P. v. >Martinez>

























Filed 1/28/13 P. v. Martinez CA4/3





















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CORONADO MARTINEZ, Defendant and Appellant.

G046418 (Super. Ct. No. 09NF1167) O P I N I O N

Appeal from a judgment
of the Superior Court
of Orange County,
Steven D. Bromberg, Judge. Affirmed.

Richard Power, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel, Scott C. Taylor and
Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

*
* *

An information charged
defendant Joseph Coronado Martinez with continuously sexually abusing a child under
age 14 over a two-year-period (Pen. Code, § 288.5, subd. (a); count 1)href="#_ftn1" name="_ftnref1" title="">[1]
and committing a forcible lewd act on her (§ 288, subd. (b)(1); count
2). Defendant initially pleaded not
guilty to both counts. But after trial
commenced, he changed his plea on count 1 to guilty, with the understanding he
would be sentenced to a maximum prison term of six or 12 years. The People dismissed count 2 pursuant to
section 288.5, subdivision (c). The
court denied defendant’s request for probation and sentenced him to the low
term of six years on count 1.
(§ 288.5, subd. (a).) On
appeal defendant contends the court abused its sentencing discretion by denying
him probation. We disagree and affirm
the judgment.



FACTS



The victim, L.,
testified at trial (prior to defendant pleading guilty to count 1). She testified that defendant, her paternal
grandfather, molested her in the guest room of his house more than 20 times
beginning when she was in second grade until she was in fourth grade. He touched her breasts and vagina over her
clothes, kissed her and tried to put his tongue in her mouth, and lay atop her
on the bed and rubbed his body against her.
Once he held her hand and made her rub his penis under his clothes. More than once defendant had to go to the
bathroom after his contact with L.
Defendant told L. “it was a secret” and not to tell anyone.

L.’s mother testified
that L. — before or after going to defendant’s house — would vomit in the
middle of the night. L. did not want to
visit defendant’s house anymore. Her
father asked her why, so she told him what had been happening. L. then talked with the police about it.

L.’s father (defendant’s
son) made a recorded telephone call to defendant. In that call, defendant said, “[S]o the therapist is probably gonna report
me and I’ll, I’ll end up going to jail. . . . I’ll
probably end up doing some time, but nothing I can do about it.” When L.’s father asked if he could tell L.
that defendant was sorry, defendant said to tell L. he was sorry and it would
never happen again. Defendant said he
was “sick,” and he knew “it was wrong.”
At one point, defendant said, “We just kissed, kiss and touch
because . . . you know I told her we shouldn’t be doing
this. And she said come on, come on
don’t you love me? . . . And, and all of the sudden I just
gave in to her.” He also said L. touched
his penis: “Yea I was in the restroom
and she went boo, like that and touched it.
I said don’t be doing it. . . . That’s wrong I
told her.”

Y., defendant’s then
44-year-old stepdaughter, testified that when she was six or seven years old,
defendant fondled her vagina with his hand under her clothes. Defendant told Y. not to tell her mother
about it. Y. did not tell anyone about
the incident until she was in her thirties.
But after she had her second child in 1994, she sought counseling and
confronted defendant. Defendant said he
remembered the incident and was sorry.
He promised it would never happen again and he would never do it to
anyone else.

A videotape of
defendant’s interview with a police investigator was played for the jury. In the interview, defendant stated he had
just turned 60 years old. He said L.
came into the restroom when he was urinating and tried to grab his penis; he
told her not to do that. He admitted
kissing L. on the buttocks twice and kissing her vagina over her clothes once
when she was seven years old. It
happened when they were “fooling around,” “playing around.” He said he would get on the bed in the guest
room with L. to watch television. As to
Y., defendant admitted kissing his stepdaughter once on the mouth and “on the
front” when she was seven years old, and touching her vagina over her clothes
and carrying her to the bedroom. These
behaviors started when he was “playing around” with the girls. When asked to fantasize, he said that if he
had not stopped himself after he carried Y. to the bedroom, he would have
undressed her and kissed her body. He
would have had oral sex with L. He said
he has a “problem,” which involves “just things that happen playing around,”
and that he does not “know what’s causing that problem.” He said he was sexually attracted to a
seven-year-old girl because of her innocence and because she was young and
tender.



DISCUSSION



Defendant contends the
court abused its discretion by denying him probation. He asserts all relevant facts pointed toward
granting him probation and that the court’s denial fell outside the bounds of
reason.

In determining
whether to grant or deny probation, a court must consider the probation
report. (§ 1203, subd.
(b)(3).) The probation report describes
aggravating or mitigating facts concerning the crime or the defendant. (Id.,
subd. (b)(1).) Generally, if “the court
determines that there are circumstances in mitigation of the punishment
prescribed by law or that the ends of justice would be served by granting
probation to the person, it may place the person on probation.” (Id.,
subd. (b)(3).)

But for a
defendant convicted of violating section 288.5, additional restrictions on
probation apply. First, under section
1203, and because a section 288.5 violation triggers sex offender registration
requirements (§ 290, subd. (c)), the probation report must “include the
results of the State-Authorized Risk Assessment Tool for Sex Offenders
(SARATSO)” (§ 1203, subd. (b)(2)(C)).
Second, a court may not suspend the sentence of a person convicted of
committing a lewd act on a child under age 14 until the court obtains a report
from a psychiatrist or psychologist on the offender’s mental condition. (§ 288.1.)

Further
limitations on the grant of probation for section 288.5 violators are set out
in section 1203.066. As relevant here,
“[n]otwithstanding Section 1203, or any other law, probation shall not be
granted to” “[a] person who, in violating Section 288 or 288.5 has substantial
sexual conduct with a victim who is under 14 years of age.” (Id.,
subd. (a)(8).href="#_ftn2" name="_ftnref2"
title="">[2] If, however, the substantial sexual conduct
is not pleaded or not proved by the People (or admitted by the defendant in
open court) (as required by § 1203.066, subd. (c)(1)), the court >may grant probation to the defendant, >but only if (1) the court finds
rehabilitation of the defendant is feasible and the defendant is amenable to
undergoing treatment; (2) the defendant is placed in a recognized treatment
program; and (3) the court finds that granting probation would not create a
threat of physical harm to the victim (§ 1203.066, subd. (d)(1)(B)(E))
(the section 1203.066(d)(1) conditions).href="#_ftn3" name="_ftnref3" title="">[3] Here, defendant pleaded guilty to count 1,
which alleged generally a violation of section 288.5. Section 288.5 can be violated in two
ways: (1) by engaging in three or more
acts of substantial sexual conduct (as defined in § 1203.066, subd. (b)) with a
child under the age of 14 years, or (2) by engaging in three of more acts of
lewd or lascivious conduct (as defined in section 288) with a child under the
age of 14 years. Section 288 requires
that defendant have the “intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of [the defendant] or the child.” Thus, under the first prong of section 288.5,
there is no requirement that defendant have the specific intent to arouse
sexual desires; it is enough that defendant engages in substantial sexual
conduct, as defined. Under the second
prong, however, defendant must be shown to have the requisite specific intent.

Count 1 of the
information alleged that defendant violated both prongs of section 288.5;
defendant “did unlawfully engage in three and more acts of substantial sexual
conduct and lewd and lascivious conduct with” L. As the basis for defendant’s guilty plea, he
stated, “[O]n or about and between 6-1-06 & 6-11-08 I willfully and
unlawfully had recurring access to my granddaughter, [L.], a child between the
age of 6-9 years old, and did unlawfully engage in three or more separate lewd
acts upon her body during a period of time over 3 months, with the intent of
arousing and appealing to my sexual interest in the child.” Thus, defendant admitted violating only the
second prong (lewd conduct) of section 288.5, not the first prong (substantial
sexual conduct). Accordingly, the court
could not grant probation unless it was able to find the section 1203.066(d)(1)
conditions to be satisfied.

“A trial court has broad
discretion in determining whether or not to grant probation.” (People
v. Superior Court (Du) (1992) 5
Cal.App.4th 822, 825.) A “defendant
bears a heavy burden when attempting to show an abuse of that discretion.” (People
v. Aubrey (1998) 65 Cal.App.4th 279, 282.)
A “decision denying probation will be reversed only upon a clear showing
that the court exercised its discretion in an arbitrary or capricious
manner.” (People v. Groomes (1993) 14 Cal.App.4th 84, 87.)

At the sentencing
hearing, the court tentatively found defendant was eligible for probation >if the section 1203.066(d)(1) conditions
were met. The court acknowledged it was
required to review the psychiatrist’s section 288.1 report. The court found the following facts under
California Rules of Court, rule 4.414 as to the circumstances of the
crime: (1) Defendant’s offense was more
serious than other instances of the same crime because the victim was his
biological granddaughter whom he “sexually abused . . . on
several occasions over a period of at least two years”; (2) “The victim was
vulnerable when compared with other victims of similar crimes because she was
very young, six years old at one point in time, and considering the family
relationship, she trusted her grandfather”; and (3) The young victim would
carry the emotional injury with her for the rest of her life, especially
because defendant had violated her trust.
The court had searched for mitigating factors relating to the crime and
had found none.

The court found
defendant’s molestation of his stepdaughter, around 30 years ago, was strong
evidence of a pattern of continuing conduct.
It also found defendant appeared to be remorseful and had no history of
prior criminal conduct, “none at least that he was charged with.” The court
did not believe that, given defendant’s conduct over a span of 30 years, his
rehabilitation was feasible. The court
also concluded that given defendant’s history, he was “a danger to the victim
as well as others.” Accordingly, the
court denied defendant’s application for a grant of probation.

The court did
not abuse its discretion by denying probation to defendant. Defendant was eligible for probation >only if all the section 1203.066(d)(1)
conditions were met. They were not. The court expressly found that rehabilitation
of defendant was not feasible, given his history over a 30-year period. Substantial evidence supports the court’s
finding. The record shows defendant had
a problem he could not control which caused him to molest Y. and L. when each
girl was six or seven years old.href="#_ftn4"
name="_ftnref4" title="">[4]

But defendant
challenges the court’s findings on the California Rules of Court,
rule 4.414 criteria, arguing, for example, that all victims under age 14
are vulnerable and therefore L. at age six was not particularly vulnerable. These
arguments are unpersuasive. The court’s
findings are supported by substantial evidence.
And, in any case, defendant was ineligible for probation under section
1203.066, subdivision (d)(1)(B), since the court found he was not amenable to
rehabilitation.



DISPOSITION



The
judgment is affirmed.









IKOLA,
J.



WE CONCUR:







ARONSON,
ACTING P. J.







THOMPSON, J.