Opinion
D069113
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. THOMAS GARRETT, Defendant and Appellant.
Boyce & Schaefer and Laura G. Schaefer for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS254432) APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Boyce & Schaefer and Laura G. Schaefer for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Thomas Garrett appeals his sentence, imposed after he pled guilty to two counts of committing a lewd act on a victim under the age of 14. Each count relates to a different victim. The trial court imposed a term of 10 years in prison on Garrett, comprised of an upper term of eight years as to one count, and a consecutive term of two years as to the other count.
On appeal, Garrett contends that the trial court erred in relying on an improper aggravating factor—i.e., the victims' vulnerability—in declining to grant probation and in choosing to impose an upper term sentence. We conclude that even if we presume that the trial court's reliance on the aggravating factor at issue was erroneous, Garrett cannot demonstrate that he was prejudiced by the error. It is not reasonably probable that the trial court would have denied probation and sentenced Garrett to less than the upper term, even in the absence of consideration of the victims' vulnerability. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural background
Garrett was initially charged with one count of oral copulation of a child under the age of 10 and five counts of committing a lewd act on a child under the age of 14, as to victim Brianna K. (Brianna). A jury trial was held, and the jury found Garrett guilty of the lesser included offense of battery with respect to the oral copulation charge, and guilty of four of the lewd act counts. The jury deadlocked on the remaining lewd act count, and a mistrial was declared as to that count. Garrett filed a motion for new trial on the basis of juror misconduct, which the trial court granted.
On August 26, 2015, an amended consolidated information was filed charging Garrett with six counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). The charges involved two different victims. Counts 1-4 were alleged as to Brianna, and counts 5-6 were alleged as to Jane Doe. The information further alleged, as to all counts, that Garrett committed the offenses against more than one victim (§ 667.61, subd. (b)(c)(e)), and also alleged that counts 1 and 5 involved substantial sexual contact (§ 1203.066, subd. (a)(8)).
On August 31, 2015, Garrett pled guilty to counts 4 and 6. The trial court struck the enhancement allegations and dismissed the remaining charges.
On October 14, 2015, the trial court sentenced Garrett to 10 years in prison. The trial court imposed an eight-year upper term on count 4, and a consecutive two-year term on count 6.
On October 16, 2015, Garrett filed a timely notice of appeal. B. Factual background
Garrett admitted, with respect to counts 4 and 6, that "on the dates charged, I committed a lewd and lascivious act upon and with the body of Brianna K. and the body of Jane Doe, both under 14 years of age, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of me and the said minors."
The probation report provides further information about the circumstances surrounding the offenses.
Because Garrett pled guilty before trial, our recitation of the facts underlying the offenses is derived from the probation officer's report.
In 2009, when Brianna was eight years old, her family moved into a house next door to Garrett's residence. Brianna's father traveled out of town frequently for business. Her mother became friends with Garrett. Brianna's mother permitted Brianna and her three-year-old twin sisters to visit with Garrett at his home. In late 2010, Brianna returned home from a visit with Garrett and told her mother that Garrett had kissed her. At that time, Brianna's mother assumed that the kiss was an innocent act.
In March 2011, one of Brianna's younger sisters told Brianna that she had touched Garrett's penis. Brianna told her mother what her sister had told her. Brianna's mother then learned from Brianna and her sisters about a variety of acts, which included kissing and fondling, that had taken place between Garrett and her daughters. She notified the police.
During the course of the investigation, Brianna detailed numerous acts that Garrett had engaged in with her. For example, when she would visit Garrett in his garage, she would sit in his lap, and he would rub her breasts. He sometimes rubbed Brianna's breasts over her clothes and other times, he would touch her under her clothes. On other occasions, Garrett kissed Brianna, including with his tongue in her mouth. One time, while Brianna's mother was washing her car, Garrett was speaking with Brianna's mother as he put his hands down Brianna's pants. Another time, Brianna was sitting next to Garrett in his backyard when he placed her hand on his leg. She felt something strange near her hand. When she looked, she saw his penis. Garrett then took Brianna's hand and placed it on his penis. On another occasion, Brianna, who was wearing a dress at the time, sat down in Garrett's backyard with her legs apart. Garrett bent down and kissed her " 'pee-pee' " with his lips, underneath her clothes and her underwear. He told her that she had a " 'beautiful pee-pee.' "
One of Garrett's other victims was his granddaughter, Jane Doe. When she was six or seven years old, the family visited Garrett on his boat while it was moored at Catalina Island. Jane Doe's father found Jane Doe sitting on Garrett's lap wearing only a towel. Garrett had his hand inside the folds of the towel and between Jane Doe's legs. When Jane Doe's father appeared, Garrett moved his hand away from Jane Doe's vaginal area. During the same trip, Jane Doe's father saw Garrett seated at the dinette table with Jane Doe standing nearby. One of Jane Doe's feet was on the ground and the other was up on the dinette bench. Jane Doe's father asked her whether anyone had touched her private parts, and she indicated that Garrett touched her frequently. Jane Doe's father confronted Garrett. He told Garrett that what he had done was stupid and that he should get a lawyer, and Garrett replied, " 'I know.' "
III.
DISCUSSION
According to Garrett, the trial court relied on the vulnerability of the victims as an aggravating factor in deciding on the appropriate sentence. Garrett contends that the court could not properly rely on the vulnerability of the victims based on their ages because a victim's age is an inherent factor in the offense of molesting a child under the age of 14. The People assert that Garrett has forfeited this contention because he failed to raise it in the trial court. The People also assert that even if Garrett has not forfeited this contention, or if the court may review the claim because Garrett has also raised a claim of ineffective assistance of counsel, the trial court's finding of victim vulnerability was not based solely on the victims' ages, but was founded on other elements, as well. The People maintain that the trial court could thus properly rely on the victims' vulnerability as one of the factors supporting the imposition of an upper term sentence. Finally, the People contend that even if one were to assume that if the court erred in relying on the vulnerability of the victims in imposing an upper term sentence, it is not reasonably probable that Garrett would have received a more favorable result absent the error. A. Additional background
Garrett was eligible for probation, pursuant to his psychological evaluation (see Cal. Rules of Court, rule 4.413(c) ). However, the probation report recommended a sentence of 10 years in prison. The probation report stated that potential circumstances supporting probation were that Garrett had no record (rule 4.414(b)(1)); that he had the ability to comply with probation (rule 4.414(b)(4)); and that prison would likely have a negative effect on Garrett and his dependents (rule 4.414(b)(5)). The probation report listed as possible circumstances supporting a denial of probation the fact that the victims were vulnerable (rule 4.414(a)(3)), that Garrett inflicted emotional injury and the victims continue to fear him (rule 4.414(a)(4)), and that Garrett took advantage of a position of trust (rule 4.414(a)(9)).
Further rule references are to the Rules of Court.
With respect to the potential sentence, the probation report noted that mitigating factors included Garrett's lack of a prior record (rule 4.423(b)(1)) and his voluntary acknowledgment of his wrongdoing at an early stage by pleading guilty (rule 4.423(b)(3)). The probation report listed the aggravating factors as the fact that the victims were particularly vulnerable given their young age and "inability to disclose the molestations" (rule 4.421(a)(3)), the fact that Garrett had taken advantage of a position of trust (rule 4.421(a)(11)), and the fact that pursuant to the plea agreement, the People moved to dismiss four additional counts, which significantly reduced his potential prison exposure (rule 4.408(a)).
In discussing its decision-making process with respect to Garrett's sentence, the trial court noted that it was particularly concerned with the fact that Garrett "present[ed] the court with two separate individuals," the "public" individual who was a firefighter, was involved in the Coronado Yacht Club, and "has any number of people who came to know [him] over the years," and the "private Thomas Garrett," who "is the person who pled guilty to two separate acts of child molestation involving two separate victims." The trial court explained that although the court had made a pretrial ruling to exclude from evidence at trial the testimony of victims from 40 or 50 years ago, the court nevertheless could not ignore, for purposes of sentencing, the number of additional victims who alleged that Garrett had molested them as children. The court also pointed out that the case had suddenly resulted in a plea agreement after the People indicated that they had another potential victim who was planning to come forward.
The trial court noted that it had reviewed the probation report and was aware that Garrett was eligible for a grant of probation because he had undergone a psychological evaluation and that evaluation had been provided to the court. However, the court emphasized that it "could not disagree with Dr. Murphy's conclusion [in the psychological report that Garrett is not a danger to the community] any more significantly."
The trial court acknowledged that Garrett "has no prior record and appears to have the ability to comply with the terms and conditions of probation," and stated that the court was "also aware of the negative effect that imprisonment would have on his dependents and his wife." However, the court stated that it "believe[d] strongly that the circumstances supporting a denial of probation predominate . . . ." The court noted the vulnerability of the victims, including Garrett's granddaughter's medical difficulties, and explained that Garrett had inflicted emotional injuries on the victims and had taken advantage of a position of trust and confidence to commit the crimes. Based on these considerations, the trial court denied a grant of probation.
With respect to the appropriate sentence to impose on Garrett, the trial court acknowledged that the fact that Garrett had no record served as a mitigating factor. The trial court rejected the idea that the fact that Garrett had voluntarily acknowledged wrongdoing early on constituted another mitigating factor, noting that the matter had "dragged on for over four, four and a half years." The trial court proceeded to state that there were at least three circumstances in aggravation that were apparent from the record: (1) that the victims were vulnerable given their ages when the molestations began, and that they were "unable" to report the molestations, (2) that Garrett had taken advantage of a position of trust and confidence to commit the offenses, and (3) that additional counts and allegations had been dismissed, significantly reducing Garrett's potential prison exposure. The trial court concluded that the factors in aggravation predominated, and determined that it would impose the upper term on count 4. The court also determined that consecutive sentences were warranted because the case involved separate victims who were molested at different times and locations. B. Analysis
1. Although Garrett has forfeited the claim, we consider the merits in light of his claim of ineffective assistance of counsel
As noted, the People assert that Garrett has forfeited his contention that the trial court erred in relying on an improper factor in aggravation in denying him probation and/or in sentencing him to an upper term sentence with respect to count 4. It is true that Garrett failed to raise any objection to the court's analysis of the factors in mitigation and aggravation at the sentencing hearing. Generally, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) Matters that may be forfeited include situations in which "the stated reasons allegedly do not apply to the particular case" and/or "the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.) However, we may nevertheless address the merits of Garrett's claim in light of his alternative argument that defense counsel rendered ineffective assistance by failing to object to the court's reliance on the vulnerability of the victims as a factor in aggravation. (See People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its forfeiture, because defendant asserted ineffective assistance of counsel].)
2. Garrett cannot demonstrate that he was prejudiced by the error about which he complains
Even if we were to presume that Garrett is correct that the trial court erred in relying on the victims' vulnerability as a factor weighing against granting grant of probation and/or in favor of the imposition of an upper term sentence, Garrett cannot demonstrate that it is reasonably probable that he would have received a more favorable result absent the court's reliance on that factor. Specifically, any error that the trial court may have made in relying on the vulnerability of the victims as a factor justifying the denial of probation and for imposing the upper term was harmless.
We do not intend to suggest that Garrett is correct in his claim of error. Rather, we simply assume, for purposes of argument, that the trial court relied on one improper factor in declining to grant probation and in selecting an upper term sentence.
"The grant or denial of probation is within the trial court's discretion . . . ." (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) "The decision to grant or deny probation requires consideration of all the facts and circumstances of the case." (People v. Birmingham (1990) 217 Cal.App.3d 180, 185.) With respect to a trial court's decision whether to grant or deny probation, California Rules of Court, rule 4.414 provides that the "[c]riteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant," and sets forth a list of criteria that the court may consider in this regard. However, a trial court may consider additional criteria not listed in the rules, provided that those criteria are reasonably related to the court's decision. (Rule 4.408(a).)
Similarly, when imposing sentence for a crime subject to determinate sentencing, the trial court has the discretion to select the lower, middle, or upper term. (§ 1170, subd. (a)(3).) In choosing among these terms, "[t]he court shall state the reasons for its sentence choice on the record at the time of sentencing" (§ 1170, subd. (c)), but the court is "not . . . required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances." (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) A single aggravating factor may be sufficient to support an upper term sentence. (People v. Weber (2013) 217 Cal.App.4th 1041, 1064.)
We review the trial court's sentencing decision for abuse of discretion. (Sandoval, supra, 41 Cal.4th at p. 847.) A trial court abuses its discretion "if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for [the] decision." (Ibid.)
However, even if the trial court errs in imposing sentence, an appellate court need not remand the case for " 'resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." ' " (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband); People v. Price (1991) 1 Cal.4th 324, 492 ["When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper"].)
Garrett asserts that the trial court improperly relied on its conclusion that the victims in this case were particularly vulnerable in denying him probation and in imposing the upper term. It is true that a trial court is precluded from using an element of the crime or the fact of an enhancement upon which a sentence was imposed to impose the upper term (§ 1170, subd. (b); rule 4.420(d)). More specifically, a court may not impose a more severe sentence based on "particular vulnerability" of the victim where the victim's vulnerability is based solely on age, when age is an element of the offense. (See People v. Ginese (1981) 121 Cal.App.3d 468, 477; People v. Flores (1981) 115 Cal.App.3d 924, 927.) Garrett contends that the trial court relied solely on the victims' ages in support of its determination that the victims were particularly vulnerable. We are not convinced that this is so. However, even if we assume that the court based its determination that the victims were particularly vulnerable solely on their ages, we conclude that it is not reasonably probable that Garrett would have received a more favorable result if the court had not relied on the vulnerability of the victims in sentencing him. (See Osband, supra, 13 Cal.4th at p. 728.)
A child victim may be considered to be particularly vulnerable for purposes of a factor in aggravation even if the child's age is an element of the offense. (See People v. Robinson (1992) 11 Cal.App.4th 609, 615, disapproved on other grounds in Scott, supra, 9 Cal.4th at p. 353, fn. 16.) "[A] crime victim can be deemed particularly vulnerable as an aggravating factor 'for reasons not based solely on age, including the victim's relationship with the defendant and his abuse of a position of trust.' " (People v. DeHoyos (2013) 57 Cal.4th 79, 154.) A "trial court could reasonably, and properly, rely on the combination of . . . facts [i.e., that victim was vulnerable due to her age and the fact she lived alone] to find that the victim was particularly vulnerable." (People v. Alvarado (2001) 87 Cal.App.4th 178, 195.) Thus, if vulnerability of the victim is based on multiple factors, including the victim's age, a trial court may permissibly rely on the victim's particular vulnerability in imposing an upper term sentence, even with respect to an offense for which the child's age is an element of the offense. Here, the trial court mentioned not only the victims' ages, but also their "inability to report" the molestations, as well as Jane Doe's familial relationship to Garrett and her medical issues and Brianna's proximity to Garrett as his next-door neighbor, as factors related to the victims' particular vulnerability. --------
As noted, a single aggravating circumstance is sufficient to support the imposition of an upper term. (Osband, supra, 13 Cal.4th at p. 728; accord, People v. Black (2007) 41 Cal.4th 799, 815.) In addition to mentioning the victims' particular vulnerability, in considering whether to grant or deny probation and whether to impose a low, middle, or upper term sentence, the trial court noted that Garrett had inflicted long-term emotional injury on the victims, that he had taken advantage of a position of trust, and that he had faced the possibility of a much longer sentence if additional counts and allegations had not been dismissed. Any one of these factors, and certainly any combination of these factors, is sufficient to support the sentence that the trial court imposed. Further, given the trial court's explanation of its sentencing choices, we are convinced that the trial court would have imposed this sentence even if it had not considered the age of the victims as a factor establishing their vulnerability. In particular, the trial court was distressed by the fact that Garrett had projected a public image as a respected community leader, as demonstrated by the community support that he received, evidenced by the large number of letters of support presented to the trial court on his behalf, and that he had used this public image to gain the trust of his victims and their families. The trial court also expressly disagreed with the psychological assessment that concluded that Garrett was not a risk to reoffend. The trial court made clear that it believed that Garrett must go to prison, that his prison term should not be insignificant, and that an upper term sentence was appropriate given the nature of Garrett's offenses. We therefore conclude that any presumed error was harmless because it is not reasonably probable that the trial court would have granted Garrett probation or sentenced him to less than an upper term sentence in the absence of the presumed error.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J. WE CONCUR: McCONNELL, P. J. HALLER, J.