NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Despite being charged with nine counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)),
Defendant contends the trial court abused its discretion in denying him probation because it relied on unsupported statements made by the prosecutor that led it to believe he had a high risk of recidivism when the evidence showed to the contrary. We disagree and affirm the judgment.
Kim Hesketh used to babysit two girls, A.S., now 16 years old, and her sister, M.S, now 18 years old. During that time, Hesketh would sometimes ask defendant to watch them while she ran errands. On one of these occasions during the summer of 2012, when defendant was 17 years old and M.S. was 12 or 13 years old, defendant was waiting for M.S. as she came out of the bathroom. He told M.S. to take her pants off but she told him no. Defendant then pulled her pants down to her knees and moved her to the bedroom. He forced her to sit on the bed and rubbed her vagina for 10 minutes with his hands despite her asking him many times to stop. Defendant also touched M.S.'s breasts under her clothes, put his tongue in her vagina, and grabbed her hand to try to make her touch his penis, but she could not remember if she did. After about 10 minutes, A.S. walked into the room on her way to the bathroom. Defendant told A.S. he was helping M.S. zip up her pants. M.S. pulled up her pants and went to the living room.
M.S. did not tell anyone for a while because defendant's sister was her best friend. A.S., however, later told her teacher about what she had seen. M.S. and A.S. were brought to the police station, where A.S. reported defendant had also had sexual encounters with her the year before, when she was eight years old.
When police contacted defendant to follow up on the report, he initially maintained he was helping M.S. with her zipper and denied touching M.S. or A.S. But when interviewed the next day at the police station, defendant admitted having lied the previous day and confessed to touching M.S.'s vagina and breasts on the day in question.
Defendant contends the trial court erred in denying him probation because it erroneously relied on the prosecutor's misstatement he was a "serial offender" with a "shockingly high" STATIC-99R score
At the outset of the sentencing hearing, the trial court indicated it had read defendant's sentencing memorandum, the probation report, and addenda to it including one containing a report under section 288.1 prepared by Dr. Laura Brodie. In his sentencing memorandum, defendant contended he had a low risk of recidivism and argued for a grant of probation. He cited Dr. Brodie's report that "95% of juvenile offenders who commit a sex offense will never offend again." Based on Dr. Brodie's report, he asserted he did "not have an antisocial personality, . . . has not been violent [nor] . . . had substantial abuse issues or supervision violations[, and] . . . can be managed in the community and . . . follow the rules of probation."
Despite these arguments, and before allowing the parties to argue, the trial court made it clear it would be denying probation and the only remaining issue to discuss was whether it should impose the middle or low term, as it would not impose the maximum term. In addition to arguing for the low term of three years, defense counsel made a last ditch effort toward the end of oral argument to obtain probation for the defendant. Before giving defense counsel "one more shot," the court stated, "I'm just concerned about an appropriate jail time to impress upon him the importance of not doing this. And I have no evidence one way or another of the sexual compulsion that can't be overcome. [¶] So I've got an individual. He's done some things wrong. Why is the People's analysis of six years incorrect?" Defense counsel responded, "Well, I think he'd do better with five years of structured classroom, which comes along with probation." The court cut short defense counsel's argument and made it clear it would not grant probation: "He's getting a state prison term sentence. . . . I'm not going [to discuss whether] the state may not provide all the resources that probation does. I've considered those options and it's not appropriate here." Accordingly, defense counsel went on to make a case for the low term.
We conclude defendant's sentencing memorandum and statements in oral argument fully apprised the trial court of his desire for probation, and corresponding "objection" to its denial, and was sufficient to preserve the issue for appeal. (People v. Downey (2000) 82 Cal.App.4th 899, 909, fn. 4 [error in refusing to reinstate probation preserved by argument in favor of reinstatement]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1030-1031 [two-day hearing in which the defendant fully apprised court of the basis for objection to upper term].)
We turn now to the merits of defendant's argument. The trial court has broad discretion in matters involving probation and sentencing, and the party challenging a decision to grant or deny probation bears the burden of establishing the court abused its discretion. (People v. Catalan (2014) 228 Cal.App.4th 173, 179.) "`In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order . . . is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.'" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311 (Weaver), disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 934-935.)
California Rules of Court, rule 4.414
A trial court is required to state its reasons for denying probation and imposing a prison sentence. (Rules 4.406(b)(2); 4.408(a).) Generally, a court satisfies this obligation when it explains why it favored imprisonment over probation. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157-1158.) On appeal, a court is only found to abuse its discretion if there is not sufficient or substantial evidence to support the court's application of the factors. (Weaver, supra, 149 Cal.App.4th at p. 1313.)
Defendant contends "the undisputed evidence in the record supports [his] request for probation. Nothing in the record indicates [he] posed a danger or a substantial risk to the community if released. In fact, the only medical opinion in the record indicates that [he] could abide by the rules of probation while in the community." But these are the same arguments made in his sentencing memorandum, which the trial court indicated it had considered. Nevertheless, the court found the interests of justice would not be served by granting probation. Although it recognized defendant had "no prior criminal history as a juvenile and that he's been incarcerated his entire short adult life," "[t]he victim in this case was an extremely vulnerable 12-year-old [child] who resisted his sexual advances. The defendant showed great sophistication and planning in waiting until the child was alone and in an empty bedroom, after using the restroom, to begin his conduct." The court believed defendant's actions caused the child emotional pain and did not consider "defendant's age of 17 at the time to be a factor of mitigation" because "[h]e was still five years older than" the victim. Taking into account these factors, which defendant fails to discuss, it cannot be said the court's denial of probation was arbitrary, capricious or exceeded the bounds of reason.
Defendant also argues the prosecutor's misstatements that his STATIC-99R score was "shockingly high" and was a "serial offender" misled the trial court to believe he posed a substantial risk to the community if granted probation. In People v. Eckley (2004) 123 Cal.App.4th 1072, 1081 (Eckley), the court denied the defendant probation and sentenced her to prison relying on sentencing documents containing material, factual misstatements that "exaggerated defendant's callousness." Indeed, "[i]n announcing its probation and sentencing decisions, the court emphasized defendant's callousness." (Ibid.) According to Eckley, this was error requiring the vacating of defendant's sentence: "Although not all the procedural safeguards required at trial also apply in a sentencing or probation hearing, such a hearing violates due process if it is fundamentally unfair. [Citation.] `Reliability of the information considered by the court is the key issue in determining fundamental fairness' in this context. [Citation.] A court's reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process." (Id. at p. 1080.) Eckley concluded the court's reliance on the inaccuracies denied defendant due process of law. Therefore, it vacated the defendant's sentence and the order denying probation, and remanded the matter for a new hearing. (Id. at p. 1081.)
Similarly, here, defendant argues the prosecutor wrongly described him at the sentencing hearing, as a "`serial offender' with a `shockingly high' STAT[IC]-99R score implying [he] posed a substantial risk of recidivism."
But that is not what the trial court said. The court was discussing its misgivings about tests purported to predict a defendant's risk of reoffending. "I have been underwhelmed by psychologists' and psychiatrists' ability to predict future conduct." "[T]hose tests are skewed based on age" with people getting "punished for being younger" and rewarded "for just getting older." For example, the court granted probation in another case to a defendant because everyone said he was too old and would not reoffend. "On the other hand, they've scored somebody high who has never had any problems." In context, the reference to scoring people "high" was a general observation about the tests, not an adaptation of the prosecutor's characterization.
Moreover, defendant has not shown the trial court relied on the prosecutor's statement to deny probation. Rather, the record shows these statements were made after the court had already stated its decision not to grant probation and during the parties' arguments regarding the prison term to be imposed on defendant — whether defendant should receive a three or six-year sentence. The court said it would consider defendant's STATIC-99R test results in connection with "trying to decide what's best for this individual . . . and yet let the victims also realize that coming forward meant something and that there were consequences to what happened. [¶] . . . So I'm just stuck on does three years or six years get us anything additional?" Thus, any misstatement of fact by the prosecutor during his argument in favor of the middle term of six years did not affect the court's decision to deny probation to defendant. "The mere presence of erroneous sentencing information in the record does not require reversal; such information becomes constitutionally significant only if the sentencing court relies upon it." (People v. Tang (1997) 54 Cal.App.4th 669, 678.)
Before concluding, although defendant does not contend the prosecutor committed misconduct, we remind the deputy district attorney that prosecutors "are held to an elevated standard of conduct." (People v. Hill (1998) 17 Cal.4th 800, 819.) The imposition of this higher standard is justified by their "unique function . . . in representing the interests, and in exercising the sovereign power, of the state." (Id. at p. 820.) A prosecutor may commit misconduct if he or she "`substantially misstate[s] the facts or go[es] beyond the record. Ultimately, the test for misconduct is whether the prosecutor has employed deceptive or reprehensible methods to persuade either the court or the jury. [Citation.]'" (People v. Gonzales (2011) 51 Cal.4th 894, 947.) Although the "serial offender" statement may be supported by the additional evidence and charges related to A.S. (see People v. Towne (2008) 44 Cal.4th 63, 86 [at sentencing, trial court may consider "conduct underlying a charge of which the defendant was acquitted"]), the representation defendant's STATIC-99R test score was "shockingly high" comes close to substantially misstating the facts to the court. So does claiming a score of six is the highest possible score in the risk category of high in the STATIC-99R test, when in fact the highest possible score is 12. (See fn. 6, ante.) The Attorney General maintains "the STATIC-99R test score of three is not as low as [defendant] suggests as the test operated on a scale ranging from negative three to positive twelve." While true, a score of three still predicted defendant's recidivism rate to be 7.9 percent, which cannot properly be characterized as "shockingly high."
Having said that, we conclude the prosecutor's actions were harmless. The statements that defendant was a "serial offender" with a "shockingly high" STATIC-99R score were made after the trial court had made its decision not to grant probation. And to the extent the court considered the STATIC-99R score received by defendant, it did so to help it determine whether to impose the low term of three years or the midterm of six years. Inasmuch as the court had already made it clear it would not grant probation, defendant received the next best thing — the low term of three years in prison.
The judgment is affirmed.
O'LEARY, P. J. and IKOLA, J., concurs.