Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF134432, Erik Michael Kaiser, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of lewd and lascivious behavior with a minor (count 1—Pen. Code, § 288, subd. (a)) and statutory rape (count 2—§ 261.5, subd. (d)). The trial court sentenced defendant to six years’ imprisonment. On appeal, defendant contends the court abused its discretion in refusing to grant defendant probation. We find that the trial court mistakenly believed defendant was presumptively ineligible for probation when it sentenced him; therefore, the court was under a “miscomprehension” regarding its discretion to impose probation. Thus, the matter must be and is remanded so that the trial court may exercise its discretion in full cognizance of its sentencing power.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Jane Doe (born September 1991) met defendant at a local park sometime shortlyafter her eighth grade school year began in 2004. Doe was 13 years old at the time. Defendant was 22 years old. She told defendant she was 17 going on 18 years of age. Defendant told her he was 20 years old. They made a date and saw each other again the next week. The fourth time they met they engaged in “consensual” sex in the backseat of a car. Defendant and Doe had sex “[l]ots of times” thereafter. They never used protection.
Doe became pregnant in November 2004. Defendant returned to his country of origin in February 2005, when Doe was three months pregnant. Doe never told defendant she was pregnant before he left. Doe gave birth in August 2005. Doe spoke with defendant by telephone in June 2006 to inform him she had given birth to his child and to request his return so that he could help support she and the baby. During that phone call, Doe first informed defendant of her true age. She also told him there might be legal consequences facing him should he return. Defendant acknowledged that the baby was his and agreed to return to support them no matter what the consequences. Defendant came back at the end of July 2006.
Once he returned, defendant agreed to get a job to support she and the baby, to talk to her mother, and to talk to the authorities. They engaged in sexual intercourse and Doe became pregnant with her second child at the age of 14. A social worker Doe sought prenatal care from referred her to Child Protective Services. Doe gave birth to her second child in March 2007.
Officer Phil Fernandez served as an interpreter for another officer who interviewed defendant on January 19, 2007. Defendant came to the police station voluntarily. The officers informed defendant that he was not under arrest and was free to leave at any time. Nevertheless, defendant agreed to continue speaking with the officers. Defendant admitted having a sexual relationship with Doe, whom he believed to be 16 or 17 years old at its inception. He admitted to having sexual intercourse with Doe on a total of two occasions. The second time defendant had sex with Doe was when he had returned to the country. He admitted knowing that she was 15 years old at that time. Defendant first learned of Doe’s pregnancy and her true age when he was away from the country. Defendant admitted that he believed it wrong to have sexual relations with someone of Doe’s age.
After defendant’s conviction and pursuant to the provisions of section 1203.066, the trial court ordered the preparation of a section 288.1 psychological report. In that report, Dr. Craig Rath notes that defendant is apparently an illegal alien with no prior criminal history. Dr. Rath further acknowledged that defendant was not a pedophile and posed no danger to the community in general. Defendant communicated that he intends to marry Doe and support her. Nevertheless, Dr. Rath concluded that defendant does pose a danger to Doe because he intends on continuing their relationship despite the fact that Doe is still a minor.
Defendant’s sentencing memorandum noted that defendant was eligible for probation and urged the court to grant him such. It recounted a number of mitigating factors, including that the acts were “consensual,” that defendant had no criminal record, that he voluntarily spoke with law enforcement, that he posed no danger to society, and that he admitted his culpability. Attached to the memorandum were letters from Doe and her mother urging the court to grant him probation. Those letters cited as mitigating factors defendant’s intent to marry and support Doe; that cultural differences accounted for defendant’s belief that the relationship was not forbidden; that defendant had already lent support to Doe and their child; and that defendant had apologized to Doe’s mother. The People, in its sentencing memorandum, advocated for imposition of a seven-year term of imprisonment, consisting of the midterm of six years on count 1 and a consecutive one year on count 2.
The probation report, filed prior to the section 288.1 report, noted that no statutory provisions limited granting defendant probation. It ultimately recommended a grant of probation conditioned upon the service of a year in jail. Notwithstanding, it noted that “[t]he defendant does not appear to be a threat to the victim; however, the psychological evaluation has yet to be reviewed. The defendant needs to fully understand he cannot begin or maintain a sexual relationship with a juvenile, as there will be consequences.”
At the initiation of the sentencing hearing, the court stated that it found “no facts limiting defendant’s culpability under [California Rules of Court, rule] 4.413. Under [rule] 4.413(c) the presumption of ineligibility for probation is not overcome. [¶] With respect to the issue of probation, the Court finds under [rule] 4.414(a)(1) probation is denied.” Notwithstanding the court’s “indicated” decision on the issue of probation, defense counsel requested of the court whether it had read his sentencing memorandum. The court indicated it had not, but would take a look at it. Defense counsel then noted he had requested in the sentencing memorandum the opportunity to present two witnesses. The court then permitted examination of the witnesses. Defendant examined Doe and her mother, both of whom exhorted the court to grant defendant probation so that he could support his children. Upon completion of their testimony and argument by counsel, the court stated it found “no facts limiting defendant’s culpability under [rule] 4.413. Under [rule] 4.413 the defendant does not overcome the presumption of ineligibility for probation. With respect to the issue of probation, the Court finds under [rule] 4.414(a)(1) probation is denied.”
All further references to rules are to the California Rules of Court.
II. DISCUSSION
A defendant is eligible for probation unless a specific statutory provision provides otherwise. (See § 1203 et seq.; People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247 (Bruce G.).) Eligibility for probation is divided into three categories: eligible, ineligible, and presumptively ineligible. (§ 1203 et seq.) In order to grant probation to a defendant who is presumptively ineligible, the court must find that it is “an unusual case, where the interests of justice would best be served” by a grant of probation. (Rule 4.413(b).) Defendant contends that the trial court mistakenly believed that defendant was presumptively ineligible, rather than eligible, for a grant of probation in the instant matter; thus, he maintains the court abused its discretion in denying him probation because it misapplied the law. The People concede that defendant was eligible, rather than presumptively ineligible, for probation in the instant matter. Nonetheless, the People assert that a grant of probation here would have comprised an abuse of discretion; therefore, the sentencing court’s denial of probation was harmless.
In Bruce G., the sentencing court found the defendant ineligible for probation because, in his commission of the lewd and lascivious acts (§ 288, subd. (a)) upon his daughters, he had engaged in “substantial sexual conduct” with the victims as defined in section 1203.066, subdivisions (a)(8) and (b). However, the Court of Appeal found the court had erred because “substantial sexual conduct” had neither been alleged in the accusatory pleading nor found true by the jury as required by section 1203.66, subdivision (d). Thus, the defendant would have been eligible for probation insofar as the court had complied with the requirements of section 1203.067. Therefore, the trial court denied defendant probation in a state of miscomprehension of the “scope of its discretionary powers.” (Bruce G., supra, 97 Cal.App.4th at p. 1248.) “Where a trial court imposes sentence without an accurate understanding of its sentencing discretion, remand for resentencing is appropriate.” (Ibid.; see also People v. Sherrick (1993) 19 Cal.App.4th 657, 659, 661.)
Nonetheless, “a remand for resentencing would be an idle act if it would be an abuse of discretion to grant probation in this case.” (Bruce G., supra, 97 Cal.App.4th at p. 1248.) The record here “does not indicate that a decision to grant probation would be an abuse of discretion.” (Ibid.) Where there “are factors in mitigation, a grant of probation would not be an abuse of discretion. [Citation.]” (Ibid.) Here, there were multiple factors in mitigation. Doe “consented” to the sexual acts insofar as she was able; defendant had no prior criminal history; defendant did not use a weapon; imprisonment would have a negative effect on defendant’s dependents; and defendant does not pose a danger to society. Indeed, in Bruce G., where the court remanded for resentencing, the defendant was much less sympathetic than defendant here. In that case, the defendant had compelled his daughter, beginning at the age of nine, to masturbate him on at least three occasions. (Id. at pp. 1236-1242.)
We render no opinion, either explicitly or implicitly, on the propriety of the trial court exercising its discretion either in favor of or against a grant of probation to defendant on remand. From the record it is apparent that there are both mitigating and aggravating factors applicable in this case and it is solely within the trial court’s province to weigh those factors to make such a determination.
III. DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion, consistent with the views expressed herein, to determine whether defendant should be granted probation.
We concur: McKinster, Acting P.J., Miller J.