P. v. Waltz
Filed 2/21/13 P. v. Waltz CA1/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
ERNEST MITCHELL WALTZ,
Defendant and Appellant.
A135838
(Humboldt
County
Super. Ct.
No. CR1103879)
After
defendant admitted that he was in violation of his probation, the trial court
revoked probation and imposed an aggregate four-year
information in the probation report created bias on the part of the sentencing
court. He also contends that revocation
of probation was error, as was the imposition of multiple sentences for his two
convictions. We conclude that no bias on
the part of the court appears in the record, the revocation of probation was
not an abuse of discretion, and the imposition of multiple terms for the
separate criminal acts was proper. We
therefore affirm the judgment.
On November 28, 2011, defendant entered
a negotiated plea of guilty to committing a lewd act on a child under the age of
14 (Pen. Code, § 288, subd. (a)), as charged in count one, and arranging a
meeting with a minor for lewd purposes (Pen. Code, § 288.4, subd. (b)),
as charged in count two. Pursuant to the
open plea bargain, counts three and four, which alleged additional charges of
arranging a meeting with a minor for lewd purposes, were dismissed. The offenses were based on defendant’s
“relationship with a twelve (12) year old female, Jane Doe, via Facebook and
face-to-face meetings†with her, arranged on at least five occasions at a mall
or local park, and during which defendant hugged the victim, “gave her piggy
back rides,†touched “her buttocks,†and “kissed her on the mouth†on one
occasion.
In
accordance with the plea bargain, on December
30, 2011, the trial court suspended imposition of sentence and
placed defendant on probation for four years, upon the condition, among others,
that he serve a county jail term of 180 days.
Defendant objected to the imposition of a condition of probation that
prohibited his access to the Internet.
The probation report recommended the condition based on the fact that
defendant’s contact with the victim in the case, Jane Doe, was facilitated
through his use of the Facebook social networking site. Defense counsel suggested that the court
tailor the term to require defendant to provide his password to the probation
officer and limit his access to “those type of sites.†The court noted that the probation report and
the evaluation of clinical and forensic psychologist, Dr. Andrew Renouf,
strongly recommended a complete restriction on access to the Internet to avert
potential harm to the community. Limited
computer access was considered “not realistic†by the court, given the
inadequate monitoring resources of the probation department. Defendant reluctantly accepted the Internet
prohibition term of his probation.
A notice of
probation violation filed on February 24, 2012, alleged that defendant violated
his probation by: failing to register as a sex offender as ordered, and falsely
stating to the probation department that he had registered on January 9, 2012;
failing to notify the probation department of a change of residence address;
residing in the home of his sister and minor niece as proscribed by the terms
of his probation; communicating by Facebook, telephone messages and texting
with an investigator who posed as a 15-year-old female; and, actively using the
Internet and Facebook. A new complaint
was also filed against defendant that alleged his failure to register as a sex
offender (§ 290.015).
Again as
part of a negotiated disposition, on March
15, 2012, defendant agreed to plead guilty to a misdemeanor
conviction for failing to register in violation of section 290.015. He also admitted violations of his probation:
failure to register as required, accessing the Internet, and failure to comply
with his probation officer’s instructions to vacate his sister’s residence
occupied by minor children. The
prosecution agreed to dismiss the allegation that on February 24, 2012, defendant associated with a
female under the age of 18. The matter
was referred to the probation department for a report, and a sentencing hearing
was set for April 6, 2012.
Before the
sentencing hearing, defendant moved to strike inappropriate matter from the
probation report, specifically, the references to his communication with “an
investigator posing as a fifteen year old female named ‘Kelli.’ †Defendant pointed out that the prosecution
explicitly agreed to strike the allegations in the probation violation notice
“relating to this communication.â€
name="_ftnref2" title="">[2] At a hearing on the motion, the trial court
agreed with defendant that he did not admit the allegation of communication
with a minor female, and referred the matter back to the probation department
for correction and clarification of the report.
The court stated that the alleged “February 24th incident [was a]
significant part†of the analysis and recommendation in the probation report,
and merely striking the matter would not “work as well†as “re-referral†to the
probation department and a corrected report.
A
supplemental probation report filed on May
7, 2012, again erroneously stated that defendant admitted the
probation violations “as alleged†in the notice. The supplemental report also for a second time
included as a probation violation that on February 24, 2012, the Humboldt County District Attorney’s
Office reported “defendant communicated with Investigator Martin Perrone, who
posed as a 15 year old female named ‘Kelli.’ †A third iteration of the probation report,
also filed on May 7, 2012, deleted the reference to the probation violation for
communication with a minor female, and properly stated that defendant admitted
the allegations in the probation violation notice only “in part.â€
All
versions of the probation report reached the same conclusion: that defendant’s
demonstrated lack of suitability for community supervision, his continued
association with minor females, his denial and minimization of culpability, and
lack of adequate appreciation or level of cooperation with the restrictions of
probation, all render him an inappropriate candidate for further probation
supervision. Commitment to state prison
was recommended.
At the
sentencing hearing on May 7, 2012, the trial court mentioned that the second,
most recent supplemental probation report properly clarified defendant’s
admissions and “took out†the erroneous reference to communication with the
minor female “Kelli†that was “not admitted.â€
The court also considered the statement in mitigation submitted by the
defense. The court articulated the
probation violations as: failing to register and “lying to probation about
that; residing in his sister’s home where a minor lived, despite being advised
he couldn’t do that; and using the Internet, including Facebook.†The court also relied on Dr. Renouf’s
evaluation letter, which strongly suggested a prohibition “from unsupervised
contact with minors and access to the Internet,†to find that defendant intentionally
violated “critical conditions†of probation and was “likely unable to abide by
probation terms which are critical to the protection of society and,
particularly, to minor females.†Due to
defendant’s “complete denial,†lack of acceptance of responsibility or
expression of remorse, and “continuation†of inappropriate conduct, the court
considered defendant a “danger to the community and a poor risk for release on
probation.†The court revoked and
terminated defendant’s probation, and imposed the lower term of three years on
count one, along with a consecutive one-year term on count two.
I. The Errors in the Probation
Reports.
Defendant
argues that errors in the probation reports “were inflammatory and tainted the
trial court’s ability to impartially and objectively sentence†him. The focus of defendant’s claim is upon the
incorrect references in the two probation reports to his admission of an
allegation that he engaged in Internet and telephone contact with a police
investigator who posed as a 15-year-old female.
In response to defendant’s motion to strike the material in the
probation report and the court’s directive to the probation department to
correct and clarify the error, the final supplemental probation report
ultimately deleted the inaccurate information.
Still, defendant asserts that the ability of the sentencing judge “to
act impartially and to disregard the incorrect material was significantly
impaired.†He contends that the
sentencing judge, once confronted with evidence of the erroneous admission in
the probation report, was obliged to “recuse himself†and reassign the case to another judge,
due to the potential for bias and “substantial doubt†of the “capacity to be
impartial.†(Code Civ. Proc.,
§ 170.1, subd. (a)(6)(A)(i)–(iii).)
We first note that a “ ‘judge
may not properly try a case where he has formed partisan opinions from outside
sources, but a trial judge will normally and properly form opinions on the law,
the evidence and the witnesses, from the presentation of the case. These
opinions and expressions thereof may be critical or disparaging to one party’s
position, but they are reached after a hearing in the performance of the
judicial duty to decide the case, and do not constitute a ground for
disqualification.’ [Citation.]†(Haldane
v. Haldane (1965) 232 Cal.App.2d 393, 395.)
The defendant bears the burden to establish as a fact that a judge was
biased or prejudiced against him, and the record before us fails to indicate
the slightest hint of partiality exhibited by the sentencing judge against
defendant. (Estate of Buchman (1955) 132 Cal.App.2d 81, 104.)
Nothing in the rulings or conduct of
the sentencing judge in the present case create a reasonable doubt of his
ability to remain neutral in the case.
When the defense pointed out the mistaken reference in the probation
report to defendant’s admission, rather than merely strike the material the
judge directly ordered a “re-referral,†correction of the error by the
probation department, and submission of a new report. The judge was fully aware of the error, but
also of the need to rectify it and disregard the flaw in the probation report
before proceeding with sentencing. The
final supplemental probation report deleted the inaccurate information. The record further definitively shows that
the judge did not consider or rely on the report of defendant’s alleged but not
admitted contact with the “15 year old female named ‘Kelli’ †in reaching a
sentencing decision. Only the remaining
three admissions, along with the evaluation of Dr. Renouf, were cited by the court in
support of the ruling to revoke and terminate probation. Based on our review of the record we perceive
no reason to believe the sentencing judge was incapable of ignoring the
erroneous information. No bias or
prejudice has been established.
II. The Trial Court’s Decision to Revoke Probation.
Defendant also complains that the
trial court abused its discretion by imposing a state prison sentence rather
than reinstating probation. Defendant
maintains that “absent the improper and unproven allegations concerning decoy
‘Kelli,’ †his “technical†violations of probation “did not give rise to
substantial concerns over safety to the public.†He claims that revocation of his probation
was not justified, and he should be granted “an additional chance for full
compliance with his terms of probation.â€
“Penal Code section 1203.2,
subdivision (a) authorizes a trial court to revoke probation ‘if the
court, in its judgment, has reason to believe from the report of the probation
officer or otherwise that the person has violated any of the conditions of his
or her probation . . . .’ â€
(People v. Jackson (2005) 134
Cal.App.4th 929, 935; see also In re
Eddie M. (2003) 31 Cal.4th 480, 487,
503–504; In re Alex U. (2007) 158
Cal.App.4th 259, 265.) “ ‘As the
language of section 1203.2 would suggest, the determination whether to
. . . revoke probation is largely discretionary.’ [Citation.]
‘[T]he facts supporting revocation of probation may be proven by a
preponderance of the evidence.’
[Citation.] However, the evidence
must support a conclusion the probationer’s conduct constituted a willful
violation of the terms and conditions of probation.†(People
v. Galvan (2007) 155 Cal.App.4th 978, 981–982; see also
Cal.App.4th 1062, 1066.) “The role of
the trial court at a probation revocation hearing is not to determine whether
the probationer is guilty or innocent of a crime but whether he can be safely
allowed to remain in society.†(
332, 337; see also People v. Monette (1994)
25 Cal.App.4th 1572, 1575.)
“We review a probation revocation
decision pursuant to the substantial evidence standard of review [citation],
and great deference is accorded the trial court’s decision, bearing in mind
that ‘[p]robation is not a matter of right but an act of clemency, the granting
and revocation of which are entirely within the sound discretion of the trial court. [Citations.]’
[Citation] [¶] ‘The
discretion of the court to revoke probation is analogous to its power to grant
the probation, and the court’s discretion will not be disturbed in the absence
of a showing of abusive or arbitrary action.
[Citations.]’ [Citation.] ‘Many times circumstances not warranting a
conviction may fully justify a court in revoking probation granted on a prior
offense. [Citation.]’ [Citation.]
‘ “[O]nly in a very extreme case should an appellate court
interfere with the discretion of the trial court in the matter of denying or
revoking probation. . . .†’ [Citation.]
And the burden of demonstrating an abuse of the trial court’s discretion
rests squarely on the defendant.†(
766, 773.)
Defendant admitted that he willfully
violated his probation, and we find no abuse of discretion in the trial court’s
decision to revoke rather than reinstate probation. Defendant manifestly exhibited inability to
comply with the terms of his probation.
Within a few months of receiving his grant of probation, defendant
committed multiple violations of conditions that were directly related to his
past criminal conduct and aimed at deterring or discovering subsequent
Defendant’s violations were neither
technical nor trivial. He failed to
register as a sex offender until seven weeks after he was directed to do so by
his probation officer, which was both an additional criminal offense and a probation
violation. He resided in his sister’s
home with her minor daughter, a specific violation of probation which again was
reasonably related to his past crimes committed upon a minor. He also had regular contact with his
niece. He falsely told the probation
department that he completed his registration, and subsequently registered with
an address that did not match his sister’s residence, both of which
demonstrated his knowledge of the conditions and realization that he was in
violation. Despite directives not to do
so, defendant continued to use the Internet and Facebook, the very instruments
he employed to facilitate his prior crimes.
Dr. Renouf’s report noted the serious potential harm to the community if
defendant retained access to the Internet, and strongly suggested a prohibition
against it. Defendant’s violations
demonstrated his unwillingness to comply with probation, his lack of
suitability for community release, and the risk he posed to the safety of the
community. Revocation of his probation
was not an abuse of discretion.
III. The Imposition of Multiple Sentences.
Defendant’s final contention is that
the trial court erred by imposing a three-year sentence on count one for the
conviction of committing a lewd act on a child under the age of 14
(§ 288, subd. (a)), and a consecutive one-year sentence on count two for the
conviction for arranging
a meeting with a minor for lewd purposes (§ 288.4, subd. (b)). Defendant argues that the sentence on count
two violates the proscription against multiple punishment found in section
654. He maintains that the two offenses
were “indispensably linked as one course of conduct,†and had “no separate
objectives.†Therefore, he claims that
“section 654 prohibits separate punishments for the two offenses,†and we must
“order the consecutive one-year term stayed.â€
Defendant
relies on the established rule that the double jeopardy clause of the Fifth
Amendment of the
Constitution and section 654 forbid multiple punishment for the same
offense. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Wader (1993) 5 Cal.4th 610, 670.) Section 654 provides in pertinent part that
“[a]n act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one . . . .†(See also People
v. Kramer (2002) 29 Cal.4th 720, 722; People
v. Hall (2000) 83 Cal.App.4th 1084, 1088.)
The proscription against double punishment in section 654 is applicable
where the defendant’s course of conduct violated more than one statute but
nevertheless comprised a single act or indivisible transaction. (People
v. Perez (1979) 23 Cal.3d 545, 551; People
v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Williams (1992) 9 Cal.App.4th 1465, 1473.) “On the other hand, section 654 does not
apply when the evidence discloses that a defendant entertained multiple
criminal objectives independent of each other.
In that case, ‘the trial court may impose punishment for independent
violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of
conduct. [Citations.]
. . .’ [Citation.]†(In re
Jose P. (2003) 106 Cal.App.4th 458, 469.)
“[M]ultiple crimes that arise from a single course of criminal conduct
may be punished separately, notwithstanding section 654, if the acts
constituting the various crimes serve separate criminal objectives.†(People
v. Davey (2005) 133 Cal.App.4th 384, 390.)
“The
divisibility of a course of conduct depends upon the intent and objective of
the defendant. If all the offenses are
incidental to one objective, the defendant may be punished for any one of them,
but not for more than one. On the other
hand, if the evidence discloses that a defendant entertained multiple criminal
objectives which were independent of and not merely incidental to each other,
the trial court may impose punishment for independent violations committed in
pursuit of each objective even though the violations shared common acts or were
parts of an otherwise indivisible course of conduct. [Citations.]
The principal inquiry in each case is whether the defendant’s criminal
intent and objective were single or multiple.
Each case must be determined on its own facts.†(People
v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
“ ‘The
question of whether the acts of which defendant has been convicted constitute
an indivisible course of conduct is primarily a factual determination, made by
the trial court on the basis of its findings concerning the defendant’s intent
and objective in committing the acts.
This determination will not be reversed on appeal unless unsupported by
the evidence presented at trial.’
[Citation.]†(
1651, 1657; see also People v. Coleman
(1989) 48 Cal.3d 112, 162; People v.
Avalos, supra, 47 Cal.App.4th 1569, 1583; People v. Williams, supra, 9 Cal.App.4th 1465, 1473.) “We review the trial court’s findings ‘in a
light most favorable to the respondent and presume in support of the order the
existence of every fact the trier could reasonably deduce from the
evidence. [Citation.]’ [Citation.]â€
(People v. Green (1996) 50
Cal.App.4th 1076, 1085.)
The trial
court found that the two offenses, while “related,†were “separate and
distinct,†and we agree. At least two
separate acts were committed: arranging at least five separate meetings with
the minor; then, the commission of lewd acts once the meetings occurred. The acts were not concurrent. In fact, the time frame was lengthy and
protracted. A sequence of distinct
objectives may be attributed to defendant: convincing the minor to meet him,
arranging the meeting, and finally committing the lewd act after he effectuated
contact with the minor. No violation of
section 654 occurred.
Accordingly,
the judgment is affirmed.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Marchiano,
P. J.
__________________________________
Banke,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal
Code unless otherwise indicated.
name="_ftn2" title="">[2] Apparently, the inclusion of the dismissed allegation
in the probation report was due to an error in the court minutes of the
admissions hearing.
