubbed her leg up to her vagina. And a third client reported that
defendant touched her outer genitalia and the sides and underneath her breasts.
The probation report noted defendant’s ineligibility for probation absent a
favorable section 288.1 report. The probation report recommended a six-year (middle
term) sentence for one of the lewd act counts and a consecutive two-year sentence (one-
third the middle term) for the other because: (1) defendant took advantage of victim’s
trust and vulnerability; and (2) the offenses demanded “an extensive prison sentence to
reflect the severity of the crimes committed” and to provide community protection.
At the sentencing hearing, defense counsel requested probation, acknowledging
the need for a section 288.1 report and citing defendant’s minimal criminal history, early
acceptance of wrongdoing, and willingness to participate in classes or therapy. The trial
court asked about the status of the Placer County case, commenting that it “reinforce[d]
the idea that [defendant was] not a candidate for probation.” Defendant responded, “I’m
fighting that case.” The court then stated, “This is a gentleman [who] exploits positions
of trust, whether that is in the scope of his employment or in his role as a parent. I’m not
inclined – I will not continue this for purposes of getting a 288.1 report. While he has no
prior record, the conduct in this case, even with a favorable report, I could not grant
probation.”
The court then heard statements from victim and victim’s aunt. According to
victim, defendant knew she had been abused before and promised he would “never do
something like that to [her]. [Victim] believed him, and he broke that trust.” After
defendant’s actions, victim started acting out and cutting herself. She also had a hard
time sleeping and trusting people.
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The prosecution requested the eight-year maximum described in the plea
agreement. Defense counsel requested the low term and argued the court should not
consider the Placer County case because it reflected “allegations and not convictions.”
The court noted defendant’s early acknowledgement of wrongdoing but found he
took advantage of a position of trust and of a particularly vulnerable victim who had
previously been victimized. The court imposed the eight-year sentence, finding that
defendant was “undeserving of the low term.” Defendant timely appeals.
DISCUSSION
A trial court has broad discretion to grant or deny probation except when
otherwise limited by statute. (People v. Edwards (1976) 18 Cal.3d 796, 807.) One such
limiting statute is section 288.1. That statute makes a person convicted of committing a
lewd act upon a child under the age of 14, like defendant was here, ineligible for
probation unless the person obtains a report from a reputable psychologist or psychiatrist.
(§ 288.1.) A court is not required to request a section 288.1 report if (1) it has no
intention of granting probation and (2) the record supports such a denial of probation.
(People v. Thompson (1989) 214 Cal.App.3d 1547, 1549.)
Defendant contends the trial court did not understand it had the discretion to order
probation in this case. In support, he focuses on the trial court’s statement that it “could
not grant probation” even with a favorable section 288.1 report. As we will explain,
defendant places undue emphasis on the word “could.”
A defendant is entitled to sentencing decisions made in the exercise of informed
discretion. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) A court cannot
exercise that “informed discretion” where it is “unaware of the scope of its discretionary
powers.” (Ibid.) Having said that, we presume the trial court knows and applies the law
correctly, and the appealing party bears the burden of demonstrating otherwise. (People
v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 835; People v. Selivanov (2016)
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5 Cal.App.5th 726, 795.) We also consider the entirety of the trial court’s statements
rather than isolated or ambiguous remarks. (Du, at p. 835.)
Here, the trial court acknowledged probation as an option when defendant entered
his plea, and the probation report reiterated that option. (See People v. Black (2007)
41 Cal.4th 799, 818, fn. 7 [trial court presumed to have read and considered the probation
report].) The trial court ultimately determined it “could not” order probation given
defendant’s conduct in this case. In light of that record, we do not agree with defendant
that the trial court thought it lacked the authority to order probation. Considered in
context, we interpret the trial court’s statement to mean that it understood its discretion
but declined to grant probation given the circumstances of this case.
Assuming the trial court understood its discretion to order probation, defendant
contends the court nevertheless abused that discretion by denying probation without
evidentiary support. We disagree. Defendant relies on facts relating to him that favor
probation, specifically his remorse, his lack of a felony record, his willingness to comply
with probation, and the effect of daily marijuana use on his commission of the offenses.
(See Cal. Rules of Court, rule 4.414(b).) But he ignores facts relating to the crime that
weigh against probation. (See Cal. Rules of Court, rule 4.414(a) [victim’s vulnerability,
whether defendant took advantage of a position of trust, and whether defendant was an
active or passive participant].) The trial court stated it could not grant probation based on
the conduct in this case and provided a more detailed explanation for the middle term
sentence it chose, specifically finding that defendant took advantage of a position of trust
and abused a particularly vulnerable victim “in the worse possible way.” The court was
not required to elaborate further and defendant does not contend otherwise, nor does he
challenge the middle term findings for lack of substantial evidence. (See People v.
Mehserle (2012) 206 Cal.App.4th 1125, 1157-1158 [court’s obligation to state reasons
for denying probation satisfied by explanation of why probation has been rejected];
People v. Cushway (1987) 193 Cal.App.3d 776, 779-780 [when a court states reasons for
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imposing a midterm sentence, it does not need to supply reasons for denying probation].)
To the extent defendant contends the trial court struck the wrong balance regarding
probation, we cannot reweigh the factors bearing on the court’s sentencing decision.
(People v. Scott (1994) 9 Cal.4th 331, 355.)
Defendant also contends the trial court lacked substantial evidence to find he
exploited a position of trust in his employment because that finding was based on the
Placer County case, a case that had not yet produced any convictions. But the probation
report described the allegations underlying the Placer County case in detail, and
authorities have established that trial courts can rely on that type of information when
making sentencing decisions. (People v. Kellett (1982) 134 Cal.App.3d 949, 960; People
v. Phillips (1977) 76 Cal.App.3d 207, 213-215.) Defendant does not address those
authorities or explain why the trial court could not consider the detailed allegations
provided in the probation report. (People v. Williams (1997) 16 Cal.4th 153, 206 [points
perfunctorily asserted are not properly raised].) In any event, the record shows the trial
court’s decision to deny probation was not based on the Placer County case. The trial
court expressly stated it could not grant probation based on “the conduct in this case,”
referring to the case pending before it, not the Placer County case.
In sum, because the trial court had no intention of granting probation and the
record supports that denial, the trial court was not required to order a section 288.1 report.
(People v. Thompson, supra, 214 Cal.App.3d at p. 1549.) Having reached that
conclusion, we must reject defendant’s contentions that the trial court “shortcut[]” the
process by not ordering a continuance for the purpose of obtaining a section 288.1 report.
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DISPOSITION
The judgment is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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