P. v. Hurtado















Filed 2/24/12 P. v. Hurtado CA4/1













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.





COURT OF APPEAL,
FOURTH APPELLATE DISTRICT



DIVISION ONE



STATE OF CALIFORNIA






>

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY A. HURTADO, Defendant and Appellant.

D058979 (Super. Ct. No. SCD 157374)

APPEAL
from an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Peter L. Gallagher, Judge. Reversed with directions.

A
judge denied defendant Anthony Hurtado's motion to reduce a prior felony
conviction to a misdemeanor after 10 years and successful completion of
probation. Hurtado appeals, contending
that the trial court failed to properly exercise its discretion when
considering his motion. We agree with
Hurtado, reverse the order, and remand the decision to another judge for
consideration.

FACTS AND PROCEDURE

In
1999, Hurtado, then 19 years old, solicited and obtained a videotape containing
child pornography. San
Diego postal inspectors, who were conducting a sting
operation on the site, arranged for controlled delivery of the videotape. Hurtado later confirmed that he watched the
videotape once and then threw it away.
He also admitted to downloading approximately 50 digital images of child
pornography featuring 8- to 12‑year-old girls engaged in oral and vaginal
sex with older men.

In
2001, Hurtado was charged with one count of causing the distribution of matter
depicting a person under 18 involved in sexual
conduct (Pen. Code,href="#_ftn1"
name="_ftnref1" title="">[1]
§ 311.1, subd. (a)); one count of advertising for sale and distribution of
obscene matter depicting a person under 18 involved in sexual conduct (§
311.10); three counts of possessing material depicting a person under 18
involved in sexual conduct (§ 311.11); and three counts of developing,
duplicating, printing, and exchanging obscene matter depicting a person under
18 involved in sexual conduct (§ 311.3).
Hurtado pleaded guilty to violating section 311.1, and all other charges
were dismissed because they were barred by the relevant statutes of
limitation. The court sentenced Hurtado
to three years of probation and required him to register as a sex offender for
the rest of his life pursuant to section 290.

In
June 2010, Hurtado filed a motion to reduce his conviction to a misdemeanor
pursuant to section 17, subdivision (b)(3).href="#_ftn2" name="_ftnref2" title="">[2] He argued that he had successfully completed
probation on July 1, 2004; he had no other criminal history; during probation,
he voluntarily completed one year of therapy and voluntarily submitted to a
polygraph examination; he was only 19 years old at the time of the offense; he
was 30 years old at the time of the motion, had been gainfully employed for
over 10 years with the same company, begun his own consulting business on the
side, and had been married for two years.
The district attorney filed a written opposition to the motion, arguing
that, "some charges should always remain felonies simply because of the
underlying conduct."

In
consideration of the motion, defense counsel submitted supplemental information
to the court in January 2011. This
included a copy of Hurtado's statement made to police at the time of his
arrest, in which he admitted to soliciting the video and throwing it away after
watching it. In the statement, Hurtado
apologized and acknowledged that his actions were wrong. Defense counsel also included copies of five
psychiatric evaluations conducted between 2000 and 2010 to which Hurtado
voluntarily submitted. The evaluations
concluded that Hurtado's risk of recidivism was less than one percent, that he
has no significant psychological problems, that his sexual interest indicates a
"nondeviant" result, and that Hurtado does not present a risk to the
community.

At
a hearing later that same month, the district attorney stated that it was
opposed to reducing the charges to a misdemeanor since "[t]his was not
just a simple viewing or possession of material. This was a solicitation." Defense counsel argued that Hurtado was only
19 years old at the time of the offense, he threw the material away immediately
after viewing it, he took two polygraph exams to prove he had no violations of
his probation, and five psychologists found he was not a risk to the community.


The
court stated that it had received the supplemental material from defense
counsel and that it "looked at it."
In ruling on the motion, the court merely said, "I think some
conduct should stay felonies. I'm not
going to reduce, but I will expunge."
The court gave no other reasoning for its decision and adjourned the
hearing without further discussion.

DISCUSSION

On
appeal, the burden is on the party attacking the sentence to clearly show that
the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing objectives,
and its discretionary determination to impose a particular sentence will not be
set aside on review. (>People v. Superior Court (>Alvarez) (1997) 14 Cal.4th 968,
977-978.) A decision will not be
reversed merely because reasonable people might disagree. (Id.
at p. 978.)

Section 17,
subdivision (b)(3) allows the reduction of "wobbler" offenses--crimes
that, in the trial court's discretion, may be sentenced as either felonies or
misdemeanors--upon imposition of a punishment other than imprisonment or by
declaration as a misdemeanor after a grant of probation. (Alvarez,
supra, 14 Cal.4th at p. 974.) The
court's discretion is contextual, and factors which direct similar sentencing
decisions are relevant, such as " 'the nature and circumstances of
the offense, the defendant's appreciation of and attitude toward the offense,
or his traits of character as evidenced by his behavior and demeanor at the
trial.' " (>Id. at p. 978.) When considering these factors, the court
should also consider the general objectives of sentencing set forth in the
rules of the court. (>Ibid.)

Even
under the broad discretion conferred by section 17, subdivision (b)(3), such
discretion implies the "absence of arbitrary determination, capricious
disposition, or whimsical thinking."
(People v. Giminez (1975) 14
Cal.3d 68, 72.) Courts must, at the very
least, state the reasoning behind their decisions on the record.

Here,
the court neglected to state on the record its reasoning for denying Hurtado's
motion. All the court stated was that it
"looked at" all the material provided by defense counsel, and that
"I think some conduct should stay felonies." While the trial court is certainly entitled
to the view that "some conduct should stay felonies," the Legislature
declared section 311.1 to be a so-called "wobbler." That is, a violation of that section may be
punishable either as a felony or a
misdemeanor.

The
court here offered no explanation or reasoning for its decision, other than the
terse comment quoted above. There is no
evidence that the court gave Hurtado or the motion any individualized consideration,
which is an abuse of discretion.
Whatever the court's personal views may be, petitioners have the right
to be heard and to have the request considered on the merits. There is nothing in the record that indicates
that the court did either.

We
will not disturb the court's exercise of judgment unless we find that no
reasonable judge could have reached the same result. In this case, we simply do not have enough
information before us to make that determination. There is a clear lack of consideration on the
part of the trial court here. We
therefore take no position on the issue of whether Hurtado's motion to reduce
should be granted or denied, and remand this decision to superior court for
consideration by a different judge, with orders to fully review and consider
all materials.

DISPOSITION

The
order is reversed and remanded for consideration by a different judge.







HUFFMAN,
J.



WE
CONCUR:







McCONNELL, P. J.







O'ROURKE, J.