P. v. Ignacio
Filed 12/27/12 P.
v. Ignacio CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
GELADIN FRONDA
IGNACIO,
Defendant and Appellant.
F063886
(Fresno Super. Ct. No. F11905178)
APPEAL
from a judgment of the Superior Court of
County. John F. Vogt,
Judge.
Stephen
M. Lathrop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On October 20, 2011, a Fresno County jury
found appellant Geladin Fronda Ignacio guilty of two counts of performing a
lewd act upon a child under age 14 (Pen. Code,
probation and sentenced him to a total term of eight years in state
prison. The court imposed the middle
term of six years on the first count and a consecutive term of two years
(one-third of the middle term) on the second count. The court imposed various fines, fees, and
penalties, including a $40 court security fee (§ 1465.8), and awarded 294 days
of custody credits. On the same date,
appellant filed a timely notice of appeal. We will modify the monetary amount of the
court security fee and affirm in all other respects.
In 2010, appellant’s wife left him
alone at their family apartment with the couple’s daughters, ages three and
four, and the wife’s 13-year-old daughter, Jane Doe. While Jane was watching a movie with a
friend, appellant called Jane into his bedroom.
He told the friend he needed to speak with Jane about getting her a cell
phone. Once Jane entered the bedroom,
appellant removed her pants and undergarments and touched her vagina with his
hand. After appellant finished the
touching, Jane went to her bedroom, cried, and told her friend what occurred.
Jane’s mother returned a short time
after the touching occurred, and Jane advised her of the conduct. Jane’s mother told her, “ ‘Maybe you are
just mistaken.’ †When Jane’s
mother confronted appellant with the accusation, appellant admitted his conduct,
apologized to both mother and daughter, and said he did not do it
intentionally. Appellant also told her
that he was “tempted†and that “a devil went into his head or his mind.†Appellant also told his wife he would not do
it again. Appellant’s wife explained
that she and Jane accepted appellant’s apology “so we live like a family.†She also explained, “He said that he will not
do it again, and since then I never left my daughter alone. She’s always with me.†Jane did not disclose the 2010 incident to
police because she was afraid that her family would be broken up if she
reported the incident.
On February
27, 2011,
appellant’s wife left Jane in the apartment with her mother, sister, and
appellant. The mother and sister
departed a few minutes after appellant’s wife left the apartment. When appellant’s wife returned home,
appellant was present with their two daughters, but Jane was absent. When the wife asked appellant about Jane’s
location, he began banging his fists against his head and said the devil
tempted him. Appellant then told his
wife that Jane went out, but he did not know where she went. Appellant’s wife ultimately found Jane with
her friend, Mia, and Mia’s mother.
Jane testified that appellant had
entered her bedroom and lay down beside her.
He started kissing Jane and got on top of her as she reclined on her
back. Jane said appellant kissed her
mouth, neck, and face in a continuous fashion.
Jane said her sisters entered the room several times during the
incident, and appellant took them out of the room each time. Jane said the kissing went on for between 30
and 45 minutes, but she did not scream out.
She eventually ran outside, went to a recreation center in the apartment
complex, and called her friend, Mia.
Mia, Mia’s mother, and Mia’s grandmother were driving near Jane’s
apartment complex. They found Jane,
picked her up, and took her back to the apartment complex parking lot. Jane then saw her mother inside a car in the
parking lot. Jane told her mother what
had happened, and Jane’s mother spoke with Mia’s mother. When appellant came outside, Mia’s mother
started shouting and yelling at him.
After the confrontation, Jane and her mother
left the apartment complex, drove to a store parking lot, and spoke about the
situation. They decided to leave the
family apartment and stay with an aunt.
They returned to the family apartment to pick up the two younger
children. Mia and her mother had called
police in the interim, and Jane and her mother encountered officers when they
reached the family apartment. Jane spoke
to an officer about the touching by her stepfather.
On March 13, 2011, while in custody at the Fresno
County Jail, appellant and his wife spoke by telephone. They spoke in Tagalog, and their conversation
was recorded, interpreted, and transcribed.
The court admitted the transcript into evidence, copies of the
transcript were given to the jurors, and portions were read aloud. One pertinent exchange read as follows:
“[Appellant’s wife]: Was it a cop that told you?
“[Appellant]: Yes,
then you’re the one who say it, and they write it down. (pause).
They said, what they wrote on paper was stated by you. They said you were the one who said it.
“[Appellant’s wife]: Oh, I can’t remember anything.
“[Appellant]: Then
the child, she said that I touched her three times, touched her…
“[Appellant’s wife]: How did it become three?
“[Appellant]: I
don’t know. (pause)… You said in your last declaration that I just
kissed her, touched (not very clear)
her … did you change your declaration?
“[Appellant’s wife]: No! (Sounds
agitated).
“[Appellant]: O,
“[Appellant’s wife]: Wasn’t that what you have told me, what you have
recounted to me?... your own story to me?
That’s also what the child had complained to me!
“[Appellant]: Yes… It’s nothing.
I just thought you changed it.
“[Appellant]: Uhmmm…
“[Appellant]: According
to them you said that, you said there that I shouldn’t touch the child anymore
(not very clear). That’s what you said.
“[Appellant’s wife]: I can’t remember anything. [¶] … [¶]
“[Appellant]: The
charge that was filed against me was doubled.
“[Appellant’s wife]: Why?
“[Appellant]: Because
the child said three things. Three. But there were only two that they did… The child said a couple of things… Uhm.…
Then…
“[Appellant’s wife]: From what I know, there were two.
“[Appellant]: Yes,
two.
“[Appellant’s wife]: From what I know, there were two. But she has no other…
“[Appellant]: Whatever
the child said, that’s already it! It
cannot be changed. Then the defense
lawyer asked if the cop was there.â€
Randall
Robinson, Ph.D., a clinical
psychologist in private practice, testified: “[C]hildren tend to
[underreport] abuse, sexual abuse, to preserve the integrity of the family
because that’s home. They have nowhere
else to go. And even if they could go to
extended family, it’s generally not to live with extended family, and those
extended family are related to their parents, and … they have nowhere else to
go. [N]o young child will want to be a
foster child, so they [underreport].
They don’t report.â€
Shelly
Sweeton, a senior investigator with the district attorney’s office, testified
she spoke with appellant’s wife on April 27, 2011.
Sweeton and appellant’s wife discussed the February 27 incident, and
appellant’s wife said appellant had kissed Jane Doe. Appellant’s wife also told Sweeton about a
phone conversation she had with her husband.
From appellant’s statements during that phone conversation, the wife
understood that appellant did not want Jane Doe to come to court.
Defense Evidence
Appellant
did not present any documentary or
testimonial evidence but chose to rely on the state of the prosecution
evidence.
DISCUSSION
I.
THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN DENYING APPELLANT PROBATION.
Appellant contends the trial court abused its
discretion by denying probation based upon speculation that a report from a
mental health professional under section 288.1 would be unfavorable to the
defense.
A.
The Trial Court’s Statements at
the November 22, 2011 Sentencing Hearing
The trial court stated:
“In looking at the
particular circumstances of it, I think the thing focused on is the fact that Mr.
Ignacio, as a stepfather, and the victim in fact testified to the level of
acceptance that she and other siblings have of the defendant in the family
context. What it comes down to is that
the defendant did take advantage of a position of trust o[r] confidence to
commit these offenses. He was
responsible and accepted responsibility by marrying into the family. He became responsible to protect this child,
not abuse her. In a way, the whole thing
was unraveled in front of the jury, why it wasn’t reported to begin with, the
steps that were taken to essentially sweep the problem under the rug, and then
to have it arise again does in fact show a sophistication, if that can really
be the word, but more of a sense of planning and ultimate design to commit the
acts again.
“Now, throughout the
process and the evidence being produced, there was references to Mr. Ignacio
immediately understanding his wrongdoing and trying to square things up within
the family unit, and I suppose that’s a certain level of acknowledgement. And as Ms. Dana [defense counsel] pointed
out, he did turn himself into the police when he found out that there was a
warrant for him, but since then the defendant has continued to deny any
wrongdoing. The defendant has continued
to say that everything that he admits to doing was simply innocent, wrongly
interpreted by the victim, and totally misconstrued by a jury of twelve people
from the community, and I don’t accept that.
“I listened to the
child. I listened to the child’s
mother. I listened to other people who
corroborated the series of events. I
accept the expert testimony in the context of explaining how the reporting
process takes place, and I find absolutely no reason to disregard the verdicts
that were entered by the jury here, which brings me to probation eligibility.
“You’ve asked me to
consider probation. In order to do that
the mandates of Penal Code Section 1203.067 have to be met. That would include a favorable analysis and
evaluation pursuant to Penal Code Section 288.1. And,
quite frankly, where somebody is in total denial of wrongdoing, that just isn’t
going to happen. You aren’t going to get
a favorable report. That report
would address issues of how we are not going to have this happen again, how we
are going to avoid having somebody continue to be a danger to other members of
the community. Now, I’m not sure that
Mr. Ignacio would present a danger to other people, but I am convinced beyond a
reasonable doubt, as this jury was, that he would continue to present a danger
to the victim in this case and possibly other people within an immediate family
circle.
“So as I review the
provisions of Penal Code Section 1203.067, I have complied with the first order
required. I have a report and
recommendation of the Probation Department.
And, number two, we are conducting right now the hearing to determine
whether the defendant would pose a threat to the victim, and I’ve just
addressed that. Number three would be to
order a psychiatric evaluation under 288.1 and I’ve addressed that.
“I do not find that
the defendant at this time is eligible for a grant of probation.†(Italics added.)
Appellant’s Specific Contention
Appellant contends: “Here a grant of probation depended on the
existence of evidence that appellant’s release on probation would not pose a
threat to the victim. (Pen. Code, §
1203.067, subd. (a)(2) .…) [¶] The trial court’s discretionary decision to
deny probation was an abuse of discretion because it was based on conjecture
that a report from a mental health professional – a report that was never in
fact obtained – would yield unfavorable results. ‘ “Suspicion is not evidence; it merely
raises the possibility, and that is not a sufficient basis for an inference of
fact.†’ [Citations.]â€
C.
Applicable Law
The trial court enjoys broad discretion in
determining whether a defendant is suitable for probation. A decision denying probation will be reversed
only on a showing of abuse of discretion, i.e., that the denial was arbitrary
or capricious. California Rules of Court,
rule 4.414 provides the criteria a court is to consider when making the
decision whether to grant or deny probation.
Section 1203.067, which governs probation for specified felony
offenders, provides in relevant part:
“(a) Notwithstanding any other law, before
probation may be granted to any person convicted of a felony specified in
Section … 262 … who is eligible for probation, the court shall do all of the
following:
“(1) Order the defendant evaluated
pursuant to Section 1203.03, or similar evaluation by the county probation
department.
“(2) Conduct a hearing at the time
of sentencing to determine if probation of the defendant would pose a threat to
the victim. The victim shall be notified
of the hearing by the prosecuting attorney and given an opportunity to address
the court.
“(3) Order any
psychiatrist or psychologist appointed pursuant to Section 288.1 to include a
consideration of the threat to the victim and the defendant’s potential for
positive response to treatment in making his or her report to the court. Nothing in this section shall be construed to
require the court to order an examination of the victim.â€
Based on these statutory provisions and the
general rule concerning a sentencing court’s discretion to grant probation, a
court considering a probation request of a defendant convicted of a felony
listed in section 1203.067 must undertake the following analysis. First, the court reviews the criteria
affecting the grant or denial of probation set forth in California Rules of
Court, rule 4.414. Second, the court
weighs those criteria and makes a discretionary determination either to (1)
deny probation or (2) consider further the possibility of granting
probation. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1532 [a diagnostic
evaluation under § 1203.067 is not necessary where the court has decided to
deny probation based on the criteria in Cal. Rules of Court, rule 4.414].) Third, assuming the court decides to consider
further the possibility of probation, it orders the evaluation and conducts the
hearing required by section 1203.067, subdivision (a). Fourth, the court considers the results of
the evaluation and other evidence presented at the hearing, makes the required
determination, and exercises its discretion whether to grant probation. “A section 1203.067 diagnostic evaluation
becomes necessary only if, after weighing the criteria listed in [California
Rules of Court,] rule 4.414, a court is inclined to order probation rather than
prison time. When the court has no
intention of granting probation, and the record adequately supports such a
determination, there is no need for a section 1203.067 diagnostic
evaluation. [Citation.]†(People
v. Ramirez, supra, 143 Cal.App.4th at p. 1532.)
D.
Analysis
“Generally, on appeal, statements made by the
trial court in the course of trial as to its reasoning are not reviewable. [Citations.]
However, there are exceptions to this general rule. In criminal cases, an appellate court may
take into consideration the ‘ “judge’s statements as a whole†[when they]
disclose an incorrect rather than a correct concept of the relevant law,
embodied not merely in “secondary remarks†but in [the judge’s] basic
ruling .…’ [Citation.]†(People
v. Butcher (1986) 185 Cal.App.3d 929, 936, citing People v. Ortiz (1964) 61 Cal.2d 249, 253.)
In this case, the court cited numerous
reasons for the denial of probation, including: (1) the jury convicted
appellant of two separate incidents of lewd and lascivious conduct on a child
under age 14; (2) appellant took advantage of a position of trust and
confidence within his family unit to commit these offenses; (3) appellant’s
behavior reflected “a sense of planning and ultimate design to commit the acts
againâ€; (4) although appellant turned himself in to police in response to a
warrant, the court observed that “defendant has continued to say that
everything he admits to doing was simply innocent, wrongly interpreted by the
victim, and totally misconstrued by a jury of twelve people from the
communityâ€; and (5) although the court was unsure whether appellant would
present a danger to other people, the court was “convinced beyond a reasonable
doubt, as this jury was, that he would continue to present a danger to the
victim in this case and possibly other people within an immediate family
circle.â€
In addition to making the foregoing findings,
the court did say, “You’ve asked me to consider probation. In order to do that the mandates of Penal
Code Section 1203.067 have to be met.
That would include a favorable analysis and evaluation pursuant to Penal
Code Section 288.1. And, quite frankly,
where somebody is in total denial of wrongdoing, that just isn’t going to
happen. You aren’t going to get a
favorable report.†Appellant
characterizes these brief remarks as an abuse of discretion “because it was
based on conjecture that a report from a mental health professional – a report
that was never in fact obtained – would yield unfavorable results.…†Appellant’s assertion is not supported by the
entirety of the record. Although the
trial court did make the observation, the remarks were idle or secondary in
nature, at most. Moreover, read in
context, the remarks were supportive of the court’s denial of probation
because, as the court noted, a section 288.1 report by a psychologist “would
address issues of how we are not going to have this happen again, how we are
going to avoid having somebody continue to be a danger to other members of the
community.†The court went on to suggest
that an individual “in total denial of wrongdoing†was not a likely candidate
for a favorable report. In making these
comments, the court did not attempt to supplant the role and responsibility of
the mental health professional under section 288.1. Rather, the court simply implied, based on
his experience, that a defendant who failed to acknowledge wrongdoing was
unlikely to demonstrate “potential for positive response to treatment†as
required by section 1203.067, subdivision (a)(3).
Moreover, “[a] section 1203.067 diagnostic
evaluation becomes necessary only if, after weighing the criteria listed in
[California Rules of Court,] rule 4.414, a court is inclined to order probation
rather than prison time. When the court
has no intention of granting probation, and the record adequately supports such
a determination, there is no need for a section 1203.067 diagnostic
evaluation. [Citation.]†(People
v. Ramirez, supra, 143
Cal.App.4th at p. 1532.) Here, the court
weighed the criteria of California Rules of Court, rule 4.414 at length and
gave detailed reasons for declining to grant probation. No abuse of discretion occurred and reversal
is not required.
THE COURT SECURITY FEE IMPOSED AS
TO COUNT 1 MUST BE REDUCED TO $30.
Appellant contends and respondent concedes
the judgment of sentence should be modified to reflect a court security fee of
$30 under Penal Code section 1465.8.
Respondent explains: “Under Penal Code section 1465.8, subdivision
(a)(1), court security fees shall be imposed in the amount of $30 for
convictions on any date from July 1, 2011, until July 1, 2013. Because appellant’s conviction was on October
20, 2011, respondent agrees that this Court should reduce his security fee from
$40 to $30.â€
The judgment is affirmed. The superior court is directed to reduce the
fee imposed under section 1465.8 from $40 to $30, to amend the abstract of
judgment accordingly, and to transmit certified copies of the amended abstract
to all appropriate parties and entities.
Franson, J.
references are to the Penal Code unless otherwise stated.
