Opinion
E065501
08-08-2017
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN ANDRINO, Defendant and Appellant.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Adrianne Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF10002531) OPINION APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Adrianne Denault, Deputy Attorneys General, for Plaintiff and Respondent.
This is the third appeal in this case. In 2011, defendant and appellant Adrian Andrino was convicted of unlawful oral copulation with a person under the age of 18 (Pen. Code, § 288a, subd. (b)(1)) and lewd act upon a child under the age of 14 without force (§ 288, subd. (a)). The trial judge sentenced him to state prison for a total term of six years eight months. This court reversed and remanded the matter for resentencing on the ground that the trial judge erred in finding him ineligible for probation. (People v. Andrino (Sept. 17, 2013, E055371) [nonpub. opn.].) On remand, another judge denied probation and sentenced defendant to state prison for the same term initially imposed. This court again reversed and remanded the matter for resentencing on the grounds that the judge's sentencing choices and reasons were based on bias and/or improper aggravating factors. (People v. Andrino, supra, E060793.) On remand, Judge Dennis A. McConaghy denied probation and sentenced defendant to prison for a total term of three years eight months. Having served the entire term, defendant was immediately paroled.
All further statutory references are to the Penal Code unless otherwise indicated.
At the People's request, we take judicial notice of the record and our opinion in case No. E055371. We also take judicial notice of our opinion in People v. Andrino (Aug. 14, 2015, E060793) [nonpub. opn.]. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
In this appeal, defendant contends that Judge McConaghy erroneously "based his denial of probation on findings this Court had already held to be either unsupported by the record or contrary to the law." We disagree and affirm.
I. FACTS AND PROCEDURAL BACKGROUND
We use an abbreviated version of the statement of facts set forth in People v. Andrino, supra, E060793.
In April 2010, 12-year-old Jane Doe, her mother, and her sisters visited Doe's aunt. Defendant, Doe's 20-year-old cousin, lived at the house. Defendant and Doe began texting each other, and the messages became sexual, with defendant asking about her sexual experiences. Doe felt "[a] little uncomfortable" about some of defendant's texts, but she just laughed off the sexual comments. (People v. Andrino, supra, E060793, at p. 3.)
Jane Doe testified that in April 2010, she was 12, and at the time of trial, September 12, 2011, she was 14. (People v. Andrino, supra, E060793, at p. 2.)
On April 9, 2010, the family had a party at Doe's aunt's house. During the party, defendant texted Doe about "what he wanted to do to [her] and whatnot." Doe texted back, telling defendant they were cousins and were "not supposed to be doing this." At some point during the party, Doe went into a bedroom and began using a computer. About five to 10 minutes later, defendant came into the room, closed the door, and began rubbing Doe's leg. Defendant began touching Doe's breasts, first over her clothing, then under her bra. Defendant then touched Doe under her underwear, rubbing the top part of her vagina, and penetrating her vagina with his finger. Defendant stood, pulled down his pants, grabbed the back of Doe's head, and pushed her head down, placing his penis into her mouth for approximately five minutes. When someone came into the room, defendant sat down on the bed and covered himself with a shirt. When the person left, defendant began touching Doe's breasts. When more people returned to the bedroom, Doe was able to leave. She went downstairs and sang karaoke. (People v. Andrino, supra, E060793, at p. 3.)
Later that night, defendant sent a text to Doe while she was sleeping. Her mother saw the message, which stated, "I want more, I want more. I couldn't get enough." Doe's mother was "puzzled and distraught," and answered the text on her daughter's cell phone, "Go to sleep. I'm only 12." (People v. Andrino, supra, E060793, at p. 3.)
Doe told a friend about the incident with defendant; however, she did not tell any adults. After the incident she felt confused. She indicated she did not want defendant to get in trouble and believed it was "just a mistake." (People v. Andrino, supra, E060793, at p. 4.)
On September 8, 2010, Detective Wilfredo Collazo of the Riverside County Sheriff's Department interviewed defendant at his house. Defendant denied that anything had occurred between him and his cousin, stating, "I didn't do anything man, for real," and that Doe was making stories up. Detective Collazo told defendant he knew that Doe "sucked [his] dick" but wanted to make sure defendant did not force her to do so. Defendant admitted to consensual oral sex only, denying that the incident was "forced." (People v. Andrino, supra, E060793, at p. 4.)
In defense, several family members who attended the party testified that defendant and Doe were not in the bedroom alone during the party. Defendant testified he came to the United States from the Philippines when he was 10 years old, and English was his second language. He denied being sexually attracted to Doe, fondling or rubbing her chest, touching her vagina, and putting his penis in her mouth. Defendant admitted texting Doe; however, he claimed that the texts were about Doe's boyfriend, about whom Doe was afraid to tell her mom. Defendant denied suggesting to Doe that he wanted to have sex with her. Rather, his text, "I want more" meant "I want to know more" in the sense that he wanted to know more about Doe and her boyfriend. Doe asked him not to tell her mother about her boyfriend, but when he became aware of Doe's allegations, he knew that Doe's mother had found out. (People v. Andrino, supra, E060793, at p. 4.)
II. DISCUSSION
Defendant asserts that Judge McConaghy defied this court's prior decision by sentencing him to state prison. He invites us to effectively sentence him by ordering the judge to grant probation. We reject defendant's assertion and decline his invitation.
A. Further Background Facts.
On remand for resentencing, Judge McConaghy stated that he had read this court's opinion in People v. Andrino, supra, E060793, several times, and that it was "pretty strong." He evaluated defendant under section 1203.006, subdivision (d)(1), and found nothing to prevent granting probation. He then turned to California Rules of Court, rule 4.414 to determine whether defendant should actually be granted probation.
Section 1203.066, subdivision (d)(1), provides in relevant part:
"If a person is convicted of a violation of Section 288 . . . probation may be granted only if the following terms and conditions are met:
"(A) If the defendant is a member of the victim's household, the court finds that probation is in the best interest of the child victim.
"(B) The court finds that rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.
"(C) If the defendant is a member of the victim's household, probation shall not be granted unless the defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by his or her return. . . .
"(D) If the defendant is not a member of the victim's household, the court shall prohibit the defendant from being placed or residing within onehalf mile of the child victim's residence for the duration of the probation term unless the court, on the record, states its reasons for finding that this residency restriction would not serve the best interests of the victim.
"(E) The court finds that there is no threat of physical harm to the victim if probation is granted." (§ 1203.066, subds. (d)(1)(A)(E).)
All further "rule" references are to the California Rules of Court.
Rule 4.414 provides: "Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.
"(a) Facts relating to the crime
"Facts relating to the crime include:
"(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;
"(2) Whether the defendant was armed with or used a weapon;
"(3) The vulnerability of the victim;
"(4) Whether the defendant inflicted physical or emotional injury;
"(5) The degree of monetary loss to the victim;
"(6) Whether the defendant was an active or a passive participant;
"(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;
"(8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and
"(9) Whether the defendant took advantage of a position of trust or confidence to commit the crime."
"(b) Facts relating to the defendant
"Facts relating to the defendant include:
"(1) Prior record of criminal conduct . . . ;
"(2) Prior performance on probation or parole . . . ;
"(3) Willingness to comply with the terms of probation;
"(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
"(5) The likely effect of imprisonment on the defendant and his or her dependents;
"(6) The adverse collateral consequences on the defendant's life resulting from the felony conviction;
"(7) Whether the defendant is remorseful; and
"(8) The likelihood that if not imprisoned the defendant will be a danger to others." (Rule 4.414(a), (b).)
In support of his decision to deny probation, Judge McConaghy stated the following: "The age of the victim being under 14 is one of the elements of the crime. But I also think that being age 13 years, 9 months is something different than being 12 or 10. So, I think that can be an aggravating factor that the person is under more than 14 years—well, in this case, 12 years old. But in addition to that, the nature, seriousness, and circumstance of the crime as compared to other instances of the same crime. I find that this [crime] is more serious than the typical crime because the victim is considerably less than 14. [¶] . . . The vulnerability of the victim and Appellate Court says that she wasn't vulnerable. And that's where they talk about it's got to be something more than victim's age. . . . The victim was 12 years old, which is considerably less than 14. The defendant was 20 years old, which is considerably over 18. And as far as the position of trust, granted the defendant was not in a position of trust as we generally think and was not the father, was not the caretaker, but they were living in the same house at that particular time even though it was for a short period of time. [¶] And I agree with the Appellate Court that she kept telling him no, we shouldn't do this because we're cousins, and we shouldn't. But I find that even though—in spite of all that, the defendant—I won't say that he was very sophisticated in his pursuit of her or that he was experienced in his pursuit, but it was obvious that he was pursuing her from rubbing of her leg and talking about sex and just leading up to this. And then when she's in the bedroom, he goes in the bedroom. I just see that he did pursue her. Whether it was sophisticated or not, he did pursue her. And I think that is an aggravating factor in a small way there. [¶] . . . The defendant was an active participant. He pursued her and then did what he was convicted of. [¶] . . . Whether the manner for which crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant. As I say, I don't necessarily think it's criminal sophistication or professionalism, but it certainly was a pursuit. [¶] And whether the defendant took advantage of a position of trust. I addressed that. He was not in a position of trust, but he was the older cousin. And even though that doesn't—and he wasn't placed in a position of trust. But did she trust him? It sounds like she did trust him. She went in his room with him. . . . [¶] . . . [¶] . . . For those reasons, I think the low term is the proper sentence. . . ."
B. Standard of Review.
"All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise." (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]" (Ibid.) "'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 granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311, overruled on other grounds as stated in People v. Cook (2015) 60 Cal.4th 922, 927, 939.)
"The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]" (People v. Birmingham (1990) 217 Cal.App.3d 180, 185.) Rule 4.414 sets forth the criteria the trial court should consider in deciding whether to grant probation. Rule 4.408(a) provides that a court may consider factors not listed in rule 4.414, provided those factors are "reasonably related" to that decision. (People v. Weaver, supra, 149 Cal.App.4th at p. 1313.) "'The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]' [Citation.] Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. [Citation.]" (Ibid.)
C. Analysis.
In challenging Judge McConaghy's decision to deny probation, defendant contends the judge disregarded this court's opinion in People v. Andrino, supra, E060793, by finding that: (1) "the crime was 'more serious' by reason of [Doe's] age"; (2) she was vulnerable because of the significant age difference between the two (she was 12 and he was 20); (3) she trusted him; and (4) he pursued her. According to defendant, our prior opinion foreclosed these findings, directing the trial court to grant probation. Not so.
First, our opinion does not direct the trial court to grant probation. Rather, we observed that the "evidence suggests that many or all of [the section 1203.066, subdivision (d)(1)] factors weigh in favor of a grant of probation." (People v. Andrino, supra, E060793, at pp. 10-11.) However, the inquiry does not end with section 1203.066, subdivision (d)(1), but continues with a consideration of the criteria set forth in rule 4.414(a) and (b). Here, Judge McConaghy carefully considered the factors listed in rule 4.414, along with the prior opinion of this court. He considered Doe's age in relation to the seriousness of the crime. He considered Doe's vulnerability in relation to the significant difference in age between defendant and Doe. And he noted that Doe trusted defendant who pursued her.
Section 1203.066, subdivision (d)(1), provides in relevant part:
"If a person is convicted of a violation of Section 288 . . . probation may be granted only if the following terms and conditions are met:
"(A) If the defendant is a member of the victim's household, the court finds that probation is in the best interest of the child victim.
"(B) The court finds that rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.
"(C) If the defendant is a member of the victim's household, probation shall not be granted unless the defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by his or her return. . . .
"(D) If the defendant is not a member of the victim's household, the court shall prohibit the defendant from being placed or residing within onehalf mile of the child victim's residence for the duration of the probation term unless the court, on the record, states its reasons for finding that this residency restriction would not serve the best interests of the victim.
"(E) The court finds that there is no threat of physical harm to the victim if probation is granted." (§ 1203.066, subds. (d)(1)(A)(E).)
Defendant argues Judge McConaghy "ignor[ed] the facts and the law and this Court's prior decisions." For example, according to defendant, the judge could not use vulnerability as a factor given this court's finding that vulnerability must contemplate something more than the victim's age because "a section 288 offense by its nature presumes a vulnerable victim, i.e., under the age of 14 years, and rule 4.414(a)(3) merely lists 'vulnerability of the victim' as a factor." (People v. Andrino, supra, E060793, at p. 13, fn. 10.) We further stated that "[w]hile there undoubtedly may be situations in which a 12-year-old (almost 13-year-old) minor could appropriately be determined vulnerable, no such considerations were present here. Doe was not defenseless, unguarded, unprotected, forced, or threatened with force." (People v. Smith (1979) 94 Cal.App.3d 433, 436 [describing vulnerability in the context of rule 4.421(a)(3)].)" (People v. Andrino, supra, E060793, at pp. 12-13, fn. 10.)
Judge McConaghy did not find Doe to be particularly vulnerable in the sense discussed in People v. Smith, supra, 94 Cal.App.3d 433, 436. Rather, he interpreted vulnerability in a way different from our prior discussion. Specifically, he emphasized Doe's vulnerability because of her age (12) in relation to defendant's (20), her familial relationship with defendant, and the circumstances of the visit which gave defendant socially unquestioned access to her. The judge further observed that the circumstances combined to cause Doe to trust defendant, adding to her vulnerability. Our discussion in our prior opinion was limited to the sense of vulnerability as being "defenseless, unguarded, unprotected, forced or threatened with force (People v. Andrino, supra, E060793, at p. 13, fn. 10), but rule 4.408(a) allows a court to consider factors not listed in the sentencing rules as long as they are reasonably related to the decision being made. Judge McConaghy's interpretation of vulnerability based on the circumstances did just that.
The decision to grant or deny probation lies with the trial court and we review the decision for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 377.) We will affirm the trial court's ruling as long as the record shows the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (Id. at p. 378.)
Having found one factor (vulnerability) to support Judge McConaghy's decision, we conclude he did not abuse his discretion in deciding to deny probation.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.