P. v. Fullmer
Filed 7/16/13 P. v. Fullmer 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Nevada)
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>
THE PEOPLE, Plaintiff and Respondent, v. MARTIN ZANE FULLMER, Defendant and Appellant. | C070583 (Super. Ct. No. SF10349) |
Defendant
Martin Zane Fullmer entered a negotiated plea of no contest to committing a
lewd act on a child under the age of 14 years (Pen. Code, § 288, subd.
(a)--count I; unless otherwise stated, all statutory references that follow are
to the Penal Code) in exchange for dismissal of another count charging the same conduct on the same victim
on another occasion (count II) with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey) and a sentencing lid of the midterm of six years. With the prosecutor’s agreement, defendant
reserved the right to argue for probation. The court denied probation and sentenced
defendant to state prison for the midterm of six years. Defendant appeals. He contends the trial court abused its
discretion in denying probation and in declining to impose the mitigated term
of three years. We affirm the judgment.
Facts and Proceedings
The facts
are taken from the probation report. The
parties stipulated and defendant agreed that the factual basis for his plea was
set forth in the sheriff’s report which is summarized in the probation report. Part of the sheriff’s report appears in the
record on appeal. The probation officer
also referred to the attachments and supplemental reports to the sheriff’s
report as well but the same are not in the record on appeal. Although documents including the “MDITâ€
interviews with the victims and the supplemental sheriff’s reports dated August
11, 13, 17, 24, 25, 2010 and September 1, 2010, were provided to a medical
expert, the same are not part of the record on appeal.
On August 10, 2010, a hospital social
worker contacted the sheriff’s office, reporting that defendant had been
admitted for a self-inflicted gunshot wound after his “granddaughter(s) told
their mother he had sexually molested them.â€
The social worker then spoke with defendant’s spouse and her daughter
about the allegations. The next day,
deputy sheriffs spoke with the victims’ mother who admitted that her
seven-year-old and 10-year-old daughters had reported being molested by
defendant.
On August 13, 2010, a child support
services social worker met with the victims and their mother. The 10-year-old victim reported that
defendant “knelt down next to her and touched her just above the knee. [Defendant] then used either one or two
fingers ([the child] wasn’t sure) and placed them inside ‘there,’ â€
pointing to the vaginal area of an anatomical picture. She also reported that defendant had
previously molested her when she was nine years old. The seven-year-old victim reported that she
had gone with defendant to a drive-in movie.
When they were driving back, he put his hand down her pants and rubbed
her vagina. She demonstrated how he did
that using a stuffed bear. The victims’
mother (defendant’s daughter) reported that defendant had orally copulated her
when she was nine or 10 years of age.
She also reported defendant had touched her inappropriately on other
occasions. She claimed that she had told
her mother (defendant’s spouse).
On August 26, 2010, a sheriff’s deputy
interviewed defendant’s spouse who eventually admitted that the victims’ mother
(defendant’s daughter) had reported being molested by defendant.
Discussion
In denying
probation and imposing the midterm of six years, defendant contends that the
trial court considered improper factors and ignored other, proper,
factors. We find no abuse of discretion.
The
probation report recommended a state
prison commitment for the midterm of six years, although suggesting that
there were circumstances in aggravation that would justify an upper term. When the probation officer interviewed
defendant, defendant indicated a willingness to comply with the terms and
conditions of probation, stating that he “would never risk going through this
again.†The probation officer noted that
defendant had had years to reflect on his molestation of his daughter and only
expressed willingness to seek treatment after repeating the behavior with his
granddaughter and being held responsible.
He admitted that he considered himself an alcoholic “ ‘in the sense
that [he does not] moderate [his] drinking.
If [he] drink[s], [he] get[s] drunk and it’s usually associated with
[his] depression.’ †He claimed
that no one knew about his drinking which he kept a secret.
At
sentencing, the court stated that it had read and considered the amended
probation report, defendant’s statement, his statement in mitigation, the
victim impact statement by the victim’s mother, letters filed in support of
defendant, and the opinions of the three experts appointed pursuant to section
288.1. The court began by stating its
tentative decision to deny probation for the following reasons: the seriousness of the offense, noting that
defendant had digitally penetrated the victim; the victim’s vulnerability,
citing not just her age but the fact that defendant waited until he thought she
was asleep; his infliction of
emotional injury, citing the breach of trust between a grandfather and
granddaughter; the likelihood the victim will require counseling in the future;
defendant was an active participant; there were no unusual circumstances for
commission of the crime; lack of criminal sophistication or professionalism but
some planning in that defendant went into the victim’s room at night when he
thought she was sleeping; and taking advantage of a position of trust or
confidence (the victim and her younger sister had been visiting defendant and
their grandmother).
The court
stated that it had considered defendant’s lack of a prior criminal record and
his willingness to comply with terms and conditions of probation, noting his
age, education, family background and ties, and that he had begun
counseling. The court stated that it had
“serious concerns†whether defendant would be able to comply, however, due to
his history of alcohol abuse and the psychological and emotional issues he
faced as discussed in the expert opinions.
The court noted that imprisonment would have a significant effect on
defendant based on his age, health, and lack of a prior prison term but that he
had no dependents who would be impacted.
The court recognized that defendant had expressed remorse. The court also stated that it “appears to the
Court that [he] does continue to minimize the extent of his conduct and at
times appears more concerned with the impact of his behavior on himself as
opposed to the impact his behaviors might have on the victim†which had been
demonstrated as recently as in his interview with Dr. Amezaga, the last expert
to interview defendant.
The court
disagreed with the medical assessment that defendant was at a low risk to
reoffend since defendant had minimized his conduct against the victim as well
as the victim’s sister and mother. The
court also concluded that the experts did not fully address the molestation of
defendant’s other granddaughter (the victim’s sister) or his own daughter (the
victim’s mother) at age nine which included oral copulation. The court did consider as a mitigating factor
that defendant was amenable to sexual offender treatment and that he was
willing to participate in outpatient treatment.
The court noted that all experts recommended a grant of probation. The court also noted that it had considered
the general objectives of sentencing and the considerations in granting
probation. The court determined that
there was no substantial likelihood that defendant would succeed on
probation.
The court
tentatively chose the midterm, finding no circumstances in mitigation related
to the crime. The court noted that
defendant had no record and acknowledged wrongdoing at an early stage. The court determined that defendant had led a
productive life and that the victim’s mother did not desire prison. The court noted that defendant had sought
counseling after the discovery of his molestation of the victim. In aggravation, the court found the victim
was particularly vulnerable due to her age.
The court found some planning by defendant and that he took advantage of
a position of trust. The court found
that defendant minimized the extent of his molest of the victim of the offense
of which he was convicted.
The
prosecutor discussed the facts underlying defendant’s offense, noting the
digital penetration, and that defendant had previously touched the victim in
the same manner on another occasion and had rubbed her genitals over her
clothing on three more occasions. The
prosecutor also discussed defendant’s molest of the victim’s sister when she
was visiting him out of state and his molest of his daughter when she was nine
or 10 years of age which involved rubbing, touching and oral copulation. When the daughter told her mother
(defendant’s spouse), defendant’s spouse confronted defendant and he admitted
touching his daughter but blamed it on sleep walking and claimed he had
mistaken his daughter for his spouse.
The
prosecutor noted that the defense-hired expert, Dr. Wuehler, ignored the
evidence of defendant’s conduct involving the other granddaughter and his own
daughter, in concluding that defendant was not a pedophile and was at a low
risk to reoffend. The prosecutor claimed
“there were jurisdictional as well as statute of limitations issues that
prevented the charging of those other victims†but that the uncharged conduct
would have been presented at trial under Evidence Code section 1108.
The
prosecutor cited the report of Dr. Kelly, a licensed clinical
psychologist. The prosecutor noted that
Dr. Kelly concluded that defendant met the diagnosis criteria of a
pedophile.
The
prosecutor also cited the report of Dr. Amezaga who concluded that defendant
did not meet a diagnosis of pedophilia.
The prosecutor argued that the history for Dr. Amezaga’s report was
provided by defendant and his attorney; defendant reported that he had no
history or interest in child pornography and that there had been no other lewd
acts when he had had a supervisory duty over other children when he was
involved in the Boy Scouts and his church.
But, the prosecutor noted, Dr. Amezaga concluded that defendant met the
criteria as an “opportunistic sex offender†and, although concluding as well
that defendant’s risk of reoffending was low, repeated several times in his
report that defendant “must forever be prohibited from having unsupervised
access or control over a minor of either gender, be they family or non-family
members.†The prosecutor argued that the
psychologist’s agenda was to treat while the criminal justice system aims to
achieve justice which includes punishment.
The prosecutor labeled defendant a “predator who is a danger to children
and has been for 28 years.†The
prosecutor stated that the People had agreed to a sentencing lid of six years
“to spare the young victims from the burden of testifying against their
grandfather.â€
The
victim’s mother spoke at sentencing. She
stated that after listening to what had been said at sentencing and having to
relive the events, she wanted to revise her written statement (wherein she
indicated that she did not desire a prison sentence for defendant). Although she forgave defendant, she had no
desire for reconciliation. She wanted
defendant to get help but did not know what was best. She thought prison would “harden him†but she
did not know whether he would “take the steps to get the help he needs†if
granted probation and that concerned her.
Defense
counsel argued that the court was under the “same misimpression†as the
probation officer was in that defendant never had a hearing concerning the
allegations involving his other granddaughter.
Defense counsel claimed that defendant was “perfectly honest†and “acknowledge[d]
the conduct involving his daughter that occurred 28 years ago while at the same
time doing so at his peril when it’s then used against him.†Defense counsel recognized that the court
could consider other victims for purposes of a grant or denial of probation but
objected to the court considering uncharged conduct to “enhance†the sentence
to a midterm. Defense counsel objected
to any finding that there was digital penetration, arguing that the victim described
the touching as rubbing.
With
respect to the reports of the experts, defense counsel noted that Dr. Kelly had
never previously prepared such a report.
Defense counsel argued that none of the reports supported a finding that
defendant is a danger to the community or that he is likely to reoffend. Defense counsel argued for probation, noting
that defendant had already served more than one year in custody, that there was
an opportunity for rehabilitation through outpatient treatment, that he had a
place to live in a retirement community, and that he would have to register as
a sex offender. With respect to remorse,
defense counsel claimed defendant was “in anguish over the acts he has doneâ€
and had attempted suicide twice. Defense
counsel suggested that had defendant received counseling 28 years ago, “this
would not have happened.†Defense
counsel argued that defendant’s crime was a crime of access and that he was not
a predator and there was no danger of repeating the offense.
In the
event probation was denied, defense
counsel sought the mitigated term, citing defendant’s lack of a criminal
record, his acceptance of responsibility, and his remorse. Defense counsel complained that probation had
failed to fulfill its obligation to discuss the counseling and treatment the
victim was receiving.
The court
responded it recognized the dismissed count involved the same victim but noted
that that “still is concerning to the Court that there are two different
events.†The court believed there was
sufficient and reliable information to consider the uncharged conduct involving
the victim’s sister and the victim’s mother for purposes of determining whether
to grant probation and stated that the same would not be considered for the
purposes of selecting the term. The
court also stated its belief that there was sufficient and reliable information
that there had been digital penetration of the victim. Although agreeing that the criteria did not
necessarily define defendant as a pedophile, the court determined that even Dr.
Amezaga’s report failed to sufficiently address other risk factors, defendant’s
anti-social history and chronic substance abuse, the fact there was more than
one child victim, and that the victims were less than 11 years of age.
With
respect to remorse and defendant’s suicide attempts, the court noted that
defendant had had a long history of a major depressive disorder and anxiety
issues and lacked empathy for the victim, citing the psychological evaluations. Hearing nothing to change its indicated
sentence, the court denied probation and imposed a six-year term for “the
reasons previously stated.â€
Defendant
argues that the court’s conclusion that the offense was more serious than other
violations of section 288, subdivision (a), was based on its unsubstantiated
belief that defendant had digitally penetrated the victim. Defendant complains that the court ignored
other facts (there was no physical harm, claim of fear, threat or use of force,
or effort to keep the victim silent) which made the offense less serious.
Defendant
also complains that the court’s finding that defendant had minimized his
conduct and lacked remorse was not supported by the record and that the court’s
citation of the victim’s vulnerability was improper since the victim’s age
(under 14 years) is an element of the offense.
Relying on the contrary opinions of the medical experts, defendant
argues that the court erroneously minimized his lack of a prior criminal history
and his background, education and age.
In citing defendant’s abuse of alcohol, the trial court, defendant
claims, ignored the fact that defendant had sought counseling early and on his
own, suggesting that he would refrain from the use of alcohol. And in imposing the midterm instead of the mitigated
term, the trial court identified the same factors which, defendant contends for
the same reasons, constituted an abuse of discretion.
We review a
court’s sentencing decisions, including granting or denying probation, for an
abuse of discretion. The trial court
possesses broad discretion to determine whether a defendant is eligible for
probation. (People v. Olguin (2008) 45 Cal.4th 375, 379.)
“ ‘All
defendants are eligible for probation, in the discretion of the sentencing
court [citation], unless a statute provides otherwise.’ [Citation.]
‘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.]’ [Citation.]
‘In reviewing [a trial court’s determination whether 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.’
[Citation.]†(
149 Cal.App.4th 1301, 1311.)
“When a
judgment of imprisonment is to be imposed and the statute specifies three
possible terms, the choice of the appropriate term shall rest within the sound
discretion of the court. . . .
The court shall select the term which, in the court’s discretion, best
serves the interests of justice.â€
(§ 1170, subd. (b).) We
review the trial court’s sentencing choice for abuse of discretion. (People
v. Sandoval (2007) 41 Cal.4th 825, 847.)
Section
1203.067, subdivision (a), provides in relevant part, as follows:
“(a) Notwithstanding any other law, before
probation may be granted to any person convicted of a felony 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.
“(2) Conduct a hearing at the time of sentencing
to determine if probation of the defendant would pose a threat to the victim.
. . .
“(3) Order any
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 his or her report to the court. . . .â€
Section
288.1 provides, in relevant part, as follows:
“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.â€
A
sentencing court may consider any dismissed count and the prosecutor can
comment on any matter covered by the report.
(People v. Lamb (1999)
76 Cal.App.4th 664, 674.) “[A]
defendant who is eligible for and requests probation can have no reasonable
expectation about dismissed counts in section 288 cases inasmuch as the court
is required by section 288.1 to order a report on his mental fitness for
probation. In such a situation, not only
may the court consider the dismissed counts, but also the prosecutor may
comment on any subject properly and necessarily covered by a section 288.1
report.†(Ibid.)
Here, the
sentencing court was entitled to consider defendant’s entire history in
determining whether to grant probation.
Another count which originally had been charged in the complaint
involved defendant’s other granddaughter.
Because the offense occurred in another state, the prosecutor
represented that the charge was dismissed for jurisdictional reasons, not that
it could not be substantiated. The
police report reflects that the other granddaughter had described an incident
of molest. Further, the prosecutor noted
that charges involving defendant’s daughter were not brought in view of the
statute of limitations. At sentencing,
defense counsel stated that defendant had “acknowledge[d] the conduct involving
his daughter that occurred 28 years ago.â€
The prosecutor also represented that she planned to introduce the
evidence of uncharged conduct pursuant to Evidence Code section 1108.
As far as
the seriousness of the offense of which defendant was convicted, the victim’s
description of the offense as reflected in the probation report (which
summarized the sheriff’s report and its attachments and supplemental reports)
supports the trial court’s determination of digital penetration. As far as vulnerability, the court cited not
only the victim’s age but also the fact that the victim was sleeping. “The law recognizes that the younger a child
is, the more he or she will be harmed by inappropriate sexual activity. ‘[A] victim’s extremely young age together
with other circumstances like the time and location of the offense can
establish “particular vulnerability†as an aggravating factor.’ [Citations.]â€
(People v. Tuck (2012)
204 Cal.App.4th 724, 734.) As far
as remorse, the trial court could properly read defendant’s letter as if he is
more concerned about himself than the victim.
We have read defendant’s letter as well.
Further, in defendant’s letter, he stated that he “intended no violence
or harm to [the victim], but I also knew what I was doing was wrong.†Despite the legal definition of the crime,
defendant did not believe he committed a violent offense. Finally, defendant abused alcohol, drank
until he got drunk, and attempted suicide when his granddaughters told their
mother what he had done.
Defendant
simply argues the factors defense counsel argued in the trial court. The trial court considered the mitigating
factors defense counsel cited, found there were factors in aggravation and
mitigation, and denied probation and chose the midterm. The trial court’s findings indicate that it
considered all relevant factors in making its sentencing choices which were
well within the bounds of its discretion.
This court does not reweigh the factors or substitute its judgment for
that of the trial court. Defendant has
failed to demonstrate that the trial court’s denial of probation and imposition
of the midterm was arbitrary or irrational.
Disposition
The
judgment is affirmed.
HULL ,
Acting P. J.
We concur:
BUTZ ,
J.
HOCH ,
J.
