Opinion
H036037
12-14-2011
THE PEOPLE, Plaintiff and Respondent, v. BILLY JOE PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS082851)
1. Introduction
After a court trial, defendant Billy Joe Perez was convicted as charged of two counts of committing lewd acts on C., a boy under the age of 14. (Pen. Code, § 288, subd. (a).) After obtaining a diagnostic study regarding defendant's suitability for probation, the trial court denied probation and sentenced defendant to eight years in prison, the middle term of six years on count 1 and one-third the midterm, two years, on count 2.
Unspecified section references are to the Penal Code.
The two counts alleged in the amended information represented a significant reduction of charges from the 20 counts alleged in the original information. The original information included 10 counts of forcible lewd acts (§ 288, subd. (b)) involving the same victim.
On appeal, defendant contends that the trial court improperly denied probation based on his failure to admit guilt. He also asks us to independently review the victim's school records to determine whether the trial court erred in finding they contained no discoverable material. For the reasons stated below, we will affirm the judgment.
2. TRIAL EVIDENCE
Both C. and defendant testified at trial in March 2010. C. was born in 2000 and defendant was born in 1990. Their parents had been neighbors for 18 years and socialized in each other's houses every week or two. Defendant lived with his father, mother, and older brother. C. lived across the street with his parents.
It was undisputed that one day in August 2008, C. spent some time in defendant's bedroom. The dispute at trial concerned what happened in that bedroom, and whether it had happened before. C. testified that, on two occasions, defendant had him come upstairs to defendant's bedroom and "he made me do a pretty bad thing." Defendant testified that he never molested C.
According to C., when he had just started third grade, he accompanied his mother in bringing lemons to defendant's mother, as was her custom. They went inside the house and chatted. Defendant took C. by the hands and led him upstairs to defendant's bedroom. Defendant closed the bedroom door and the windows. Defendant told C. to remove his footwear and pants. C. asked him if he was crazy, but defendant insisted. C. removed his pants and underwear, as did defendant. It made C. feel creepy and uneasy.
In response to defendant's repeated demands, C. sucked his penis and put his tongue in his butt crack. Defendant did the same to C. It felt evil to C. During the 45 minutes they were in defendant's room, C. repeatedly told him to stop. Defendant told him not to tell anyone or something bad would happen. When he left the room, C. went outside and told his mother he wanted to go home. For a while C. avoided going to defendant's house. Then he forgot about it.
The second incident took place when the families were having a joint yard sale in defendant's driveway (C. recalled it being five months later). That time defendant told C. to come with him, so he did. When C. tried to go back down the stairs, defendant took his hand.
Witnesses agreed that the families conducted a joint yard sale on a Sunday in August 2008, but they disagreed about which Sunday.
Defendant's father testified that C. ran upstairs by himself. The father yelled at C. Defendant came out of his room and said he would watch C. for a while.
According to C., when they went inside defendant's bedroom, defendant closed the door and forcefully told C. to take off his shoes, socks and pants, so he did. Defendant removed C.'s underwear. C. was remembering what happened the time before, so he pulled up his underwear, but defendant removed it again. Defendant removed his own footwear, clothes, and underwear. Defendant said that C.'s father had said that C. had to do what defendant told him, but C. did not believe him. Defendant told him what he was planning to do and said he would give him a dollar in coins or a toy car, which offers C. rejected.
Defendant had C. get on his knees and then pushed C.'s head towards his penis. Defendant first had C. suck his penis for a short time. Then defendant turned around and bent over and had C. put his tongue in defendant's butt crack for a short time. Defendant sucked on C.'s penis and put his tongue in C.'s butt crack. C. felt "trapped, so I had no choice but to do it." C. recalled that the skin at the head of defendant's penis was not removed, unlike his own.
Defendant told C. to put his clothes on and said that if C. told anyone, something bad would happen. Defendant put on the television in his room, letting C. watch it while defendant took a shower. C. did not see defendant walk out of the shower. They went downstairs together to the backyard and smashed cans with a recycling tool until defendant said he had to see a friend. C. rejoined the yard sale.
When defendant testified, he admitted that he spent more time with C. on the day of the yard sale than he ever had before, and that they were in his room alone together, adding, "I really got no business hanging around with a kid ten years younger than me," Defendant denied that he molested C. or that C. saw his penis, but admitted that he is uncircumcised.
By defendant's account, he spent a lot of time with C. on the day of the yard sale because he went along with a number of C.'s requests. They first watched television together at defendant's house after C. used one of their bathrooms. Then they went outdoors and walked around the block and crushed cans with a recycling tool in defendant's back yard. They returned to the yard sale and went to C.'s front yard.
Defendant's friend, Rubin, called, they made plans to go to the mall, and defendant told C. and his parents he was going to leave. Defendant went upstairs for a shower and realized he would have to use his parents' shower because his older brother was using theirs. Defendant came downstairs to retrieve some clothing and saw C. sitting near defendant's father watching TV.
When defendant returned to the upstairs bathroom, he heard his father yelling at C, so he came out to see C. halfway up the stairs. Defendant's father was telling C. that he had no business upstairs. Since C. had been trying to get defendant's attention all day, defendant said C. could come upstairs and watch TV in his room while defendant showered. He told C. he would have to leave when defendant was done. Defendant's father asked C. if he was okay with that. C. nodded.
Defendant opened his bedroom door and turned on the TV. Defendant told C. he could watch the TV and play with the dog, but not touch anything. C. nodded agreement, but he immediately grabbed a model car, and dropped it when defendant told him to put it down, breaking its antenna. Defendant got angry and reminded him that he had said not to touch anything. C.'s response was to giggle, so defendant threatened to tell C.'s mother and then gave him a little kick in the rear end. Defendant apologized to him and explained that it was wrong to be touching things in someone else's house. Defendant told him again that he was going to take a shower. If C. behaved and watched TV he could stay, or he could leave, but he should not touch anything else. They were alone together in defendant's bedroom for two or three minutes.
Defendant went to take a shower, closing the door to his parents' room behind him. The door to defendant's room remained open.
When defendant finished showering, his friend called to say he was outside. Defendant quickly dressed and told C. it was time to go. As they walked downstairs, defendant apologized for having to leave and for kicking him. C. said it was okay as they were neighbors and friends. C. said goodbye as defendant drove off. That was the only time C. was in defendant's room.
Defendant older brother testified that he was home that day in his own bedroom and heard nothing from defendant's nearby bedroom.
When C. told his parents months later about what defendant did, they called defendant's parents, who came to C.'s house to talk. Defendant's father was upset about the accusation and returned home. When he told defendant about it, defendant was also upset. His heart pounded and he passed out. He was taken to an emergency room in an ambulance and examined, after which he returned home.
3. Findings and Sentencing
On April 6, 2010, at the conclusion of the court trial, the court found defendant guilty, stating: "[T]here's no other explanation for the child being able to describe the defendant's penis accurately, except that what the child says happened did, in fact, happen." The minor's testimony was "convincing". Defendant's testimony was "unconvincing." Sentencing was scheduled for May 5, 2010. According to the probation report, defendant told the probation officer "that he had already provided his statement during his Court trial and he did not wish to address the case further." "While he had nothing to say pertaining to the offense, he has yet to admit any wrongdoing and he told this officer, 'What happened, happened,' and he cannot do anything to change his present situation. It appears that he maintains his innocence and his position that he did nothing wrong." The report also mentioned that if the court was considering granting probation, under section 1203.067 it had to first obtain a section 1203.03 evaluation and a section 288.1 evaluation. Defendant filed a memo requesting a diagnostic study to evaluate his suitability for probation, citing a psychological evaluation prepared in connection with his pretrial request for release on bail.
On May 5, 2010, the court acknowledged having read the probation report and initially indicated, "The Court doesn't believe at this point that this is a probation case by any means. However, it never hurts to have more information." The prosecutor opposed defendant's request for probation.
The court stated: "Well, as I indicated, I'm not really contemplating probation in this case, but I do have to decide what the sentence would be. There's plenty of information about what took place, and very little enlightenment about why." The parents of defendant and the victim and numerous letters in support of defendant had expressed puzzlement and dismay.
"So far the defendant has elected to not shed any further light on what's going on inside his head. He may elect to do that if he goes on the 1203, but he may not. It's pretty obvious what the results are going to be if he develops the same posture. But one never knows if one gives it a try [sic.]." "Again, I state the Court is not contemplating probation, but never hurts to have more information." The court ordered a section 1203.03 referral.
The section 1203.03 psychological evaluation by two correctional counselors found defendant unsuitable for probation. They noted that defendant "was cooperative and remorseful, but did not accept responsibility for his behavior." During an interview, "he stated that he is remorseful for what happened to the victim, but that he is sticking by his story that he did not commit the crime."
At sentencing on July 15, 2010, the court stated, "Well, it's regrettable the defendant has chosen to continue to deny, if you will, that the incidents took place. I can understand why he's in denial, if I can phrase it that way, but it deprives him of an opportunity to express any thoughts he might have on what took place. [¶] So the Court denies probation." The court gave no other reasons for denying probation and imposed the mid-term prison sentence described above.
4. There Was No Error in Leaving the Victim's School Records Sealed.
Before trial, defense counsel subpoenaed C.'s elementary school records and, on February 11, 2010, delivered them under seal to the court for review. On February 22, 2010, after an in camera review, the trial court issued a minute order that the records should remain sealed as they did not contain any discoverable material. On appeal defendant asks that we independently review the records with attention to any evidence that might have assisted his cross-examination of C.
While making this argument, it does not appear that appellate counsel requested the trial court to forward its sealed records. (Cal. Rules of Court, rule 8.328(c)(1)(B).) This court has obtained those records by an order made on its own motion.
Education Code section 49076 restricts access to the records maintained by a school district regarding a pupil. A person needs either written parental consent or a court order to see the records unless the person qualifies under one of 11 statutory exceptions. "Information concerning a student shall be furnished in compliance with a court order or a lawfully issued subpoena." (Ed. Code, § 49077.)
The applicable principles are set forth in a review by People v. Webb (1993) 6 Cal.4th 494, 518 of Pennsylvania v. Ritchie (1987) 480 U.S. 39. "[T]he due process clause requires the 'government' to give the accused all 'material' exculpatory evidence 'in its possession,' even where the evidence is otherwise subject to a state privacy privilege, at least where no clear state policy of 'absolute' confidentiality exists. (Ritchie, supra, 480 U.S. at pp. 56-58.) When the state seeks to protect such privileged items from disclosure, the court must examine them in camera to determine whether they are 'material' to guilt or innocence. (Id. at pp. 57-61.) In Ritchie, supra, the high court held that a complete in camera review of confidential records generated by a state agency as part of a molestation investigation was required where the defendant claimed they might undercut the complaining witness's credibility and where state law did not bar their disclosure under all circumstances. (Id. at p. 61.)"
As People v. Martinez (2009) 47 Cal.4th 399, 453-454, stated of related circumstances: "This court's function is to review the confidential records that the juvenile court declined to disclose, in order to determine whether they were material and should have been disclosed. [Citation.] 'Although courts have used different terminologies to define "materiality," a majority of [the United States Supreme] Court has agreed, "[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." ' (Pennsylvania v. Ritchie, supra, 480 U.S. at p. 57, quoting United States v. Bagley (1985) 473 U.S. 667, 682.)"
We have reviewed the school records with the above precedent in mind and find no error or abuse of discretion by the trial court. The records contain nothing material to the defense. In view of this conclusion, we need not reach the Attorney General's argument that any error was not prejudicial.
5. The Denial of Probation Was Not Unconstitutional.
On appeal, defendant asserts that the "trial court denied probation based solely on its finding that appellant 'chose[] to deny . . . that the incidents took place." Thus, this ruling violated defendant's Fifth Amendment rights and misapplied the sentencing factor of the lack of remorse.
A. Defendant's Constitutional Argument Has Been Forfeited.
Defendant did not object in the trial court to the court's reasoning in denying probation and imposing his sentence. The People assert that defendant has therefore forfeited this appellate claim.
Generally, a trial court should state reasons either for granting probation or denying probation and imposing a prison sentence. (Cal. Rules of Court, rule 4.406(b)(1)-(2).) This general rule does not apply when a court denies probation to a defendant who is statutorily ineligible and imposes the middle term. (People v. Langevin (1984) 155 Cal.App.3d 520, 523.) "Where the Legislature establishes a sentencing norm and requires the court explicitly to justify a departure there from, and the court sentences in conformity with the legislative standard, all that is required on the appellate record is a showing that the court was aware of its discretion to select an alternate disposition." (Id. at p. 524.) On the other hand, reasons should be given for selecting imprisonment when the defendant is eligible for probation. (People v. Leung (1992) 5 Cal.App.4th 482, 506.)
A person who violates section 288 is ineligible for probation if the crime involves any of a number of circumstances, including a weapon, force, violence, duress, menace, fear, bodily injury, or substantial sexual conduct. (§ 1203.066.) However, a person who commits a simple molest under section 288, subdivision (a) may be considered for probation if the court first obtains a report from a psychiatrist or psychologist regarding the defendant's mental condition (§ 288.1) and a diagnostic report under section 1203.03, and conducts a hearing "at the time of sentencing to determine if probation of the defendant would pose a threat to the victim." (§ 1203.067, subd. (a)(2).) No report or diagnostic evaluation is required if evidence supports the trial court's initial determination to not grant probation. (People v. Thompson (1989) 214 Cal.App.3d 1547, 1549; People v. Ramirez (2006) 143 Cal.App.4th 1512, 1531-1532.) Thus, trial courts have a limited discretion to grant probation to violators of section 288, subdivision (a).
Section 1203.067, subdivision (a) states: "(a) Notwithstanding any other law, before probation may be granted to any person convicted of a felony specified in Section 261, 262, 264.1, 286, 288, 288a, 288.5, or 289, who is eligible for probation, the court shall do all of the following:
"(1) Order the defendant evaluated pursuant to Section 1203.03, or similar evaluation by the county probation department.
"(2) Conduct a hearing at the time of sentencing to determine if probation of the defendant would pose a threat to the victim. The victim shall be notified of the hearing by the prosecuting attorney and given an opportunity to address the court.
"(3) Order any psychiatrist or psychologist appointed pursuant to Section 288.1 to include a consideration of the threat to the victim and the defendant's potential for positive response to treatment in making his or her report to the court. Nothing in this section shall be construed to require the court to order an examination of the victim."
People v. Scott (1994) 9 Cal.4th 331 observed that under the Determinate Sentencing Act, while some provisions are mandatory, "the trial court often has broad discretion to tailor the sentence to the particular case. The choices available commonly include the decision to order probation rather than imprisonment, to impose the lower or upper term instead of the middle term of imprisonment, to impose consecutive rather than concurrent sentences under certain discretionary provisions, and to strike or stay certain enhancements or waive a restitution fine." (Id. at p. 349; our emphasis.) Moreover, "[t]he statutes and sentencing rules generally require the court to state 'reasons' for its discretionary choices on the record at the time of sentencing." (Ibid.) The court concluded "that the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Id. at p. 353.)
Defendant anticipated a forfeiture claim and seeks to circumvent it in two ways. First, he asserts that "[t]he instant error is not like the types of errors that are generally forfeited by failure to object at sentencing, as it involves the use of a constitutionally impermissible fact - the defendant's claim of innocence - to deny probation, an error under any circumstance." He relies on a forfeiture exception identified in In re Sheena K. (2007) 40 Cal.4th 875. "[A]n appellate claim-mounting to a 'facial challenge'-that phrasing or language of a probation condition is unconstitutionally vague and overbroad because, for example, of the absence of a requirement of knowledge as in the present case, does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts-a task that is well suited to the role of an appellate court." (Id. at p. 885.)
The fact that defendant advances a claim with constitutional underpinnings does not exempt him from the contemporaneous objection requirement. People v. Saunders (1993) 5 Cal.4th 580 explained: " ' "The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. . . ." ' [Citation.] ' "No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." [Citation.]' [Citation.]" (Id. at p. 590, fn. omitted.)
In this case, a timely objection by defendant would have given the trial court a chance to correct or clarify its reasons for denying probation to avoid giving the impression of relying on an unconstitutional ground. We conclude that the contention has been forfeited on appeal.
Nevertheless, we will reach the merits of defendant's argument, because he also argues that it was ineffective assistance for trial counsel to forfeit this objection.
B. There Was No Error In Denying Probation.
In this case the trial court elected to obtain a diagnostic report in aid of sentencing, despite being dubious that probation was warranted. In the diagnostic study defendant stood by his trial testimony that he did not molest the victim, thus offering the trial court little basis for concluding that releasing defendant on probation would not endanger the victim. Immediately before denying probation, the trial court stated: "Well, it's regrettable the defendant has chosen to continue to deny, if you will, that the incidents took place. I can understand why he's in denial, if I can phrase it that way, but it deprives him of an opportunity to express any thoughts he might have on what took place."
Defendant asserts that the trial court essentially punished defendant for failing to admit his guilt. Though the trial court did not expressly state that it was holding defendant's silence or continued claim of innocence against him, defendant argues that such a position was implicit in what the court said.
The constitutional privilege against self-incrimination applies at a sentencing hearing. A sentencing court must not draw an adverse inference from a criminal defendant invoking the right to remain silent at a sentencing hearing. (Mitchell v. U.S. (1999) 526 U.S. 314, 325-327 (Mitchell).) In Mitchell, the sentence depended in part on how much cocaine the defendant had sold. The sentencing court told her, " ' "I held it against you that you didn't come forward today and tell me that you really only did this a couple of times. . . . I'm taking the position that you should come forward and explain your side of this issue." ' " (Id. at p. 319.) The high court concluded, "By holding petitioner's silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled self-incrimination." (Id. at p. 330.)
Long before Mitchell, the California Supreme Court observed that while a defendant's remorse or lack thereof was generally relevant in imposing the penalty of death, "It is fundamentally unfair to urge, as was done here, that a defendant's failure to confess his guilt after he has been found guilty demonstrates his lack of remorse and that therefore such failure should be considered as a ground for imposing the death penalty. Even after he has been found guilty, a defendant is under no obligation to confess, and he has a right to urge his possible innocence to the jury as a factor in mitigation of penalty." (People v. Coleman (1969) 71 Cal.2d 1159, 1168 [overruled on another ground by Garcia v. Superior Court (1997) 14 Cal.4th 953. 966, fn. 6].) In People v. Fierro (1991) 1 Cal.4th 173, the court observed, "there appears to be little practical difference between a failure to confess and a claim of innocence; neither should be cited as evidence of lack of remorse." (Id. at p. 244.)
This principle has been applied in noncapital cases. People v. Key (1984) 153 Cal.App.3d 888 (Key) stated: "Where a defendant acknowledges guilt, but shows no remorse, he may be expected to repeat the criminal conduct under similar circumstances. [Citation.] In such a case, lack of remorse may be applied to aggravate [under a former Rule of Court]. However, here the evidence of nonconsensual intercourse consists primarily of the sharply conflicting testimony of Key and the prosecuting witness. The evidence of guilt is not overwhelming and Key steadfastly denies the rapes. Under these circumstances, Key's lack of sorrow does not indicate he is likely to engage in future sexual attacks." (Id. at pp. 900-901.)
Key did not acknowledge the constitutional ramifications of the issue. Its ruling was based simply on the court's view of human psychology. The other side of that coin, as this court has stated, is that "[l]ack of remorse is properly utilized as a reason for denying probation even when the defendant does not admit his guilt where, such as in this case, the evidence of guilt is overwhelming." (People v. Leung, supra, 5 Cal.App.4th 482, 507-508.)
Federal courts have identified the constitutional ramifications of absent proclamations of remorse. Burr v. Pollard (7th Cir. 2008) 546 F.3d 828 observed on page 832: "The Fifth Amendment protects an accused's right to remain silent at trial and sentencing. (Mitchell v. United States [(1999)], 526 U.S. 314.) That right, of course, would mean little if a judge could punish a defendant for invoking it. [Citation.] Nevertheless, silence can be consistent not only with exercising one's constitutional right, but also with a lack of remorse. The latter is properly considered at sentencing because it speaks to traditional penological interests such as rehabilitation (an indifferent criminal isn't ready to reform) and deterrence (a remorseful criminal is less likely to return to his old ways). (See Bergmann v. McCaughtry, 65 F.3d 1372, 1379 (7th Cir.1995).) The line between the legitimate and the illegitimate, however, is a fine one. As we have recognized, 'sometimes it is difficult to distinguish between punishing a defendant for remaining silent and properly considering a defendant's failure to show remorse in setting a sentence.' (Bergmann, 65 F.3d at 1379 (citing United States v. Johnson, 903 F.2d 1084, 1090 (7th Cir.1990)).)"
Federal sentencing guidelines have recognized the difference between a defendant who truly remains silent at sentencing after being convicted of a crime and one who speaks to either frivolously contest or falsely deny the conduct of which he or she was convicted. (U.S. v. Rutledge (9th Cir. 1994) 28 F.3d 998, 1002.) "[W]e hold that a defendant has the right to remain silent regarding relevant, uncharged conduct; but, once he relinquishes that right and falsely denies such conduct, the district court may weigh the false denial in considering a reduction for acceptance of responsibility." (Ibid.)
Defendant has accurately surveyed the law, but we do not subscribe to his factual premise. It is simply not the case that the sentencing court made any express finding about defendant's remorse or lack thereof. The above cases discussing remorse identify some constitutional restrictions on sentencing, but are not otherwise directly relevant. We are not required to determine whether there was such overwhelming evidence of guilt as to negate defendant's claim of innocence and establish a lack of remorse.
The California Supreme Court has acknowledged in the death penalty context, "remorse is universally deemed a factor relevant to penalty. The jury, applying its common sense and life experience, is likely to consider that issue in the exercise of its broad constitutional sentencing discretion no matter what it is told." (People v. Keenan (1988) 46 Cal.3d 478, 510.) "Whether the defendant is remorseful" is a factor for a sentencing court to consider in whether to grant or deny probation. (Cal. Rules of Court, rule 4.414(b)(7).)
The probation report in this case, in recommending that probation be denied, did not cite this rule or note defendant's lack of remorse, though it did note that "[i]t appears he maintains his innocence." The section 1203.03 evaluation stated that while defendant "is remorseful for what happened to the victim," he persisted in his position that he did not commit the crime. The sentencing court did not say anything about defendant displaying or lacking remorse.
We also do not regard this as a case where the trial court based punishment, or a negative inference, on defendant's remaining silent or refusing to confess guilt. While defendant said nothing at sentencing, he did not remain silent at trial, but testified and denied guilt. He also maintained this position post-conviction when he spoke to the probation officer and to correctional counselors in anticipation of sentencing. It was no violation of defendant's right to remain silent for the trial court to consider what defendant said and did not say when he spoke about the crime. (Cf. People v. Ghent (1987) 43 Cal.3d 739, 770-771 [no violation for prosecutor to mention that the defendant " 'hasn't so much as told you he's sorry' " when he testified at the death penalty phase]; People v. Holt (1997) 15 Cal.4th 619, 691 [no violation for prosecutor to argue that a defendant who had testified at the guilt phase " 'has shown no remorse for his crime' "].)
Whatever the relevance of a continued claim of innocence to a defendant's remorse, it does appear to be relevant to the likelihood of a defendant becoming rehabilitated through treatment. As stated in U.S. v. Miller (1st Cir. 1978) 589 F.2d 1117, "We perceive a distinction . . . between punishing a defendant for maintaining his innocence and preserving his right to appeal whether that punishment be expressly or subtly imposed and merely considering a defendant's failure to recant when evaluating his prospects for rehabilitation without incarceration." (Id. at p. 1138.) A defendant who either honestly or dishonestly proclaims his innocence is unlikely to engage in efforts at rehabilitation premised on his guilt.
In this case, though defendant's eligibility for probation did not depend on the court expressly finding this case unusual (compare, e.g., §§ 462 [first degree burglary], 1203.045 [theft of over $100,000], 1203.046 [soliciting minor to engage in felony], 1203.073 [various drug offenses]), a probation grant did depend on the existence of evidence that defendant's release on probation did not pose a threat to his victim. (§ 1203.067, subd. (a)(2).) The trial court would have abused its discretion had it granted defendant probation for two violations of section 288, subdivision (a) without first finding that releasing defendant on probation would not endanger his victim, who lived across the street from defendant. To make this finding, the trial court was justified in looking for some assurance that what the court found had happened twice would not happen again. The trial court ordered the section 1203.03 referral in the hope that defendant might "shed any further light on what's going on inside his head." For defendant to continue to deny that sexual contact had occurred, despite the trial court's express disbelief, could hardly be taken as such assurance. Defendant could conceivably have presented psychological evidence that his general expressions of remorse or even his denial of guilt signaled the possibility of rehabilitation without incarceration. But there was no such evidence. Left with defendant's adamant denial and nothing else reassuring, the trial court was left with no choice but to deny probation.
Defendant relies heavily on the juxtaposition of the trial court's denial of probation following immediately its expression of understanding and regret about defendant choosing to continue to deny that the crimes occurred. A timely objection, however, would have allowed the trial court to elaborate on its comments. We regard the trial court as having acknowledged that defendant had provided no basis through his own words or through his attorney to support a grant of probation. "Perhaps the judge could have chosen better words, but the Constitution is not violated by a mere slip of the tongue." (Burr v. Pollard, supra, 546 F.3d 828, 832.) We conclude that this was not punishment for invoking the right to remain silent or for refusing to confess. Under these circumstances, we further conclude that defense counsel was not required to object to the court's statement and that defendant was not prejudiced by the lack of an objection.
Disposition
The judgment is affirmed.
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Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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RUSHING, P.J.
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.