P. v. Hughes

Filed 2/10/09 P. v. Hughes CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

This case appears before us yet again following the latest in a series of remands for resentencing. In this appeal defendant complains that the trial court erred by considering his non-pedophile diagnosis as an aggravating rather than mitigating factor, and declined to consider other mitigating factors. We find that no sentencing error occurred and affirm the judgment.

STATEMENT OF FACTS[1]

Christina is the mother of the victim, Kelly, and two other children.[2] Christina was in a romantic relationship with the defendant for six years. Defendant continued to reside with Christina and her three children in 2003, although she stated that in the past year they were solely roommates and not involved in a dating relationship. All three of Christinas children are from a prior relationship, but they referred to defendant as dad.

On October 19, 2003, Christina filed a report with the Sonoma County Sheriffs Department of sexual abuse inflicted on her daughter Kelly, who was then nine years old. In conjunction with the police report Christina discussed the accusations of sexual abuse related to her by Kelly. She stated that Kelly told her defendant makes her give him massages while he lies on the bed naked. If she does it wrong defendant makes her pull her pants down and he shows her how he wants to be rubbed. Kelly also disclosed to Christina that defendant fondled her vagina with his hand, and on another occasion had tried to place his penis in her vagina and her anus. Two days before, Christina noticed that her daughters vagina was very red, although Kelly did not then disclose any sexual abuse to her mother. Christina added that defendants actions as reported by Kelly were [very] similar to her own personal experiences with defendants typical sexual behavior in the past.

Kelly was interviewed on October 20, 2003. She stated that at the start of the school year about two months before defendant asked her to give him a massage. She declined, but after he yelled at her they went into his bedroom. He locked the door, removed his clothing, and lay down on the bed on a towel. Kelly started to massage defendant, but he told her that she was doing it wrong, and directed her to remove her clothing so he could show her how to do it correctly. As defendant showed her massage techniques, he also attempted to place his penis in her privates. 

Kelly indicated that the assaults occurred thereafter every day of the week while her mother was at work. She estimated that defendant tried to place his penis inside her vagina approximately 12 times and 12 times in her buttocks. He also made her massage his penis on three separate occasions using a blue cream. When Kelly complained to defendant that she did not want to massage his penis, he stopped making her. She also stated that defendant drinks a lot and was drunk during most of the incidents. She denied that any type of oral copulation occurred during the massages.

Kelly described two specific incidents of sexual molestation, one of which occurred on October 16, 2003. She was called to defendants room ostensibly to do laundry, but he changed his mind and said he wanted the massage. He appeared to be intoxicated. Defendant locked his bedroom door, removed his clothing, and reclined on the bed. According to Kelly, he then removed her clothing, and while massaging her tried to stick his penis in my peepee.  She was in pain and attempted to move away, but he made repeated attempts to stick his penis inside her vagina and buttocks. That night, Kelly showed her mother her vagina, but was afraid to say what happened because defendant had threatened to beat them if he ever went to jail.

The most recent incident happened on October 18, 2003, in Kellys bedroom. Defendant removed his shirt and the victim massaged his tail bone near his buttocks. Kellys brother entered the room and asked defendant why the victim was giving him a massage. The victims brother said that he heard defendant ask the victim for massages on several occasions, during which he attempted to enter the bedroom, but the door was locked and defendant directed him to go away. Through a bathroom window the victims brother also observed defendant and the victim in the shower together, although he did not observe the victim touch defendant.

Defendants daughter was also interviewed. She stated that defendants behavior had changed recently. He seemed to be drinking a lot, and was irritable. Defendants daughter heard the victim refuse a request from him for a massage on one occasion. She never witnessed the victim massage defendant.

After the interviews, Christina placed a pretext telephone call to defendant. During the conversation defendant admitted that the victim massaged him, but insisted that he had a towel on when the massages occurred. Defendant admitted to Christine that he had been drinking too much. He acknowledged to her that he may have made a mistake by touching Kelly like I wasnt supposed to. Defendant also stated to Christina that the victim touched his penis one time, but claimed she liked it.

In an interview with the probation officer defendant denied many of the victims allegations, but admitted removing her clothes, getting into the bathtub with her, and inadvertently placing his penis between her legs. He agreed that his behavior was inappropriate. Defendant stated that he was intoxicated during each incident with the victim. He expressed sorrow and remorse.

STATEMENT OF PROCEDURAL HISTORY

Defendant was arrested on October 22, 2003. On the same date a felony complaint was filed which charged defendant with five counts of lewd and lascivious acts on a minor under the age of 14. (Pen. Code, 288, subd. (a).) It was further alleged as to each count that the defendant had substantial sexual contact with the minor. (Pen. Code  1203.066, subd. (a)(8).)

Defendant waived a preliminary hearing on December 5, 2003, and entered a plea of guilty to counts one and two pursuant to a negotiated disposition. The People moved to dismiss the remaining counts. The allegations under Penal Code[3] section 1203.066, subdivision (a)(8) were stricken by the court. The matter was referred to the probation department for a report and a doctor was appointed pursuant to section 288.1. The probation report recommended that defendant receive a state prison sentence of 10 years.

A psychological evaluation of defendant by Dr. Thomas Cushing was conducted in December of 2003. Defendant admitted that he had the victim wash his penis while in the bathtub, and put his penis between the victims legs on several occasions. He acknowledged that his behavior was inappropriate. Dr. Cushing concluded that defendant met the threshold criteria of a pedophile, but was a suitable candidate for sex offender treatment.

A sentencing hearing was held on February 19, 2004, which included comments from the doctor and Christina. The court sentenced defendant to the aggravated term of 8 years on count one and 2 years on count two to run consecutively for a total term of 10 years. Defendant was ordered to pay restitution of $4,000 pursuant to section 1202.4, subdivisions (a)(3) and (b), and section 1202.45, to register pursuant to section 290, to provide blood and saliva samples pursuant to section 296, to submit to AIDS testing pursuant to section 1202.1, and to have no contact with the minor victim pursuant to section 1202.05. The defendant was awarded 139 days of credit.

Defendants first appeal raised no issues and asked this court for an independent review of the record to determine whether there were any issues that would, if resolved favorably to appellant, result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436; see also Smith v. Robbins (2000) 528 U.S. 259.) Upon review of the record we found no arguable issues, although we ordered an amendment of the abstract of judgment to require AIDS testing.

We subsequently granted defendants petition for rehearing to consider the impact of the decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), upon defendants sentence. We concluded that under Blakely the upper term imposed upon defendant must be vacated, but otherwise affirmed the judgment as amended. The California Supreme Court then transferred the case back to this Court for reconsideration in light of People v. Black (2005) 35 Cal.4th 1238 (Black). In accordance with the opinion in Black we found no error in the imposition of upper and consecutive terms under the California Determinate Sentencing Law (DSL), and therefore vacated our prior opinion and affirmed the judgment of the trial court.

Then we were confronted with Cunningham v. California (2007) 549 U.S. 270(Cunningham), in which the United States Supreme Court reversed the Black decision, and concluded, Contrary to the Black courts holding, our decisions from Apprendi^[[4]^] to Booker^[[5]^] point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Cunningham, supra, at p. 294.) This case was remanded to us again for further consideration in light of Cunningham.

In accordance with the decision in Cunningham, we reverted to our (pre-Black) position that imposition of an upper term upon defendant was error, and followed the federal standard of review of constitutional errors (Chapman v. California (1967) 386 U.S. 18, 24), to determine if the error was reversible. (People v. Neal (2003) 31 Cal.4th 63, 86; People v. Carter (2003) 30 Cal.4th 1166, 12211222; People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) We found that all of the sentencing factors relied upon by the trial court to impose the upper term relate to the current offenses rather than any aggravating circumstances that fall within the recognized exception from the right to a jury trial articulated in Apprendi for an increase in penalty due to the defendants prior convictions or other associated recidivist conduct. (Apprendi, supra, 530 U.S. 466, 490; People v. Kelii (1999) 21 Cal.4th 452, 455; People v. Taylor (2004) 118 Cal.App.4th 11, 28; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314; People v. Belmares (2003) 106 Cal.App.4th 19, 27; People v. Thomas (2001) 91 Cal.App.4th 212, 222223; Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 154.) We thus could not determine that beyond a reasonable doubt the error did not contribute to the judgment, and concluded that the imposition of the upper term on count one must be reversed. We remanded the case to the trial court for the limited purpose of conducting sentencing proceedings in accordance with the requirements of Blakely and Cunningham.

The California Supreme Court thereafter issued opinions in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), and People v. Black (2007) 41 Cal.4th 799 (Black II). The case was remanded to us yet again for reconsideration in light of the Sandoval and Black II opinions. We once more concluded that the Blakely error associated with imposition of the upper term could not be considered harmless, and remanded the case to the trial court for resentencing.

At the resentencing hearing on July 16, 2008, the trial court considered an updated sentencing report by the probation department and an updated evaluation of defendant conducted by Dr. Cushing pursuant to section 288.1. Dr. Cushing reviewed the records in the case and performed a reexamination of defendant in May of 2008. He reported that a comparison of defendants past and current evaluations indicated he had matured both psychologically and emotionally. According to Dr. Cushing, the evidence did not suggest a formal diagnosis of Pedophilia, and defendant no longer represented any threat to the victim. The updated probation report continued to recommend the maximum possible commitment to state prison of 10 years, unless the aggravating factor of breach of a position of trust (rule 4.421(a)(11)) was stricken in which case the middle term for count one was recommended.

Defense counsel argued at the sentencing hearing that in light of Dr. Cushings most recent evaluation which indicated defendant was not a pedophile, his recognition of wrongdoing, his remorse, and his psychological improvement, the courts discretion should be exercised in favor of imposing a middle or lower term on count one. The court took issue with defense counsels contention that a normal person or non pedophile was less culpable for acts of sexual molestation. The court imposed the upper term of 8 years based on the following articulated factors: defendants breach of a position of trust, the planning of the offenses that included locking the door on more than one occasion, and the repeated acts with a victim of this age.

DISCUSSION

I. Improper Consideration of an Aggravating Factor.

Defendant argues that the trial court erred by considering his non-pedophilia diagnosis as an aggravating rather than mitigating factor. Defendant points out that the California courts and legislature have distinguished pedophiles from those child sexual abuse offenders characterized as intrafamilial regressive offenders, with the latter group into which he falls having a reduced recidivism rate and greater amenability to rehabilitation. (People v. Jeffers (1987) 43 Cal.3d 984, 993996; People v. Groomes (1993) 14 Cal.App.4th 84, 89.)[6] He complains that the trial court appears to have been completely unaware of the positive aspect of defendants classification as a nonpedophile, and thus improperly considered it as an aggravating factor.

We do not disagree with the proposition suggested by defendant that intra-family or regressed offenders may receive treatmentdifferent from that offered pedophiles due to their greater amenability to rehabilitation. For instance, former section 1203.066, subdivision (c),[7] which provides an exception to mandatory imprisonment for intra-family sexual offenders,  is premised on the rationale that (1) in contrast to pedophiles who have an exclusive lifelong attraction to children, some adults with age-appropriate mates regress by molesting young family or household members for situational or opportunistic reasons, (2) such molesters can successfully reform if they receive both punishment and treatment, and (3) mandatory prison sentences, as opposed to jail time and probation, could do more harm than good in some [intra]family molestation cases, as the victim could feel a sense of guilt for bringing shame on the family or causing the household to dissolve, and loved ones who are emotionally and/or financially dependent on the molester could blame or even abandon the victim, which in turn could deter victims and their families from reporting the crime, from cooperating with law enforcement officials, and from participating in counseling to repair the damaged relationship. [Citations.] (People v. Hammer (2003) 30 Cal.4th 756, 769770.)

We do not find, however, that the trial court committed prejudicial error by using defendants lack of pedophilia as an aggravating factor. We first observe that the classification of defendants psychological state is subject to some uncertainty in the record. Dr. Cushings two evaluations, undertaken years apart, reached different conclusions. Two months after the commission of the offenses, when the first psychiatric examination was conducted in December of 2003, Dr. Cushing declared that defendant met the criteria for a pedophile but was nevertheless a suitable candidate for sex offender treatment. By May of 2008, although defendant did not receive any sex offender treatment while he was incarcerated, Dr. Cushing offered the revised opinion that defendant demonstrated significant gains, and the evidence did not suggest a formal diagnosis of pedophilia. In the second evaluation Dr. Cushing also reiterated his prior view that defendant would be an appropriate candidate for sex offender treatment with an excellent prognosis with respect to treatment outcome. In both reports Dr. Cushing referred to sex offender literature that distinguishes male sex offenders who molest their stepdaughters from sex offenders who molest extra-familial female victims. In brief, the sex offender literature has found that intra-familial molesters are significantly less likely to reoffend and typically present as appropriate for sex offender treatment. We do not know if Dr. Cushings second evaluation was based merely upon a reconsideration of his perception of defendant following the reexamination in May of 2008, or the conclusion that despite the lack of treatment defendant had been transformed from a pedophile at the time of commission of the offenses to an intrafamilial regressive sex offender. Whatever the reason for the altered opinion, the sentencing court did not have before it a definitive declaration of defendants psychological classification as it related to the sex offenses.

In any event, we are not persuaded that the trial court considered Dr. Cushings opinion as either an aggravating or mitigating factor. Although the court mentioned that commission of sexual molestation by a normal person or non pedophile may be more despicable and frightening to the public than acts by a pedophile due to the perpetrators awareness and command of their thought processes, we do not find the courts proclamation, when considered in context and in its entirety, to constitute a statement of an aggravating circumstance. As we read the record, the courts statements were merely a response to defense counsels affirmation that according to Dr. Cushings report defendant is not a pedophile. The court countered defense counsels comments by indicating that even if defendant was not a pedophile the lack of compulsion associated with the crimes failed to ameliorate culpability. The court then proceeded to separately articulate its reasons for the sentence choice of an upper term. The court certainly discounted counsels assertion that defendants lack of pedophilia mitigated the crimes. We do not interpret the trial courts comments to additionally mean that defendants status as a nonpedophile was considered an aggravating factor.

We further conclude that the court had the discretion to find that even if defendant was a nonpedophile he was not therefore entitled to a mitigated term. The court was not mandated by rules 4.420, 4.421 and 4.423 to consider Dr. Cushings second opinion as either a mitigating or aggravating circumstance in the case. The court adopted the justified view that lack of pedophilia suggested a more blameworthy mental state which may be punished more severely. Conversely, the court could also have determined that defendant, as a nonpedophile, was more amenable to treatment and less likely to reoffend. The trial court was not precluded by the evidence from taking either position, and did not abuse its discretion by commenting that defendant was not entitled to favorable sentencing consideration as a nonpedophile.

II. The Courts Failure to Consider Mitigating Circumstances.

Defendant also claims that the sentencing court failed to consider several factors in mitigation in addition to his non-pedophilia that may have resulted in imposition of the middle or lower term: his severe alcoholism that negated a finding of deliberate premeditated conduct, his self-directed rehabilitation in state prison, and his minimal prior record. He adds that upon proper consideration of the mitigating factors [t]here was a reasonable probability of a more favorable sentence . . . .

We find nothing in the record which indicates that the trial court failed to exercise its informed discretion or direct its attention to the potential mitigating factors in the case. In making sentencing choices, the trial court need only state [its] reasons ( 1170, subd. (c)); it is not required to identify aggravating and mitigating factors, apply a preponderance of the evidence standard, or specify the ultimate facts that justify[] the term selected. [Citations.] Rather, the court must state in simple language the primary factor or factors that support the exercise of discretion. [Citation.] (Sandoval, supra, 41 Cal.4th 825, 850851.) The trial court was not required to state reasons for rejecting a factor in mitigation. (People v. Downey (2000) 82 Cal.App.4th 899, 919.) The record before us reveals that the court gave thorough consideration to all of the pertinent information, including the circumstances of defendants alcoholism, his rehabilitation efforts, and criminal history, before deciding upon the appropriate term for count one. (People v. Reid (1982) 133 Cal.App.3d 354, 370.) Nothing more was required of the court.

We also conclude that under the facts presented here the court was not required to find that defendants alcoholism was a mitigating factor. Alcoholism does not always constitute a mitigating factor. Rule 4.423(a)(4) specifies as a mitigating factor that, The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense . . . . Rule 4.423(b)(2) recognizes the additional mitigating factor that the defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime. Sentencing error may be found where the record affirmatively shows the court failed to contemplate alcoholism as a mitigating factor under circumstances that clearly demonstrated excuse or reduced culpability, or improperly referred to alcoholism as an aggravating factor. (See Peoplev. Reid, supra, 133 Cal.App.3d 354, 370; People v. Simpson (1979) 90 Cal.App.3d 919, 926927.) But where, as in the present case, the court was familiar with the reference in the probation report to defendants alcoholism, the condition was apparently a long-standing one that defendant did not deal with effectively before the offenses were committed, and the facts of the case particularly the repeated acts, the planning and sophistication indicate that alcoholism did not impair defendants mental condition, reduce his ability to plan, or otherwise partially excuse the crimes, the court did not err by failing to mention alcoholism as a mitigating factor. (See People v. Downey, supra, 82 Cal.App.4th 899, 919; Peoplev. Reid, supra, at p. 371; People v. Bejarano (1981) 114 Cal.App.3d 693, 707708; People v. Gaskill (1980) 110 Cal.App.3d 1, 5; People v. Davis (1980) 103 Cal.App.3d 270, 280281; People v. Dixie (1979) 98 Cal.App.3d 852, 855.)

We reach the same conclusion with respect to the factors of defendants rehabilitation and comparatively minimal prior record. Those factors were before the court, nothing indicates they were ignored, and the court was not required to determine that they mitigated punishment. Finally, the record is replete with aggravating circumstances, only one of which was necessary to support the imposition of an upper term. (See People v. Osband (1996) 13 Cal.4th 622, 729730; People v. Lincoln (2007) 157 Cal.App.4th 196, 205; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1516.) We find no sentencing error or abuse of the trial courts discretion.

Accordingly, the judgment is affirmed.

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[1] The facts are taken from the probation report.

[2] The minor is referred to in the probation report as Jane Doe and in the complaint as Kelly. We will refer to her by the name used in the complaint; we will refer to her mother only by her first name Christina.

[3] All further statutory references are to the Penal Code; all references to rules are to the California Rules of Court.

[4]Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).

[5]United States v. Booker (2005) 543 U.S. 220.

[6] A pedophile or fixated offender is defined as a man (there are virtually no female pedophiles) who throughout life is sexually attracted exclusively to children, usually boys, within a particular age range. [Citation.] Incestuous or intrafamily offenses are committed by regressed offenders, men who are sexually attracted to adult women but who, for a variety of reasons, have engaged in sexual relations with a child, usually a girl. (People v. Jeffers, supra, 43 Cal.3d 984, 994, fn. omitted.)

[7] Former section 1203.066, subdivision (c), which was effective through December 31, 2005, provided in part: (c) Paragraph[] . . . 8 . . . of subdivision (a) shall not apply when the court makes all of the following findings: [] (1) The defendant is the victims natural parent, adoptive parent, stepparent, relative, or is a member of the victims household who has lived in the victims household. [] (2) A grant of probation to the defendant is in the best interest of the child. [] (3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence. [] (4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. While removed from the household, the court shall prohibit contact by the defendant with the victim, except the court may permit the supervised contact, upon the request of the director of the court ordered supervised treatment program, and with the agreement of the victim and the victims parent or legal guardian, other than the defendant. As used in this paragraph, contact with the victim includes all physical contact, being in the presence of the victim, communication by any means, any communication by a third party acting on behalf of the defendant, and any gifts. [] (5) There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so. The court shall state its reasons on the record for whatever sentence it imposes on the defendant. The substance of subdivision (c) is now found in subdivision (d) of section 1203.066.

* Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.