Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB725976
Bamattre-Manoukian, J.
Defendant Gerald Albert Carter pleaded no contest to three felony counts involving victim Jane Doe, a child under the age of 14, including continuous sexual abuse of a child -- resident child molesting (Pen. Code, § 288.5, subd. (a); count 1); lewd or lascivious act on a child by force, violence, duress, menace and fear (§ 288, subd. (b)(1); count 2); and lewd or lascivious act on a child (§ 288, subd. (a); count 3). He was sentenced to the middle term of 12 years on count 1 and consecutive terms of one-third the middle term (two years) on counts 2 and 3, for a total term of 16 years.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that the trial court abused its discretion in imposing the middle term of 12 years on count 1, because the circumstances in mitigation outweighed the circumstances in aggravation and therefore the court should have imposed the lower term of six years. For the reasons stated below, we conclude that the trial court did not abuse its discretion and we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Our summary of the facts is taken from the probation report and the documents attached to the probation report because defendant pleaded no contest prior to the preliminary hearing. Defendant was born in 1952, has been married for over 30 years, and has two teenaged sons. Defendant’s wife supports the family as a business executive. Prior to his arrest, defendant was a “ ‘stay at home dad’ ” who home schooled their children.
Defendant met Jane Doe’s mother through a home schooling support group. They became close friends and defendant developed a strong interest in Jane when she was eight or nine years old. Defendant would often invite Jane to his home, buy her gifts and take her out to eat. During the two or three years before his arrest on March 14, 2007, it was common for Jane to spend one or two nights at defendant’s home every week.
In early 2007, Jane’s mother noticed that Jane, now 11 years old, was happier when she was in her own home than when she was with defendant. Among other things, Jane was crying every time her father picked her up from defendant’s house. Jane also said that defendant made her feel bad. On March 12, 2007, Jane told her mother that when she spent the night at defendant’s home, he would “sometimes tickle her vagina, squeeze her breasts, and kis[s] her on the mouth.” Jane’s mother reported the sexual abuse to the local police department on the same day.
During an interview with a police officer, Jane stated that defendant began to sexually molest her when she was 10 years old. Every time she spent the night at defendant’s home, he touched her vagina, squeezed her breast, and kissed her on the lips. Defendant “touched her in this manner approximately 65 or 70 times.” On ten occasions, defendant also had her touch his penis, and he put his penis in her vagina once. Additionally, when Jane took a shower, defendant would help her take her clothing off and watch her shower. At times he got in the shower with her.
Jane subsequently spoke with defendant during a pretext telephone call. When she confronted him about “putting his mouth on her breasts and showering with her,” defendant said he was sorry and asked her not to tell because he could go to jail and it would destroy his family.
During a police interview, defendant stated that Jane was like a daughter to him and he loved her, although “it may have gotten out of hand sometimes.” Defendant admitted that he had touched Jane’s vagina several times when discussing the changes in her body and he also had her touch him in an effort to arouse himself. He did not deny Jane’s statement that he would touch her or she would touch him every time she spent the night at his house.
In a second police interview, defendant explained that Jane was “like a companion to him and they would ‘hang out’ together, going bowling and going shopping.” However, he acknowledged that he had become “confused . . . as to the nature of their relationship and acted inappropriately” with Jane Doe. Defendant admitted his guilt and expressed his regret for the pain he had caused the victim and her family.
B. Procedural History
The complaint filed on March 16, 2007, charged defendant with three felony counts involving victim Jane Doe, a child under the age of 14, including continuous sexual abuse of a child--resident child molesting between February 28, 2003 and February 27, 2004 (§ 288.5, subd. (a); count 1); lewd or lascivious act on a child by force, violence, duress, menace and fear between February 28, 2004 and February 27, 2005 (§ 288, subd. (b)(1); count 2); and lewd or lascivious act on a child between February 28, 2005 and January 31, 2007 (§ 288, subd. (a); count 3). The complaint also alleged that defendant was not eligible for probation, pursuant to section 1203.066, subd. (a)(1). On June 12, 2007, defendant pleaded no contest to all three counts on the condition that he would serve no more than 19 years and no less than nine years in state prison.
Prior to the sentencing hearing, the probation officer submitted a report stating that two circumstances in aggravation and two circumstances in mitigation existed. The circumstances in aggravation included (1) the manner in which the crime was carried out indicated planning; and (2) the defendant took advantage of a position of trust or confidence to commit the offense. The circumstances in mitigation included (1) the defendant had no prior record of criminal conduct or an insignificant record; and (2) the defendant voluntarily acknowledged wrongdoing at an early stage of the proceedings. The probation officer recommended that defendant be sentenced to state prison for a total term of 16 years.
The documents attached to the probation report included two letters to the court from defendant in which he discussed his background (including the emotional impact of his father’s death), his family life, his relationship with Jane Doe and her family, and his remorse for the “liberties” he had taken with Jane, whom he described as his “buddy,” “companion,” and “pal.” Defendant also expressed remorse for the impact of his offenses on his family and Jane’s family. Jane and her family members wrote to the court requesting that defendant serve prison time, while defendant’s friends and family submitted letters attesting to defendant’s good character.
In his statement in mitigation, defendant asserted that he was an atypical offender and numerous circumstances in mitigation existed, including (1) the crime was committed because of the unusual circumstance of defendant’s attraction to one specific young girl, Jane Doe; (2) defendant’s criminal conduct is partially excusable due to his diagnosed psychological conditions, which significantly reduced his culpability; (3) defendant did not mean to harm Jane Doe; (4) defendant did not consider the legal consequences of his inappropriate behavior with Jane Doe, which resulted from a loss of control; (5) defendant voluntarily admitted wrongdoing at an early stage of the criminal process; (6) defendant has no interest in young persons other than Jane Doe; (7) defendant is ready to make restitution to Jane Doe; (8) a lengthy incarceration will have a detrimental effect on defendant’s family; (9) defendant’s extraordinary cooperation with the police and courts should be recognized; (10) defendant has shown extraordinary remorse; (11) the charges overstate the criminality, since defendant’s conduct was primarily “petting and fondling;” (12) defendant poses no danger to society because his conduct was directed towards a single individual; (13) defendant does not “fit the profile of a child molester;” (14) defendant’s age of 55 means he is likely to die while incarcerated; and (15) defendant suffers from numerous medical conditions. Finally, defendant urged the court to consider the combination of all of the factors in mitigation.
In support of his statement in mitigation, defendant submitted the May 9, 2007 report of a clinical psychologist, John C. Brady II, Ph.D. Dr. Brady performed a comprehensive psychodiagnostic assessment of defendant at defendant’s request. After testing defendant and interviewing him and his wife, Dr. Brady made two diagnoses, “dysthymic disorder,” and “paraphilia, not otherwise specified.” Dr. Brady also concluded that defendant did not meet the criteria for a pedophile or a sexual predator and was instead “more of an atypical offender where psychological treatment can change patterns of inappropriate sexual object choice.” Dr. Brady explained that “[defendant’s] offense is viewed as a product of his over-identification with the victim which progressively evolved into actions that [defendant] regrets and for which he demonstrates sincere remorse. [Defendant] is viewed, based on the psychological tests, as a one-time offender who should represent a minimal future threat if he is provided with adequate counseling.”
At the sentencing hearing held on October 25, 2007, the trial court listened to statements by defendant and Jane Doe’s mother. The trial court also indicated that the court had read and considered the probation report, defendant’s letters to the court, the character reference letters, Dr. Brady’s report, and defendant’s statement in mitigation. The trial court reviewed the factors in aggravation and in mitigation, follows: “ I looked at and weighed the factors in aggravation and mitigation, and I believe I’ve looked at them all. In aggravation I considered that the victim is particularly vulnerable; that [defendant] did occupy a position of leadership and dominance over her, and the activity did take planning because it went on for so long; that you took advantage also of a position of trust. That victim had to look forward to this for least three times a week for a period of three and-a-half to four years, and every week she had to expect that she would endure this. [¶] I considered the factors in mitigation. That you have no prior criminal history except for the two traffic matters that you mentioned; that you voluntarily acknowledged wrongdoing prior to the arrest, and at an early stage of the criminal proceedings, knowing that you faced such a large amount of time in custody. I do believe . . . that you are truly remorseful, and I do understand that you have mental health issues.”
During argument, defense counsel urged imposition of the mitigated sentence of six years on count 1. However, the trial court imposed a total term of 16 years as recommended by the probation department, which included the middle term of 12 years on count 1 (continuous sexual abuse of a child under the age of 14--resident child molesting (§ 288.5, subd. (a)), and consecutive sentences of one-third the middle term (two years) on count 2 (lewd or lascivious act on a child under the age of 14 by force, violence, duress, menace and fear (§ 288, subd. (b)(1)) and count 3 (lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a)). The trial court selected the middle term for count 1 because the court found that the factors in aggravation and in mitigation “sort of balance each other out . . . .” The court also noted that defendant’s criminal conduct took place “on so many different days and for so many years. There’s just no way I can say this occurred in a single period of aberrant behavior.”
Defendant filed a timely notice of appeal on October 25, 2007. The notice of appeal states that an appeal from a judgment on a no contest plea on the ground that the trial court committed sentencing error is authorized by California Rules of Court, rule 8.304(b)(4)(B).
California Rules of Court, rule 8.304(b) provides, “(1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere . . ., the defendant must file in that superior court with the notice of appeal required by (a)--the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [¶] . . . [¶] (b)(4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on: [¶] . . . [¶] (B) Grounds that arose after entry of the plea and do not affect the plea’s validity.”
III. DISCUSSION
On appeal, defendant contends that the trial court abused its discretion in sentencing him to the middle term of 12 years on count 1 because the court failed to consider all of the numerous mitigating factors presented by defendant, failed to recognize that the mitigating factors “substantially outweighed” the factors in aggravation, and failed to impose the lower term of six year on count 1, thereby violating defendant’s due process rights. Defendant emphasizes that the evidence shows that he is not a pedophile; the offenses were committed under unusual circumstances that are not likely to recur and while he was depressed after the death of his father; there was no physical harm to the victim or threat of violence; and he is 55 years old and suffers from a number of medical problems.
The People assert that defendant failed to object to the sentence and therefore he has forfeited his claim of sentencing error. Additionally, the People argue that the sentence was well within the trial court’s discretion and the record reflects that the trial court did consider all of the factors in mitigation.
Our analysis of defendant’s claim of sentencing error is guided by the applicable standard of review. The California Supreme Court has instructed, “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Our Supreme Court has further described judicial discretion in the context of sentencing, as follows: “[T]he term judicial discretion ‘implies absence of arbitrary determination, capricious disposition or whimsical thinking.’ [Citation.] Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
In the present case, defendant argues that the trial court abused its discretion by failing to select the lower term of six years on count 1 (continuous sexual abuse of a child under the age of 14--resident child molesting (§ 288.5, subd. (a)). Section 288.5, subdivision (a) provides, “Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.”
At the time of defendant’s offenses, section 1170, subdivision (b) provided that the middle term was presumed to be the appropriate term absent circumstances in aggravation or in mitigation: “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.” (former § 1170, subd. (b); People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583.) Selection of the lower term was further governed by California Rules of Court, former rule 4.420(b), which had provided, “Circumstances in aggravation and mitigation must be established by a preponderance of the evidence. Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation. The relevant facts are included in the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any further evidence introduced at the sentencing hearing. Selection of the lower term is justified only if, considering the same facts, the circumstances in mitigation outweigh the circumstances in aggravation.”
Section 1170, subdivision (b) was amended by urgency legislation, effective March 30, 2007 (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40)) to eliminate the statutory presumption regarding the middle term. Section 1170, subdivision (b) now provides in pertinent part that “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” While the California Supreme Court has stated that it is arguable that the amendments to section 1170, subdivision (b) should be applied to any sentencing proceeding conducted after the effective date of the amendments, the court has declined to decide the issue. (People v. Sandoval (2007) 41 Cal.4th 825, 845.) In light of the general rule that “[c]riminal statutes presumptively apply only prospectively” (id. at p. 845) we will apply the version of section 1170, subdivision (b) that was in effect at the time of defendant’s offenses.
As required by Senate Bill No. 40’s amendments to section 1170.3, the Judicial Council amended the court rules concerning the selection of the terms of imprisonment, including rules 4.420 through 4.452, as amended May 23, 2007. (People v. Sandoval, supra, 41 Cal.4th at pp. 846-847.) Unless otherwise noted, we refer to the California Rules of Court as the rules read prior to the May 23, 2007 amendments.
The applicable circumstances in aggravation and in mitigation are set forth in the California Rules of Court, rules 4.421 and 4.423. “Sentencing courts have wide discretion in weighing aggravating and mitigating factors. [Citation.]” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) Thus, where the trial court finds that the factors in mitigation and in aggravation are equal, the court may in its discretion select the middle term as the base term. (Id. at p. 1259; see also People v. Avalos, supra, 47 Cal.App.4th at pp. 1582-1583.)
Defendant’s chief argument is that the trial court improperly failed to find that the circumstances in mitigation, as described in his statement of mitigation, the probation report, defendant’s letters to the court, and Dr. Brady’s report, outweighed the circumstances in aggravation, and to impose lower term of six years on count 1. We are not convinced by defendant’s argument because, with regard to discretionary sentencing decisions, “[t]he reviewing court cannot substitute its reasons for those omitted or misapplied by the trial court, nor can it reweigh valid factors bearing on the decision below.” (People v. Scott (1994) 9 Cal.4th 331, 355.)
Here, the trial court weighed valid factors in mitigation, including defendant’s insignificant criminal history, his voluntary acknowledgement of wrongdoing prior to arrest and at an early stage of the criminal proceedings, his remorse, and his mental health issues. (Cal. Rules of Court, rule 4.423(b)(1), (2) & (3).) The trial court also weighed valid factors in aggravation, including the fact that the victim was particularly vulnerable, the manner in which defendant carried out the offenses indicated planning, and defendant took advantage of a position of trust to commit the offenses. (Cal. Rules of Court, rule 4.421(a)(3), (8), (11).) On this record, it is apparent that defendant cannot meet his burden to show that the trial court’s decision to impose the middle term on count 1 was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th at pp. 977-978.)
The decisions on which defendant relies do not convince us otherwise. Citing this court’s decision in People v. Fernandez (1990) 226 Cal.App.3d 669, defendant argues that the trial court in the present case improperly found that a circumstance in aggravation was the manner in which the defendant carried out the offenses, which indicated planning. In Fernandez, the defendant was sentenced to the aggravated term of eight years for one violation of section 288, subdivision (a), based on the trial court’s incorporation of the aggravating factors as stated in the probation report. This court stated, with regard to the aggravating factor of the “ ‘planning, sophistication or professionalism with which the crime was carried out, indicating premeditation’ (see [former] rule 421(a)(8)),” that “[w]e express no opinion about the applicability of this factor. However, if applicable here, it would also probably apply in every resident child molester case. For this reason further elaboration would be particularly helpful in understanding how and why the facts showing premeditation in this case made the offenses worse than they ordinarily would have been. [Citation.]” (People v. Fernandez, supra, 226 Cal.App.3d at p. 680.)
The version of section 288, subdivision (a) in effect during the time period relevant to the decision in People v. Fernandez, supra, 226 Cal.App.3d 669, read: “Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.”
The present case is distinguishable from Fernandez. Here, the trial court expressly found that defendant’s offenses “did take planning because it went on for so long . . . [the] victim had to look forward to this for least three times a week for a period of three and-a-half to four years . . . .” Moreover, the record reflects that defendant’s offenses were worse than ordinary because he had the opportunity to repeatedly molest Jane Doe in his home over a period of several years after making her his “buddy,” “companion,” and “pal,” and having her stay overnight at his house once or twice during every week.
The decision in People v. Young (1983) 146 Cal.App.3d 729 also does not aid defendant. In Young, the appellate court ruled that the trial court had improperly imposed the aggravated term for his assault conviction, in part because the trial court had erred in finding that the “ ‘extreme serious nature of the offense’ ” was an aggravating factor. (Id. at p. 734.) The appellate court determined that factors may not be used to aggravate unless they have the effect of making the offense distinctively worse than ordinary, and since all assaults with a deadly weapon are an extremely serious offense, that fact did not constitute a factor in aggravation. (Ibid.) In the present case, defendant asserts that it “is far from certain” that the aggravating factor of planning “fit that requirement” by making the offense of residential child molestation distinctively worse than ordinary.
Again, the present case is distinguishable. Defendant was convicted in count 1 of violating section 288.5, subdivision (a), which requires, at a minimum, that the defendant sexually abused the child in the home no fewer than three times in a three-month period. Here, in contrast, as a result of defendant’s planning his offenses were distinctively worse than ordinary because he was able to sexually abuse Jane Doe 65 or 70 times over a three and one-half to four-year period. We therefore determine on these facts that the trial court did not abuse its discretion in finding that the manner in which defendant committed the offenses indicated the aggravated factor of planning.
For these reasons, we conclude that the trial court did not abuse its discretion in imposing the middle term of 12 years on count 1 and sentencing defendant to a total term of 16 years. Having reached this conclusion, we need not address the issue of whether defendant forfeited his claim of sentencing error.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., PREMO, J.