P. v. Roberts

Filed 6/16/08 P. v. Roberts 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yuba)

----

After defendant Marcus Lee Roberts entered a guilty plea to two counts of child molestation (Pen. Code, 288, subd. (a)) with an express waiver of his rights under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], the trial court denied probation and sentenced him to state prison for the aggravated term of eight years plus a consecutive two-year term. In a previous appeal, this court vacated the sentence and denial of probation, and remanded for a new probation and sentencing hearing. (People v. Roberts (Mar. 15, 2006, C049129) [nonpub. opn.] (Roberts I).)

On remand, the trial court conducted a new probation and sentencing hearing, after which it again denied probation and imposed the same aggregate prison term of 10 years. Defendant again claims on appeal that the trial court abused its discretion by imposing a prison term instead of probation. In the alternative, he asserts that the trial court abused its discretion by imposing the upper term. We reject both contentions and affirm.

BACKGROUND

Prior Proceedings -- Case No. C049129

For the underlying facts related to the offenses and sentencing in the prior proceeding, we rely upon our previous unpublished opinion in Roberts I.

An information charged defendant with two counts of committing a lewd and lascivious act against N.V. and M.R., both boys under the age of 14 years. (Pen. Code, 288, subd. (a).)^[1] Defendant served as a church mentor to the victims. At the time of the offenses, defendant was 21, N.V. was 12, and M.R. was 13.

In July 2004, when defendant had been mentoring N.V. for about three years, N.V. spent the night at defendants home. Defendant woke up N.V., turned him over, and pushed his penis against N.V.s rear end. Both were fully clothed. Defendant got up, went into the bathroom, then returned to the living room and fell asleep.

During a second incident that same month, defendant again awakened N.V., rolled him over onto his stomach, got on top of him, and pushed his pelvis into N.V.s buttocks. Both were clothed, and defendant did not touch N.V.s genitals. N.V. stated defendant had done this on one other previous occasion, approximately two years earlier.

M.R. is N.V.s brother. M.R. spent the night at defendants house on numerous occasions. Twice in July 2004 defendant had M.R. sit on top of his private parts and then lie down on him. Defendant then lifted his privates up and down. Both were fully clothed. Defendant stated he had M.R. get on top of him and hump him seven times over the year. In a later interview, defendant told a probation officer he only molested M.R. once and N.V. twice.

Defendant entered a guilty plea on both counts. The court appointed a doctor to prepare a section 288.1 report.

The trial court heard testimony from Paul Wuehler, Ph.D., appointed to examine defendant. Dr. Wuehler concluded defendant was not a pedophile or a sexual predator.

Dr. Wuehlers report reached four main conclusions. First, Dr. Wuehler found defendant was not a pedophile or a sexual predator. Defendant did not appear to be a danger to the community as a result of a sexual perversion. However, Dr. Wuehler noted defendant molested two separate victims. While defendant did not appear motivated by predatory or pedophiliac impulses, his self-control was weak and in need of strengthening.

Second, Dr. Wuehler found defendant in need of psychological treatment, particularly group sex offender counseling. Prior to group counseling, individual counseling sessions focusing on improving sexual knowledge would be beneficial. Defendants sexual knowledge was relatively immature for a 22-year-old male. Defendants immaturity, combined with his position of trust, were major causes of the offenses. Appropriate local treatment was available. Defendant was remorseful for his acts and wished to understand the underlying basis of his offenses, change his behavior, and become able to live an appropriate lifestyle.

Third, Dr. Wuehler determined defendant should not be allowed contact with the victims. While defendant did not present a threat of physical harm to the victims, the no-contact recommendation was a matter of emotional security for the victims. In addition, the prohibition against being in the presence of any underage child should be strongly implemented.

Finally, since Dr. Wuehler did not interview the victims, he could not render any opinion regarding the best interest of the victims as to whether or not defendant received probation.

The report concluded: This is a 22 year old Black male examined pursuant to PC Section 288.1. He was not found to be a pedophile nor a sexual predator. He was found to need sex offender treatment for his offenses and the problem that allowed them. He appeared to be amenable to treatment. He appeared to be remorseful for his offenses and legitimately concerned about the effect his offenses had upon the victims.

The prosecution and defense submitted sentencing statements. The prosecution noted there were actually four victims known to law enforcement. The prosecution also noted the victims all lacked father figures.

At the sentencing hearing, Dr. Wuehler testified concerning his qualifications. He stated he had prepared more than 200 section 288.1 reports and qualified as an expert in several counties. Dr. Wuehler explained the conclusions reached in his report. He interviewed defendant and reviewed approximately 50 pages of police reports.

In Dr. Wuehlers opinion, defendant was not a danger to the community. However, Dr. Wuehler believed defendant was a child molester, and without treatment he could offend again. He did not believe defendant was a pedophile, based on the diagnostic criteria listed in the DSM-IV-TR (Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000, text revision)), nor did he believe defendant was a sexual predator.

Dr. Wuehler observed that all of defendants conduct occurred when the participants were clothed, and his conduct did not escalate in severity. According to Dr. Wuehler, defendant did not appear to have obtained his church mentoring position in order to have access to children.

In assessing defendant, Dr. Wuehler employed two diagnostic instruments: the Sexual Violence Risk test (SVR-20) and the Static 99 test, used to evaluate sexually violent predators. Under the SVR-20 analysis, Dr. Wuehler found defendant registered in the low range. Defendants score on the Static 99 was four, placing him in the medium to high range of risk.

Dr. Wuehler believed the Static 99 score was artificially inflated because of defendants youth and relationship status. Defendant was neither married, nor had he lived with a lover for two years. Dr. Wuehler explained defendants relationship status stemmed from his own value system.

Dr. Wuehler later learned there were four victims, increasing his concern that defendant receive proper treatment. Since defendant expressed genuine remorse and regret, Dr. Wuehler believed he was amenable to treatment. Dr. Wuehler was not particularly concerned that there were more acts of molestation than those admitted by defendant; it was more important that defendant admitted his behavior in general.

Defendant expressed a willingness to undergo treatment, and since sexual offender programs were available, Dr. Wuehler believed defendant would succeed in treatment. Defendants religious beliefs increased his chances for successful treatment. Dr. Wuehler concluded defendant was a good candidate for probation.

On cross-examination, Dr. Wuehler acknowledged that if one strictly follows the current DSM-IV-TR criteria for pedophilia, defendant qualifies as a pedophile. In Dr. Wuehlers opinion, defendant was not a predator, even if he had molested four boys over the course of two or three years. However, Dr. Wuehler testified defendant should not be with children and posed a risk of reoffense.

The trial court, per Judge Evans, rejected Dr. Wuehlers report. Finding the doctors report flawed and unsupportable, Judge Evans further opined: . . . I happen to be somewhat familiar with [the DSM-IV-TR]. And I would suggest to Dr. Wuehler that he might consider the criteria for an antisocial personality disorder and also the fact that theres no treatment for an antisocial personality disorder. The court also stated it did not believe there was an effective therapy program in the area. It denied probation and sentenced defendant to prison.

On appeal from his first sentencing, defendant claimed the trial court abused its discretion in denying his request for probation by erroneously rejecting in toto Dr. Wuehlers report and discounting the availability of treatment programs. We agreed, finding the courts substitution of its own opinion as to defendants mental state problematic. The court provided no information as to how it reached this diagnosis; the court simply announced Dr. Wuehler should have pursued an antisocial personality disorder diagnosis and stated the disorder was untreatable. The trial court also concluded, without explanation, that no effective local sex offender treatment existed, notwithstanding Dr. Wuehlers testimony to the contrary. We concluded the trial courts substitution of its own opinions as to diagnosis and treatment, without any foundation or explanation, deprived defendant of due process, and in light of its imposition of the upper term on a young defendant with no prior record, the trial courts ipse dixit finding that no effective local sex offender treatment existed could not be considered harmless.

Current Proceedings -- Case No. C054047

A supplemental probation report was prepared prior to resentencing. The report noted defendant has been a model inmate with no disciplinary record and takes advantage of the services offered to him, but there are no treatment programs for incarcerated sex offenders. Defendant was interviewed: he expressed remorse, asked for probation, and asked to participate during probation in a sexual offender program.

At resentencing, defendant waived his right to be resentenced by Judge Evans. Judge Curry stated he had read a number of relevant documents, including the supplemental probation report, the original probation report, Dr. Wuehlers report, the Peoples sentencing statement and motion to aggravate, the defense statement in mitigation, this courts opinion in Roberts I, and the original sentencing transcript.

Like the previous trial court, Judge Curry also expressly rejected Dr. Wuehlers findings that defendant is neither a pedophile nor a predator. Specifically, the court rejected the doctors opinion that defendant is not a pedophile based on the evidence that [Dr. Wuehler] said he considered and the other evidence that Ive read in this case. The court also rejected Dr. Wuehlers opinion that defendant is not a predator. . . . I think that the evidence I have strongly supports a reason to believe that [defendant], in fact, got himself involved in the program he was involved in because it would, in fact, give him access to young males of the age that these victims were. Accordingly, the court denied probation.

Although the court identified two mitigating factors -- that defendant had absolutely zero record prior to this and that he admitted culpability early on -- it found the following aggravating factors to justify imposing the upper term on count I: the victims were vulnerable because they were at-risk youth from fatherless homes, defendant attempted during a pretext phone call to dissuade one victim from testifying, the crimes involved planning, and defendant took advantage of a position of trust to commit the crimes. The court further imposed a consecutive two-year term on count II because the crimes were committed at different times and separate places, not so closely in time as to indicate a single period of aberrant behavior. They were committed against separate victims, were predominantly independent of one another.

DISCUSSION

I

Defendant claims that the sentencing courts decision to deny probation was an abuse of discretion. We disagree.

The grant or denial of probation is within the trial courts discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) Judicial discretion is not a precise term. (See People v. Giminez (1975) 14 Cal.3d 68, 72.) The term implies absence of arbitrary determination, capricious disposition or whimsical thinking. (In re Cortez (1971) 6 Cal.3d 78, 85, overruled in part on other grounds in People v. Fuhrman (1997) 16 Cal.4th 930, 946, fn. 10.) There is no requirement that the court address the factors advanced by defendant in his request for probation or to state reasons for minimizing them. (People v. Simon (1983) 144 Cal.App.3d 761, 766-767.) Unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the mitigating circumstances enumerated in the sentencing rules. (Cal. Rules of Court, rule 4.409; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836.) A sentencing court is not even required to discuss the factors it has rejected. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317.)

Defendant first contends the court erred in failing to revisit the issue of whether sex offender treatment was available. Indeed, the issue was not raised at all during the instant sentencing proceedings. The supplemental probation report, however, confirmed that there is no regular sex offender treatment program where defendant is currently incarcerated, although sometimes counselors will gather sex offenders for treatment. The report likewise noted that defendant was requesting a grant of probation to participate in sex offender counseling, which was not provided in prison, and a regular sex offender treatment program would not be available to him until he was paroled. The judge signed the probation report, indicating that he had read it. Thus, although the parties did not raise or argue the issue at the resentencing hearing, it is reasonable to infer the court considered and rejected the possibility of granting defendant probation based on the analysis provided in the supplemental probation report. We cannot say the trial courts reliance on the report was an abuse of discretion.

Defendant next asserts that, by rejecting Dr. Wuehlers opinion that he is not a pedophile or predator, the court on resentencing engaged in virtually identical conduct to that which we criticized in our opinion in Roberts I. He is mistaken. In Roberts I, our chief concern was not with the courts rejection of the doctors opinion, a prerogative enjoyed by the ultimate finder of fact. Rather, our concern was with the trial courts substitution of that opinion with its own unsubstantiated opinion by identifying a mental condition neither discussed nor diagnosed by the doctor (i.e., antisocial personality disorder); reaching a conclusion based on the courts own limited familiarity with the DSM-IV-TR; diagnosing defendant as suffering from that condition; and opining that the disorder it had diagnosed was untreatable.

Inventing a new, utterly unsupported diagnosis is not the same as declining to accept the conclusion proferred by Dr. Wuehler in his report. The court is never obliged to accept an experts conclusion. Indeed, the fact finder may reject even a unanimity of expert opinion. . . . The chief value of an experts testimony . . . rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion. [Citation.] (In re Scott (2003) 29 Cal.4th 783, 823, quoting People v. Samuel (1981) 29 Cl.3d 489, 498.) Although experts may testify about their opinions, the fact finder decides what weight to give those opinions. (In re Scott, at p. 823.)

Here, Judge Curry specifically rejected the conclusion contained in Dr. Wuehlers report that defendant is not a pedophile, based on evidence Dr. Wuehler purportedly considered and other evidence the court indicated it had read. That conclusion did not represent an arbitrary determination, capricious disposition or whimsical thinking. (In re Cortez, supra, 6 Cal.3d at p. 85, quoting People v. Surplice (1962) 203 Cal.App.2d 784, 791.) Under cross-examination in the first sentencing proceeding, Dr. Wuehler himself admitted that a strict application of the current DSM-IV-TR criteria for pedophilia would lead one to conclude that defendant is a pedophile.

Nor did the court abuse its discretion by concluding, contrary to Dr. Wuehler, that the facts justified characterizing defendant as a predator. The sentencing statement prepared by the prosecution for the first sentencing proceeding and reviewed by the court prior to resentencing indicated that defendant had molested three victims, and attempted to molest a fourth, over a period of about two years. All were at-risk fatherless boys, at least three of whom were being mentored by defendant through the church program. He molested them in his home, at night, after isolating them from their families. He also sought interaction with young boys in other contexts: at the time his actions were discovered, he had arranged to begin working a job at a group home in Davis.

This is indeed a sad and troubling case. A young man with an unblemished record admitted to sex crimes involving young boys he mentored. As defense counsel passionately argued and we see regularly in the cases before us, his conduct, while reprehensible, was less egregious than many section 288 offenses. Nevertheless, the trial court, not the Court of Appeal, retains the discretion to assess a defendant and his crimes. Here the court exercised that discretion and determined defendant did not overcome the presumption that probation should be denied based on the nature of the offenses. There is nothing in this record to suggest the court abused its discretion in arriving at that finding. Two judges and two probation officers rejected Dr. Wuehlers favorable report, finding that defendant presents an unacceptable risk to the community because of his repeated sexual deviancy over a period of years with young boys who had been entrusted to him. We cannot say the latest sentence was an abuse of discretion.

II

Defendant also contends the trial court abused its discretion by imposing the upper term on count I, because he lacked any prior criminal history and had been a model prisoner since his conviction. In general, factors that may be used by the sentencing court to impose the upper term include those enumerated in rule 4.421 of the California Rules of Court. Rule 4.421(a) permits the court to consider -- as it did here -- the facts that the victims were particularly vulnerable because they were at-risk youth from fatherless homes (rule 4.421(a)(3)); defendant attempted during a pretext phone call to dissuade one victim from testifying (rule 4.421(a)(6));^[2]the crimes occurred in a manner involving planning (rule 4.421(a)(8)); and that defendant took advantage of a position of trust to commit the crimes (rule 4.421(a)(11)).

A single factor in aggravation will support imposition of an upper term. (People v. Castellano (1983) 140 Cal.App.3d 608, 615.) When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492.)

Defendant challenges as unsupported by the evidence the courts view that he obtained his job as a church mentor to have access to the boys, that he engaged in a plan to isolate them, or that he engaged in the misconduct when the boys were asleep. Even were we to agree with this characterization, which we do not, the record supports the courts findings in aggravation that the victims were particularly vulnerable because they were at-risk youth from fatherless homes, and defendant abused a position of trust when he molested them (or, as to one victim, attempted the crime). The sentencing courts determination here that the factors in aggravation outweighed the mitigating factors is not shown to be an abuse of discretion on this record.

In his reply brief, defendant objects to consideration of the uncharged misconduct against other victims. He acknowledges that the misconduct can be considered during the courts assessment of a defendants suitability for probation. (People v. Lamb (1999) 76 Cal.App.4th 664, 672-674.) As we concluded above, the court had an array of factors to justify imposition of the upper term, so to the extent, if any, that it took into account the uncharged misconduct, those factors supported the courts decision.

DISPOSITION

The judgment is affirmed.

RAYE , J.

In my opinion the sentence imposed in this case is too harsh and I would not have imposed it were I the trial judge. Nevertheless, the sentence does not constitute an abuse of discretion and I concur.

ROBIE , J.

I concur in Part I of the opinion, which concludes that the trial court did not abuse its discretion in denying probation.

I respectfully dissent from the analysis and conclusion in Part II, which concludes that the trial court did not abuse its discretion in imposing the upper term on count one. Given all circumstances of this case, imposition of the upper term on count one shocks my conscience. (See People v. Meeks (2004) 123 Cal.App.4th 695, 713; dis. opn. of Sims, J.) Moreover, as I shall explain in a moment, I think sentencing on count one is infected with prejudicial legal error.

The circumstances of this case which, in my view, make imposition of the upper term inappropriate include the following:

(1) The crimes consist, at their worst, of defendants dry humping two boys, ages 12 and 13. At all times, everyone had their clothes on. Nobody touched anybodys genitals. In my 25 years on the Court of Appeal, these events were among the least serious violations of Penal Code section 288, subdivision (a), that I have encountered.

(2) Defendant had no prior record.

(3) Defendant admitted his guilt at an early stage of the proceeding and was remorseful.

(4) Between the first and second sentencing, defendant had been a model prisoner.

(5) Although the proposed opinion mentions, at points, that defendant molested four boys, not two, the trial court did not rely on those asserted facts either to deny probation or to impose the upper term. To do so would have raised serious due process problems as defendant argues in his reply brief.

(6) The only expert opinion considered by the trial court (by a psychologist appointed by the court, not retained by the defense) concluded: This is a 22 year old Black male examined pursuant to PC Section 288.1. He was not found to be a pedophile nor a sexual predator. He was found to need sex offender treatment for his offenses and the problem that allowed them. He appeared to be amenable to treatment. He appeared to be remorseful for his offenses and legitimately concerned about the effect his offenses had upon the victims.

Considering all these circumstances and comparing this case with other molest cases that have come through this court, I find imposition of the upper term shocking.

Here is where I see legal error:

Defendant was resentenced (the subject of the present appeal) on July 24, 2006. At the time, Penal Code section 1170, subdivision (b), provided in pertinent part, When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Stats. 2004, ch. 747, 1.)

When defendant was sentenced in 2006, rule 4.420(b) of the California Rules of Court provided in pertinent part, Selection of the upper term is justified only if, after a consideration of all of the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation. (Further references to rules are to the California Rules of Court.)

In the present case, the trial court found only two circumstances in mitigation: that defendant has absolutely zero record prior to this and that he admitted guilt at an early stage of the proceedings.

In my view, the trial court failed to acknowledge two crucial mitigating circumstances that would have changed the sentencing calculation. In this regard, [t]he circumstances in mitigation enumerated in rule 423 of the California Rules of Court are simply illustrative [citation]; a broad scope of information may be considered [citation]. Such circumstances include every factor having a legitimate bearing on the matter [citation], and the court should consider all mitigating circumstances in imposing sentence [citation]. (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274.)

First, the trial court erroneously failed to find any circumstances of the crime as a mitigating factor even though, at the time, rule 4.423(a) provided as pertinent: Circumstances in mitigation include: [] (a) Facts relating to the crime . . . .

In my view, it was prejudicial error for the trial court to fail to consider the most compelling mitigating circumstance operating in this case: the lack of seriousness of the section 288, subdivision (a), offense. This error is traceable to the Supplemental Probation Report, prepared for resentencing, that reported as follows:

Rule 4.423 - Circumstances in Mitigation:

(a) Facts relating to the crime:

None noted.

Of course, it is absurd to conclude that these fully-clothed molests, which involved no genital touching, do not constitute a significant circumstance in mitigation. (See, e.g. People v. Jackson (1987) 196 Cal.App.3d 380, 391 [small sales of heroin a factor in mitigation].) Both the probation report and the trial court erred in concluding to the contrary.

The second mitigating circumstance erroneously overlooked by the trial court was the Penal Code section 288.1 report of an independent expert concluding defendant was a good candidate for treatment, was remorseful, and should be granted probation. While it may be permissible for the trial court to disagree with the reports conclusion that defendant was not a pedophile, there is no basis in the record for the trial court to jettison this independent expert report in its entirety and to refuse to consider it as a mitigating circumstance.

When these additional mitigating circumstances are factored into the sentencing calculation, there is no basis in the record for concluding that the circumstances in aggravation outweigh the circumstances in mitigation as required by former rule 4.420(b) in order to impose the upper term.

I would vacate the upper term sentence on count one and remand to the trial court with directions to impose either the midterm or the lower term. I would affirm the judgment in all other respects.

SIMS , Acting P.J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Defendant contends there was no evidence he attempted to dissuade a witness, but the Peoples sentencing statement indicates defendant told one of the victims to lie to police.