IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras)
September 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOHN R. CARNEY, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F4973)
The opinion of the court was delivered by: Duarte , J.
P. v. Carney CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Characterizing his 13-year-old victim as a "sexual temptress," 30-year-old defendant John Carney appeals from his prison sentence, contending the trial court abused its discretion in denying him probation. As we will explain, we find no abuse of discretion. We shall affirm the judgment as modified after correcting the imposed fees.
I The Crimes*fn1
Defendant, who was 30 years old and lived in Colorado, met his California victim (R.B.) online in an Xbox fantasy chat room. They communicated with each other and exchanged pictures; R.B. sent defendant sexually explicit pictures. Defendant and R.B. made arrangements to meet in California, where R.B. lived.
Their first meeting took place at a Kmart in Antioch. They hugged. That night defendant came through R.B.'s bedroom window. They had sex in the bathroom, hiding from R.B.'s parents. When discovered, R.B. told her mother that defendant was her 16-year-old boyfriend. The next day, R.B. went to defendant's hotel room, where they engaged in sexual intercourse and oral copulation. Defendant was afraid of getting caught as he knew R.B. was under age.*fn2
A few months later, defendant drove to Angels Camp where R.B. and her family were vacationing. They had sex in the men's restroom. When defendant was arrested, the police found handcuffs, a portable Web cam device, a cell phone, a laptop computer, and a digital camera in his car.
Defendant was charged with three counts of lewd acts on a minor under 14 (Pen. Code, § 288, subd. (a))*fn3 (counts I, VI, and VII) with the added allegation of substantial sexual conduct (§ 1203.066, subd. (a)(8)),*fn4 contacting a minor with intent to commit a sex offense (§ 288.3) (count II), arranging a meeting for purposes of lewd behavior (§ 288.4) (count III), oral copulation with a person who is under 14 and more than 10 years younger (§ 288a, subd. (c)(1)) (count IV), and possessing matter showing a minor engaging in or simulating sexual conduct (§ 311.11, subd. (a)) (count V). Defendant accepted a plea bargain in which he pled no contest to counts II, IV, V, and VI in exchange for a maximum sentence (cap) of six years eight months in prison. Defendant was not required to admit the substantial sexual conduct allegation as part of his plea.
The probation report indicated defendant was ineligible for probation pursuant to section 1203.066, subdivision (a)(8). The probation officer rejected defendant's assertion that he did not intend to commit a crime, noting he came to California twice and had sex with R.B. both times--"What did he think was going to happen this time?" Although R.B. claimed she "guilted" defendant into having sex, the probation officer found no excuse for a man defendant's age to become sexually involved with a 13-year-old girl. The report found two factors in aggravation--R.B.'s vulnerability and the planning involved--and two factors in mitigation--defendant's insignificant record and his prior satisfactory completion of probation. It recommended the cap of six years and eight months in prison.
A letter from R.B.'s mother indicated R.B. "acts, looks, and thinks she is older." She "seeks and prefers older people to socialize with" and was sexually active. The mother did not find defendant to be a predator and asked the court to "consider the minimal sentencing" for defendant.
R.B. wrote a letter apologizing for her conduct and asking for forgiveness. She said defendant was not a "creep," never talked inappropriately, or pressured her. He did not ask for the pictures she sent; her friends pressured her to send them. She claimed she pressured defendant into having sex. R.B. stated she had learned from her mistake.
Dr. Gary Cavanaugh evaluated defendant pursuant to section 288.1. He recounted defendant's history of drug and alcohol abuse, most of which ended in his mid-20's. Cavanaugh found no evidence defendant was a pedophile; "his behavior is best seen as immature sexuality." He believed defendant would benefit from a chemical dependency program.
Defendant's score on the Static 99 assessment was a 2, indicating a medium-low risk to reoffend.
At sentencing it was discovered that the probation report assumed defendant's plea included an explicit admission to the section 1203.066 allegation, which it did not. The defense requested and was granted a supplemental probation report. The supplemental report discussed the criteria affecting probation and maintained its previous recommendation. In particular, it found "[t]he present offense is more serious than other instances of the same crime in that the defendant repeatedly had sexual intercourse with the 13 year old victim over a period of months and traveled from Colorado twice to accomplish these crimes."
The trial court announced its tentative decision that defendant was not suitable for probation, considering the planning involved and the "fair amount of sneaking around with the victim." The court believed defendant posed a risk of harm to underage women and intended to impose six years and eight months.
The defense argued for probation, citing Cavanaugh's opinion that defendant was not a pedophile, defendant's early admission of guilt and cooperation with police, and R.B.'s involvement in the planning and subterfuge. The defense argued defendant understood that what he did was wrong and would accept any counseling that was ordered.
Focusing on the probation officer's opinion in the supplemental probation report that defendant's conduct was more serious than others similarly charged "in that the defendant repeatedly had sexual intercourse with a thirteen-year-old victim over a period of months and traveled from Colorado twice to accomplish these crimes," the court sentenced defendant to six years and eight months in prison.
I Denial of Probation
Defendant's sole contention on appeal is that the trial court abused its discretion in denying probation. Rather than focusing on the reasons the court recited as the bases for its decision, defendant takes exception to various factors cited by the probation department and resorts to blaming the 13-year-old victim for defendant's repeated illegal conduct.
A. The Law
The decision to grant or deny probation rests in the sound discretion of the trial judge, and a defendant bears a heavy burden to show abuse of that discretion in denying a request for probation. (People v. Sanchez (1987) 190 Cal.App.3d 224, 229-230.)
"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 the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citation.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citation.] 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.)
One factor in aggravation is sufficient to justify denial of probation. (People v. Robinson (1992) 11 Cal.App.4th 609, 615, disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16; see also People v. Castellano (1983) 140 Cal.App.3d 608, 615 [one factor in aggravation is sufficient to justify a sentencing choice].)
Here, we find no abuse of discretion in the denial of probation. Rather, the record reflects that the trial court's reasoning in denying probation was sound. The trial court relied on the planning that went into defendant's crimes, as well as the seriousness of defendant's crimes when compared to others similarly situated. (Cal. Rules of Court, rule 4.414(a)(1) & (a)(8).) The evidence amply supports both.
Defendant's crimes were not a one-time lapse of judgment, impulse, or chance encounter. Instead, he developed a relationship with R.B. over several months. He sent her diamond necklaces. Even though he knew she was under age, he planned to travel a great distance to meet her. He carried through with his plans. On the first trip, he had sex with her multiple times, hiding from her parents in the process. Then, after learning R.B. was only 13, not 15 as he previously believed, and after weeks to reflect on his prior conduct, defendant made a great effort to return to California to repeat it.*fn5 He was caught with pictures of male genitals, handcuffs, a digital camera, a laptop, and a Web cam--each of these devices adds to the indicia of extensive planning and preparation, and highly exploitive and extensive nature of his "relationship" with R.B.
Defendant contends a finding that defendant's crimes were more serious than other instances "is to turn a blind eye to the victim's role in this particular case." He focuses on R.B.'s decision to send him suggestive photographs, her coordination of their clandestine meetings, and her statement that she forced defendant to have sex with her. Even assuming that R.B. was a willing participant and sexually precocious; she was a child and defendant was 30 years old. California has "a strong public policy to protect children under 14." (People v. Olsen (1984) 36 Cal.3d 638, 648.) Defendant attempts to shield himself from responsibility by citing his victim's characteristics and conduct; the trial court did not abuse its discretion by declining to allow him to do so.
II Security Fee
At sentencing, the trial court imposed a single $40 court security fee. At the time of defendant's sentencing, section 1465.8 read in part: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense . . ." (Stats. 2010, ch. 720. § 33.) "[S]section 1465.8 unambiguously requires a fee to be imposed for each of defendant's convictions." (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) The parties agree the judgment must be modified to reflect court security fees for each of defendant's four convictions, in an aggregate amount of $160.
We direct the trial court to modify the abstract of judgment to impose upon defendant four separate $40 fees (for a total of $160) under section 1465.8 and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: RAYE , P. J. HULL , J.