California Cases April 21, 2020: People v. Lopez-Del Aguila

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF171343A)

OPINION

THE COURT

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.

Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Martin Zacarias Lopez-Del Aguila was charged with committing a lewd or lascivious act upon Jane Doe, a child under 14 years of age (Pen. Code, § 288, subd. (a) [count 1]). The jury found him guilty as charged. The trial court imposed a six-year prison term and ordered defendant to pay a $300 fine pursuant to section 290.3, plus a $120 penalty pursuant to Government Code section 76104.7.

On appeal, defendant makes two contentions. First, the court abused its discretion when it sentenced him to the middle term. Second, the $120 penalty should be reduced to $90. For the reasons set forth below, we reject these contentions and affirm the judgment.

I. Prosecution's case-in-chief

a. E . F .

E.F. gave birth to Jane in 2003. According to E.F., beginning in 2008, Jane often visited the residence of defendant, the paternal grandfather. Sometime in June 2017, E.F., who was at home while Jane was visiting relatives out of town, received a phone call from Jane, who said she "[had] something to talk to [her] about." After returning home that night with a paternal aunt, Jane told E.F. that defendant "had touched her inappropriately."

Sometime in August 2017, E.F. confronted defendant at his house. He admitted he "pulled [Jane's] pants down and ... touched her" and "was so sorry that this happened." E.F. told defendant "he needed to leave," she "was going to report him to the police," and "everybody was going to know what he did so that they can protect their children from him."

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In November or December 2017, Jane exhibited symptoms of "bad anxiety" and "was [no longer] able to go to school." After E.F. informed school officials about the molestation, Jane was placed on independent study. The officials reported the incident to the Bakersfield Police Department.

In February 2018, under the direction of a police detective, E.F. made a recorded pretext call to defendant. During the exchange, defendant claimed he was "induced," was influenced by "the f****** demon," "unconsciously fell in a f****** spell," "lost his mind," and "was aroused by [Jane]" when he tried to take off her pants and "touch her." However, the pants "didn't go down" because they "got stuck" and he "stopped on time." Defendant denied touching Jane's "parts" and accused his granddaughter of "lying." He claimed she was the one who "initiated" "games" that he "started to fall into" and "controlled the situation." On one occasion, Jane "jump[ed] on top of [him]" and "touched" his "parts." On another occasion, she "opened her legs and said, 'Look, grandpa.' "

b. Jane Doe

Jane was nine or ten years old and in the fourth grade when defendant molested her. The incident occurred at his house on a Saturday "towards the end of [the] school [year]" and before summer break. Jane was lying down on her stomach "not fully asleep" in a bedroom when defendant entered. After he closed the door, he "sat on the back of [her] thighs" and "pulled down [her] pants and ... underwear" "[m]aybe two inches below [her] butt." Next, defendant "pulled up" the pants and underwear and lied on top of Jane. She "felt his private against [her] butt." Defendant "got up," "flipped [Jane] over," "pulled down [her] pants from the front with [her] underwear," and "touched" her vagina for approximately 15 seconds. He then "pulled up [her] shirt" and

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placed his hand "over [her] bra" for approximately 15 seconds. Meanwhile, Jane pretended to be asleep. Defendant left the room when "he heard somebody" outside. In 2017, Jane told her paternal aunt about what had happened because she was worried about others who might visit defendant.

II. Defense's case-in-chief

a. K . S .

K.S., a high school counselor, spoke with Jane and "likely" E.F. about the molestation. During this encounter, Jane was "sad, teary eyed, not real talkative, [and] kind of withdrawn." K.S. reported the incident to the police.

b. A . F .

A.F. testified he has known defendant since 1998, he "always thought [defendant] was a standup, ... honest person," and defendant did not have a reputation for sexually abusing children.

I. Defendant's six-year prison sentence

a. Background

On October 18, 2018, following the verdict and prior to sentencing, the court granted defendant's motion for an evaluation pursuant to section 288.1. In a report filed on November 13, 2018, the licensed psychologist who interviewed defendant concluded: (1) defendant was not amenable to sex offender treatment because he "was not forthcoming regarding the committing of the offense and did not take responsibility for his behaviors"; (2) defendant's potential response to treatment was "NOT likely" positive because of his "lack of taking responsibility"; (3) although a grant of probation did not represent a threat to Jane, probation should not be granted due to defendant's "lack of taking responsibility for his behaviors and interest in conflict-resolution with the victim's family"; (4) admission to probation was not in the best interest of Jane because defendant "failed to appreciate the magnitude of the offense" and "[his] lack of insight into the

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incident coupled with the failure to take responsibility for his actions ... makes probation in general a risk to the community"; and (5) defendant "should not be allowed to be a member of the victim's household or have contact with the victim as it appears to not be in the best interest of any of the involved parties."

In a probation officer's report signed on October 18, 2018, and filed on December 4, 2018, defendant was deemed a "below average risk" for sexual offense recidivism based on the Static-99R actuarial assessment instrument. (Boldface omitted.) One factor was listed under the heading " Circumstances in Mitigation ": "[D]efendant has no known prior record of criminal conduct." One factor was listed under the heading " Circumstances in Aggravation ": "[D]efendant took advantage of a position of trust, in that he was the victim's grandfather." The report stated defendant should not be granted probation given the severity of the offense, his denial of any wrongdoing, and his penchant for blaming Jane and recommended "the mid term of six years."

In a "STATEMENT IN MITIGATION," filed on November 9, 2018, defense counsel urged the court to either grant felony probation and impose a one-year jail term or, in the alternative, impose a three-year prison term in view of (1) defendant's lack of a prior criminal record, (2) his acknowledgement of wrongdoing before his arrest, (3) his old age, and (4) his family and the community's support. (Boldface omitted.)

In a "PEOPLE'S OPPOSITION TO A PROBATION SENTENCE AND SENTENCING STATEMENT," filed on November 20, 2018, the prosecution emphasized (1) defendant's crime was "a serious and violent felony" and "an act repugnant to the moral instincts of a decent people"; (2) Jane was 10 or 11 years of age and asleep when the molestation occurred; (3) Jane suffered emotional injury; (4) defendant was "an active participant"; (5) defendant was Jane's grandfather; and (6) defendant "referred to the victim as a liar" and "denied touching the victim."

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Although the prosecution maintained "defendant's conduct warrant[ed] the upper term" of eight years, it asked the court to impose a six-year prison term.

At the December 4, 2018 sentencing hearing, the court pronounced:

"My ruling will be as follows: Circumstances in mitigation are ... defendant has no known prior record of criminal conduct. Circumstances in aggravation are defendant took advantage of a position of trust and ... he was the victim's grandfather.

"Defendant does qualify for punishment in the California Department of Corrections and Rehabilitation based on the current offense and his [section] 290 registration requirement....

"The [section] 288.1 [psychological evaluation] was completed. I received a copy of that ... and it was determined by the forensic services team that ... defendant was not amenable for outpatient mental health service and recommends the case be handled administratively through the criminal justice system....

"... [D]efendant is considered an unsuitable candidate for a grant of felony probation. Although it is acknowledged that he has no known prior record of criminal convictions, the current case circumstances are serious and ... defendant, the grandfather of the victim, awakened her by touching her sexually and inappropriately. During the initial interviews, ... defendant was fairly forthcoming and admitted to and described his actions toward and to the victim; however, ... defendant has since denied his culpability and stated the victim was lying.

"Furthermore, case circumstances show, during the pretext phone call with the victim's mother, ... defendant placed blame on the victim .... [D]efendant appears to lack willingness to observe safety boundaries and, even worse, places blame upon the child. A prison sentence is therefore appropriate.

"In taking into consideration the weight of the aggravating circumstances versus that in mitigation as well as taking into consideration case circumstances, it does appear that the midterm of six years would be appropriate...."

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b. Analysis

"[A] person who willfully and lewdly commits any lewd or lascivious acts . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." (§ 288, subd. (a).)

"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court...." (§ 1170, subd. (b); accord, Cal. Rules of Court, rule 4.420(a).) "In exercising [that] discretion ..., the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Rule 4.420(b).) "The court shall select the term which, in the court's discretion, best serves the interests of justice." (§ 1170, subd. (b).)

"[T]he broad discretion given to trial courts by section 1170 is subject to review for an abuse of discretion." ( People v . Moberly (2009) 176 Cal.App.4th 1191, 1196.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor

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warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." ( People v . Carmony (2004) 33 Cal.4th 367, 376-377.)

Here, the record demonstrates the court found significant the heinous nature of the crime, the grandparent-grandchild relationship between defendant and Jane, Jane's vulnerable condition, and defendant's refusal to take responsibility for his misconduct. In light of these factors, the court concluded it was "appropriate" to impose a prison sentence of six years rather than three years, notwithstanding the absence of a "known prior record of criminal conduct." We cannot conclude the court acted either irrationally or arbitrarily and uphold the ruling. (Cf. People v . Moberly , supra , 176 Cal.App.4th at p. 1196 [" '[A] trial court will abuse its discretion ... if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.' "].)

II. Penalty assessment (Gov. Code , § 76104.7)

a. Background

In his summation, defense counsel specified:

"... I think if [the prosecutor] and I can agree on anything, it may be the general time frame. I'm willing to accept that the allegation is supposed to have occurred about May 2013 .... [¶] ... [¶] Supposed to have happened about here. This is—this is where I say it was because she said it was still school at the time. I think that's what she said. And fourth grade, ... and it was—I think she said it was still warm out, but she at least, I think said school was still in session at the time. It wasn't—it wasn't summer yet. Once I came up with May, she said school ended back then in May; so it was sometime maybe in May of 2013...."

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b. Analysis

Prior to June 27, 2012, Government Code section 76104.7, former subdivision (a) provided:

"... [T]here shall be levied an additional state-only penalty of three dollars ($3) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses ...."

As of June 27, 2012, Government Code section 76104.7, subdivision (a), as amended by Statutes 2012, chapter 32, section 25, provides:

"... [T]here shall be levied an additional state-only penalty of four dollars ($4) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses ...."

Defendant claims the former statute governed the calculation of the penalty assessment because the crime occurred before June 27, 2012. As noted, however, defense counsel conceded in his summation that the incident occurred in May 2013. (See People v . Jackson (2005) 129 Cal.App.4th 129, 161 ["Oral statements of counsel may be treated as judicial admissions if they were intended to be such or reasonably construed by the court or the other party as such."].) By this time, the amended statute was already in effect.

The trial court ordered defendant to pay a $300 fine pursuant to section 290.3. Government Code section 76104.7, subdivision (a) mandates a penalty of 40 percent upon "every fine ... imposed and collected by the courts for all criminal offenses ...." Forty percent of $300 equals $120. Thus, the correct amount was calculated.

The judgment is affirmed.