P. v. Mendez
Filed 12/27/12 P.
v. Mendez CA1/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THE PEOPLE,
Plaintiff and
Respondent,
v.
SANTIAGO SERVIN MENDEZ,
Defendant and
Appellant.
A134589
(Napa County Super. Ct.
No. CR-159016)
Following a no contest plea, the
trial court found defendant Santiago Servin Mendez guilty of a felony violation
of Penal Code section 288, subdivision (a)
defendant to the midterm of six years’ state imprisonment. Defendant contends the court abused its
discretion in denying probation. We
disagree and affirm.
In a complaint filed October 13, 2011, defendant was charged with three felony counts of violating
section 288, subdivision (a). Three
specific acts against the then 13-year old victim, occurring between September
9 and October 9, 2011, were identified: count 1 related to “kissing, first
time;†count 2 related to “kissing, second time,†and count 3 related to
“touching breasts and vaginal area†of the victim. At his arraignment, defendant pleaded not
guilty to all charges.
On October 26, 2011, defendant entered a change of plea, pleading no contest to count
1. On the motion of the district
attorney, the trial court dismissed counts 2 and 3 and referred the matter for
a presentencing report.
The report, submitted November 22, 2011, noted defendant, in 1999, had been convicted of a felony violation
of section 261.5, subdivision (d) (unlawful sexual intercourse by person 21
years of age or older with minor under 16 years of age). He had also been convicted of misdemeanor
battery in 1999 (§ 242) and theft in 2000 (§ 484, subd. (a)). The report also stated defendant had been
tested on the Static-99R, “an actuarial measure of risk for sexual offense
recidivism,†and had scored on four of the ten factors, placing him in the
“Moderate-High Category for being charged or convicted of another sexual
offense.†The probation officer
concluded defendant did not appear to be “appropriate for a grant of
probation,†and recommended denial of probation.
Defendant’s trial counsel filed a
sentencing memorandum and statement in mitigation. In arguing for probation, counsel requested
the matter be referred to probation for a
determine defendant’s suitability for probation, notwithstanding his conviction
of a violation of section 288, subdivision (a).
(§ 288.1; see also § 1203.067, subd. (a)(3).) Two days later the trial court continued
sentencing and ordered a psychological assessment pursuant to
section 288.1.
Psychiatrist Madeline Andrew
submitted this assessment on January 9, 2012. Dr. Andrew noted defendant, following
his 1999 conviction under section 261.5, subdivision (d), had married the
15-year-old victim. The couple had lived
together for nine years, had two children, and were now separated but still
married. She, too, tested defendant with
the Static-99R, and found he scored on three of the 10 factors, placing him in
the “moderate to low risk category for recidivism.†Adjusting this score due to
the fact defendant’s prior sexual offense occurred over five years before his
current conviction, she placed defendant in the “low risk category for
recidivism.†Dr. Andrew concluded
defendant’s risk of reoffending in the community was low, rehabilitation was
feasible, and defendant was amenable to treatment. She recommended, if the trial court granted
probation, that its terms prohibit defendant from contacting the victim as long
as she remained a minor, and require him to abstain from alcohol, noting
finally “probation is not in the best interest of the child victim.â€
At the
the trial court identified “two really significant factorsâ€â€”defendant had “done
this kind of conduct previously [and] . . . was more than on notice
that the behavior . . . was illegal,†and he was now 34 years old, more than 20
years older than the victim. The court
denied probation based on the nature, seriousness and circumstances of the
offense, that the victim was “particularly vulnerable†and defendant had taken
advantage of a position of trust and confidence, that defendant had a prior
record that included unlawful sexual conduct, and his prior performance on
probation had been poor. (See Cal. Rules
of Court, rule 4.414(a)(1), (3), (9) & (b)(1)-(2).)
defendant to the midterm—six years in state prison.
Defendant’s appeal followed, limited
to postplea issues. (See § 1237.5;
rule 8.304(b)(4)(B).)
Discussion
Defendant
contends the trial court abused its discretion by sentencing him to state
prison given the “overwhelming evidence†supporting probation.
numerous and varied. He maintains
kissing the 13-year-old victim was far “less egregious†than most acts punished
under section 288, subdivision (a). He
points out there was no Harvey
court could not consider the facts underlying the dismissed counts. He contends the court’s emphasis on his age
as an aggravating circumstance was “arbitrary,†since punishment for a
violation of section 288, subdivision (a), does not provide for
differentiation based on the age of the perpetrator. He claims consideration of his age should have been mitigated by the
victim’s own age at the time, since at 13, she was approaching the “outer
limits†of those protected by section 288, subdivision (a) (i.e., those under
the age of 14). He similarly claims,
given that the victim was 13, the court improperly characterized her as
“particularly vulnerable.†He further
asserts the victim “acted out†and initiated contact with him, demonstrating a
maturity beyond her age, far from the “defenseless position†assumed by the
court. He also claims he was a “relative
stranger†to the victim (a “neighbor†who had been introduced to her by his
cousin) and thus was not in a position of “trust†and “confidence.†In addition, he contends his prior
convictions do not suggest a pattern of increasingly serious criminal conduct,
and his prior performance on probation could not properly be characterized as
poor.
We review the court’s
sentencing choice under the abuse of discretion standard. A sentencing court enjoys broad discretion
in determining whether to grant or deny probation. A defendant who is denied probation bears a
heavy burden to show the trial court has abused its discretion. (People v. Carbajal (1995) 10 Cal.4th 1114,
1120.) A
of probation generally rests within the broad
discretion of the trial court and will not be disturbed on appeal except on a
showing that the court exercised its discretion in an arbitrary or capricious
manner, that is, when that court has exceeded the bounds of reason, all of the
circumstances being considered. We do
not interfere with that court’s exercise of discretion when it has considered
all facts bearing on the offense and the defendant to be sentenced. (People v. Downey (2000) 82
Cal.App.4th 899, 909-910.)
We
see no merit in defendant’s claims regarding the trial court’s decision to deny
probation. That defendant would
entertain sexual advances from a 13-year -old child, even if limited to a
single “kiss,†cannot but support, under the abuse of discretion standard, a
determination that the nature of defendant’s offense was serious. (Rule 4.414(a)(1).) Similarly, we do not view as arbitrary or
capricious the court’s conclusion that the 13 year old was in a vulnerable
position as compared to defendant, nor its conclusion that defendant violated a
duty of trust and confidence arising from the fact he is an adult, with
presumed greater maturity. (Rule
4.414(a)(3) & (9).) We reject
absolutely the notion that the egregiousness of defendant’s conduct with the
13-year-old victim should be minimized because she was approaching the age
limit, 14 years of age, of the protections afforded by section 288, subdivision
(a). Finally, we decline, as we must, to
reweigh the trial court’s assessment as to the gravity of defendant’s prior
convictions and his prior performance on probation.
We
therefore conclude the trial court acted well within its discretion in
declining a grant of probation.
Disposition
The judgment is affirmed.
_________________________
Banke,
J.
We concur:
_________________________
Margulies,
Acting P. J.
_________________________
Dondero, J.
references are to the Penal Code unless otherwise indicated.
are to the California Rules of Court.
