The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 ...