Filed 6/26/26 P. v. Duran CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A172592
v.
JOSE ANGEL DURAN, (Riverside County
Super. Ct. No. INF1900887)
Defendant and
Appellant.
Jose Angel Duran appeals after a jury convicted him of
three counts of committing lewd and lascivious acts with a child
under 14 years old (Pen. Code, § 288, subd. (a)).1 The trial court
denied probation and sentenced him to 10 years in prison. Duran
contends the trial court erred by denying his request for a
continuance of sentencing, because the trial court had not
received a section 288.1 psychological report or section 1203.03
evaluation, which Duran contends are required by section
1203.067, subdivision (a). He also briefly contends that the
denial of the continuance was error because he had not yet
received trial transcripts to prepare a new trial motion and that
1 Undesignated statutory citations are to the Penal Code.
1
the trial court’s denial of probation was arbitrary and not
supported by the record. We find no error and affirm.
BACKGROUND
In November 2018, Jane Doe was 10 years old. Her family
was friends with Duran’s family. Doe referred to Duran as her
uncle.
Doe was at Duran’s house one day while Duran worked on
Doe’s mother’s car. While Doe’s mother was in the house, Doe
went outside to get a slime kit from the car. Duran pushed Doe
against the car, reached around her from behind and touched her
vagina with a lot of force. He stopped when Doe’s mother came
outside looking for her.
Later that day, Doe and one of Duran’s daughters were
playing with slime in the bathroom. Duran sent his daughter to
get a bag for the slime. Duran pushed Doe against the sink and
the wall, reached around her from the back, and touched her
vagina and butt. He stopped when he heard his daughter’s
footsteps.
A week or two later, Duran picked up Doe, her siblings, and
Duran’s children from school. Doe sat in the middle of the front
bench seat, next to Duran. Doe had her backpack on her lap.
Duran reached underneath it to caress Doe’s upper thigh and
touch her vagina. Doe moved away from Duran to stop it.
Duran told Doe that the touching was a tickling game and
stayed between them. The touching was over Doe’s clothes.
Doe told her mother, who contacted law enforcement. An
investigator called Duran to arrange an interview. Duran said
2
that Doe’s mother had talked to Duran’s wife, so he was waiting
for the investigator’s call. He also said, “You always have to
listen to a child,” and that it was a “hard subject.”
Duran was charged with three counts of committing a lewd
and lascivious act on a child under 14 years old in violation of
section 288, subdivision (a). Under Evidence Code section 1108,
the prosecution played a video of a forensic interview of Doe in
which she described certain other acts of abuse. In one instance,
Duran told Doe to sit on his lap. Doe could feel what she believed
was his finger on her buttocks. On other occasions, Duran
pinched Doe’s buttocks, touched her thighs, and used his thumbs
to touch her vagina. Duran took the stand in his defense.
On June 26, 2024, a jury convicted Duran of all three
counts. The trial court originally set sentencing for August 23,
2024. On August 15, 2024, Duran moved to continue the
sentencing because Duran’s counsel had not yet received a copy of
the probation department’s sentencing report. The trial court
granted the motion on August 23, 2024, and continued the
sentencing to November 1, 2024. Duran remained in custody.
On October 24, 2024, Duran moved for another
continuance. His counsel said he had received the probation
sentencing report on October 18, 2024. But his counsel pointed
out that a section 1203.3 evaluation had not been received and
the probation report said the probation department could not
recommend probation because it had not received a section 288.1
report. Duran asked the court to order those evaluations and
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continue the sentencing until the probation department could
give a recommendation as to probation suitability.
The probation report stated that it seemed from the crime
report and statements by Doe’s mother that Duran had not taken
responsibility for his actions and mutual acquaintances
continued to blame the victim for Duran’s legal troubles.2 Doe’s
mother had said that Doe fled from a grocery store after seeing
Duran there and that many family members and friends labeled
Doe a liar.
On October 30, 2024, Duran submitted a statement in
mitigation and asked the court to sentence him to probation. He
argued that the contact Doe described was substantially less than
in other instances of the same crime, in that there was no bare
skin touching, prolonged contact, or contact made under threat.
He cited his lack of any felony or violent or serious misdemeanor
convictions. He acknowledged that the probation report had said
he was not remorseful. But he said this was untrue and said that
during the call with the investigator he had said he felt bad that
Doe was going through this.
2 The probation report was placed in the confidential clerk’s
transcript, but Duran cites and relies on these confidential
materials without seeking to file his brief under seal. We treat
this as a waiver of the confidentiality. (People v. Coddington
(2000) 23 Cal.4th 529, 617, fn. 38, overruled on other grounds by
Price v. Superior Court (2001) 25 Cal.4th 1046, 1069 & fn. 13 and
superseded by statute on other grounds as stated in People v.
Zamudio (2008) 43 Cal.4th 327, 355–356; see Cal. Rules of Court,
rule 8.47(c)(2) [to maintain confidentiality parties can move to file
a document under seal].)
4
On November 1, 2024, the trial court denied Duran’s
motion for a continuance. It recognized that the section 288.1
report was essential if the court wanted to grant probation. But
the court had reviewed the factors in rule 4.414 of the California
Rules of Court and did not intend to grant probation. The court
recited the facts that Duran inflicted physical or emotional
injury, the victim was vulnerable, Duran was an active
participant, the manner in which the crime was carried out
demonstrated sophistication or professionalism, Duran took
advantage of a position of trust, and he had not demonstrated
any remorse. The court also noted that it had received a Static-
99 report.
Duran’s counsel then argued for the first time that there
was good cause for a continuance because his co-counsel had
diligently sought trial transcripts for a new trial motion but had
only the day before received the transcripts for the first day of
trial. The court noted that it had been four months since the
verdict.3
Duran’s counsel also moved to withdraw because he was
not prepared to proceed with sentencing without the section
288.1 report. He asserted that before trial the trial court had
considered offering Duran probation in exchange for a no-contest
plea and the facts that emerged at trial were no different than
3 The trial court said it had been four months since
sentencing, but it is clear that it meant it had been four months
since the verdict.
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the facts available to the court before trial. The trial court denied
that motion as well.
Duran argued for probation based on the same mitigating
factors he cited in his pre-sentencing filing. The trial court
imposed the middle term sentence of six years on the first count
and consecutive sentences of one third of the middle term on the
other two counts, for a total of 10 years.
DISCUSSION
I. Denial of Continuance
A. Section 288.1 Report and Section 1203.03 Evaluation
Duran’s primary argument on appeal is that the trial court
abused its discretion and violated his due process rights by
denying his request for a continuance to obtain a section 288.1
report and section 1203.03 evaluation. “Continuances in criminal
cases are to be granted only for good cause, and the trial court’s
denial of a continuance is reviewed for abuse of discretion only.”
(People v. Rhoades (2019) 8 Cal.5th 393, 451.) The trial court’s
“discretion may not be exercised so as to deprive the defendant or
his attorney of a reasonable opportunity to prepare.” (People v.
Sakarias (2000) 22 Cal.4th 596, 646.) “ ‘There are no mechanical
tests for deciding when a denial of a continuance is so arbitrary
as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.’ ”
(People v. Mungia (2008) 44 Cal.4th 1101, 1118.)
The Courts of Appeal have already rejected Duran’s
argument that a trial court must obtain a section 288.1 report or
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section 1203.03 evaluation before sentencing a defendant who is
eligible for probation like Duran. People v. Thompson (1989)
214 Cal.App.3d 1547, 1549–1550 (Thompson) held that a section
288.1 report is required only if a trial court is inclined to grant
probation. If the trial court is not so inclined, the report is
unnecessary. (Id. at p. 1549.) Section 288.1 states, “Any person
convicted of committing any lewd or lascivious act . . . upon or
with the body, or any part or member thereof, of a child under the
age of 14 years shall not have his or her sentence suspended until
the court obtains a report from a reputable psychiatrist, from a
reputable psychologist who meets the standards set forth in
Section 1027, as to the mental condition of that person.”
Thompson concluded from this language that “[t]he obvious
intent of the Legislature in enacting this statute was to protect
society by requiring a psychiatric or psychological report insuring
that defendant is a suitable candidate for probation.”
(Thompson, at p. 1549.) “[I]f after reviewing all the facts, the
presentence report and the statements in mitigation and
aggravation, the court does not feel that probation is proper, then
there is no duty to request a section 288.1 report.” (Ibid.)
In his reply brief, despite the Legislature’s apparent
acquiescence to Thompson’s holding for almost 30 years, Duran
rejects Thompson as wrongly decided. He faults Thompson for
not addressing section 1203.067, subdivision (a), which was
enacted in 1994 (five years after Thompson was decided) and
states in pertinent part, “Notwithstanding any other law, before
probation may be granted to any person convicted of a felony
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specified in Section . . . 288 . . . who is eligible for probation, the
court shall do all of the following: [¶] (1) Order the defendant
evaluated pursuant to Section 1203.03, or similar evaluation by
the county probation department. [¶] . . . [¶] (3) Order any
psychiatrist or psychologist appointed pursuant to Section 288.1
to include a consideration of the threat to the victim and the
defendant’s potential for positive response to treatment in
making the report to the court.” (See Stats. 1994, ch. 918, § 1.)
Section 1203.067 does not undermine Thompson’s
conclusion. The statute on its face only requires the section 288.1
report and section 1203.03 evaluation “before probation may be
granted.” (§ 1203.067, subd. (a), italics added.) By its own terms,
the statute does not apply if a trial court denies probation. We
must follow the unambiguous meaning of the statute’s plain
language. (People v. Arias (2008) 45 Cal.4th 169, 177.)
Duran’s argument also ignores People v. Ramirez (2006)
143 Cal.App.4th 1512 (Ramirez). Like Duran, the defendant
there argued the trial court should have ordered a diagnostic
evaluation pursuant to section 1203.067. (Ramirez, at pp. 1531—
1532.) Citing Thompson, Ramirez rejected the argument. “A
section 1203.067 diagnostic evaluation becomes necessary only if,
after weighing the criteria listed in rule 4.414, a court is inclined
to order probation rather than prison time. When the court has
no intention of granting probation, and the record adequately
supports such a determination, there is no need for a section
1203.067 diagnostic evaluation.” (Id. at p. 1532.)
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Although Duran does not cite them, several cases,
including one pre-dating Thompson, have held that when a
defendant pleads guilty to violating section 288, it does not
violate People v. Harvey (1979) 25 Cal.3d 754 to use facts
concerning dismissed counts in a section 288.1 report when
denying probation because section 288.1 requires the report on
such a defendant’s suitability for probation. (People v. Franco
(1986) 181 Cal.App.3d 342, 350–351; People v. Bustamante (1992)
7 Cal.App.4th 722, 725–726; People v. Lamb (1999)
76 Cal.App.4th 664, 672–674.) We do not disagree with the
outcomes in these cases, since a defendant who pleads guilty
must be aware that a trial court must require the preparation of
the report if it is inclined to grant probation. But these decisions
cannot be read to hold that a section 288.1 report or section
1203.03 evaluation is mandatory in every case or upon a
defendant’s request, regardless of the trial court’s inclinations.
This issue did not arise in those cases, and the courts did not
grapple with the precise statutory language at issue discussed
above.
Duran cites People v. Bohannon (2000) 82 Cal.App.4th 798,
807–809, disapproved on other grounds by People v. Zambrano
(2007) 41 Cal.4th 1082, 1135, fn. 13, which held that when a
defendant’s counsel received the probation report on the day of
the sentencing hearing, the trial court’s denial of a continuance
violated section 1203 and due process. He argues that when the
Legislature wants to exempt courts from reporting requirements,
it does so explicitly. We agree with Duran that the Legislature is
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explicit when it intends to require trial courts to receive reports
before sentencing. But neither this principle nor Bohannon helps
him. Duran received the standard section 1203 probation report
two weeks in advance of sentencing, so Bohannon does not
directly apply here. Nor does it apply by analogy, since the
operative language in section 1203 and 1203.067 is materially
different. With an exception not relevant here, section 1203,
subdivision (b)(1) states that “if a person is convicted of a felony
and is eligible for probation, before judgment is pronounced, the
court shall immediately refer the matter to a probation officer to
investigate and report to the court, at a specified time, upon the
circumstances surrounding the crime and the prior history and
record of the person, which may be considered either in
aggravation or mitigation of the punishment.” Section 1203,
subdivision (b)(2)(E) further provides, “The report shall be made
available to the court and the prosecuting and defense attorneys
at least five days, or upon request of the defendant or prosecuting
attorney nine days, prior to the time fixed by the court for the
hearing and determination of the report, and shall be filed with
the clerk of the court as a record in the case at the time of the
hearing.”4 Section 1203, subdivision (b)(2)(E) and (b)(4) allow
defense counsel to waive the preparation of the report or the five-
day period but only in writing or in open court.
4 When Bohannon was decided, this provision was
numbered as section 1203, subdivision (b)(2)(D). (See People v.
Bohannon, supra, 82 Cal.App.4th at p. 808.)
10
The contrast between this language and section 1203.067 is
stark. Where section 1203 requires the preparation of the
standard probation report “before judgment is pronounced”
(§ 1203, subd. (b)(1)) and specifies the methods by which a
defendant can waive the deadline for his receipt of report (id.,
subd. (b)(2)(E)) or the preparation of the report entirely (id.,
subd. (b)(4)), section 1203.067, subdivision (a) requires a section
288.1 report or section 1203.03 evaluation only “before probation
may be granted.” If the Legislature intended to entitle a
defendant like Duran to a section 288.1 report or section 1203.03
evaluation, it would have used language expressly saying so, like
in section 1203. Thus, while the trial court properly continued
the sentencing hearing once at Duran’s request to allow his
counsel to receive and consider the probation report, it did not err
by refusing to continue the hearing a second time to receive a
section 288.1 report or section 1203.03 evaluation.
Duran points out that the probation report here said it
could not recommend a grant of probation in the absence of a
section 288.1 report. He argues that a report that concedes its
own inadequacy in this regard is tantamount to a late-delivered
report like in Bohannon. The probation report did not say that it
could not evaluate suitability for probation, only that absence of
the prerequisite section 288.1 report prevented the probation
department from recommending probation. The probation report
here contained more than enough facts to allow the trial court to
evaluate the factors relevant to probation and determine whether
it was inclined to grant probation and to allow Duran’s counsel to
11
make a meaningful argument on his behalf. Besides, the absence
of a section 288.1 report cannot itself render a probation report
inadequate. If it did, it would be a strangely convoluted, indirect
way of mandating a section 288.1 report or section 1203.03
evaluation. We cannot conceive that the Legislature wrote the
statutory scheme in this fashion.
Duran further contends that Thompson (and, presumably,
Ramirez, although Duran does not cite or discuss it) creates a
logical impossibility in that it requires a court to decide whether
it is inclined toward probation, which is a sentencing
determination, before receiving the reports that are intended to
inform that determination. There is no impossibility. A trial
court could be provisionally persuaded to grant probation by, e.g.,
sentencing memoranda or a statement of mitigation filed before a
sentencing hearing or a defendant’s arguments at the hearing.
The trial court could then continue the sentencing hearing and
order the preparation of the section 288.1 report and section
1203.03 evaluation. At the continued sentencing hearing, the
trial court could make a final sentencing determination informed
by the additional materials. The trial court could have easily
followed this procedure here, since Duran filed a statement of
mitigation on October 30 and the parties evidently held a
discussion in chambers in advance of the sentencing hearing at
which Duran asked for a continuance to allow the court to
consider a section 288.1 report and section 1203.03 evaluation. If
the trial court were inclined to consider probation, perhaps
because of Duran’s counsel’s arguments in chambers or the
12
statement in mitigation he had filed before the hearing, nothing
prevented it from granting the continuance that Duran
requested.
Duran notes that Thompson, supra, 214 Cal.App.3d at page
1549 acknowledged that the purpose of section 288.1 is to protect
society by requiring expert evaluation of whether a defendant is
suitable for probation. He contends that under Thompson’s rule,
this protection is available only when a trial court is already
inclined to grant probation, which is when society’s protection is
least at stake. Duran appears to misunderstand Thompson’s
point. If a trial court is not inclined to grant probation, there is
no risk to society because the defendant will be incarcerated.
Society is only at risk when a trial court may release a defendant
on probation. Section 1203.067 reflects the Legislature’s
judgment that it is important to give trial courts additional
information when they may grant probation, to prevent them
from granting probation when it may be inappropriate. In other
words, it seeks to prevent inappropriate grants of probation.
Duran may believe section 288.1 reports and section 1203.03
evaluations are also helpful to prevent inappropriate denials of
probation. But that is evidently not the Legislature’s view, since
it did not mandate the preparation of such materials before
pronouncing judgment, only before granting probation.
Duran tries to distinguish Thompson on the grounds that it
involved a guilty plea and the defendant there did not dispute
that the denial of probation was supported by the record.
(Thompson, supra, 214 Cal.App.3d at pp. 1548, 1550.) Duran
13
does not explain the significance of a guilty plea as opposed to a
jury trial or the failure to challenge the basis for a denial of
probation, and we see none. If the record does not support a
denial of probation, then a defendant’s sentence will be reversed
and the trial court must order preparation of the reports. And if
the record does support a denial of probation, those reports are
unnecessary. This is borne out by Ramirez, supra,
143 Cal.App.4th at pages 1529–1531, which involved a jury trial
and a defendant who challenged the basis for the denial of
probation. After finding the denial supported by the record, the
court followed Thompson and rejected the argument that the trial
court should have prepared the additional reports. (Ramirez, at
p. 1532.)
B. Continuance for Trial Transcripts
Duran further contends the trial court abused its discretion
in denying his request for a continuance to prepare a new trial
motion. He notes that his counsel had received transcripts of
only the first day of trial and argues the denial of a continuance
violated due process because his counsel did not have a
reasonable opportunity to prepare for the hearing. The record
does not support this argument. As the trial court observed, the
sentencing was held four months after the jury’s verdict. Neither
in the trial court nor on appeal has Duran explained why his
counsel had obtained only one day’s transcript by the time of
sentencing. The trial was not long, lasting only two days, and the
transcripts in the record here barely exceed 300 pages. A trial
court’s discretion to deny a continuance “may not be exercised so
14
as to deprive the defendant or his attorney of a reasonable
opportunity to prepare” (People v. Sakarias, supra, 22 Cal.4th at
p. 646), but Duran fails to show why four months was not a
reasonable opportunity to prepare a new trial motion.
II. Denial of Probation
Duran finally contends the trial court’s denial of probation
should be reversed because its finding that he lacked remorse
was contrary to the record and legally improper. He argues the
trial court’s remorse finding must have been based on his
rejection of a plea deal, which is improper. He also briefly asserts
the trial court failed to consider mitigating circumstances.
Duran argued to the trial court in a pre-sentencing brief
and at the hearing that various mitigating circumstances
applied, such as that his offense was less serious than other
violations of section 288 and that he had no prior felony
convictions. The trial court’s evident disagreement with Duran’s
assessment does not mean it failed to consider the factors he
identified, and Duran cites no authority to the contrary. The
record also supports the trial court’s finding that Duran did not
demonstrate remorse. Nothing in the probation report suggests
that Duran demonstrated any remorse to the probation officer
who interviewed him, which in itself supports the probation
report’s statement and the trial court’s finding. Nor do his
statements in the probation report suggest he felt any remorse.
Duran argues that expressions of remorse can be found outside a
probation report, and we agree. But nowhere else in the record
do we see an expression of remorse. Duran did not address the
15
court at sentencing, instead arguing through counsel that the
probation report’s finding of lack of remorse was unfounded.
Duran argues that he demonstrated remorse when he told an
investigator before trial that he was sorry for what Doe was going
through. But the only record citation he provides to support this
assertion is to his statement in mitigation filed after trial. The
transcript of the call does not demonstrate any such remark, and
he did not mention any such remark in his own testimony.
Duran did tell the investigator, “You always have to listen to a
child,” and the investigation was a “hard subject,” but these
comments were in reference to it being a difficult subject for
Duran to speak about, not Doe.
Finally, we reject Duran’s contention that the trial court’s
denial of probation must have been based on his exercise of his
right to a trial. He asserts that the facts known to the court at
the time of the plea were the same as those that emerged during
trial, but he cites nothing to substantiate the assertion other
than his own counsel’s statements in the trial court. Besides, to
prove the trial court punished him for exercising his right to trial
Duran must cite something more than the mere fact that his
sentence after trial was more severe than the terms he was
offered before trial. (People v. Szeto (1981) 29 Cal.3d 20, 34–35.)
He cites no such facts, so this contention fails.
DISPOSITION
The judgment is affirmed.
BROWN, P. J.
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WE CONCUR:
GOLDMAN, J.
SWEET, J.5
People v. Duran (A172592)
5 Judge of the Superior Court of Marin County, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17