(Super. Ct. No. CM032266)
The opinion of the court was delivered by: Hull , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Timothy Michael Thompson appeals from a judgment sentencing him to state prison for committing a lewd and lascivious act on a child under the age of 14. (Pen. Code, § 288, subd. (a); unspecified section references that follow are to the Penal Code.) He argues that the trial court abused its discretion in refusing to grant probation, and erred in imposing various fines and fees. We find no abuse of discretion; we order the challenged fines reduced and stricken, respectively, and otherwise affirm the judgment.
The parties stipulated to a factual basis for the plea "from the probation report." We take the facts from that report.
Defendant exposed his penis to his young niece and made her touch it with her hand. When she was 11 years old, the victim told her mother that defendant did this "over 10 times[,]" beginning in 2003, when she was five years old. Defendant was then 18 or 19 years old. Sometimes he tried to bribe her with candy or ice cream to touch his penis. When contacted by the police, defendant admitted committing the offense once or twice.
Defendant pleaded no contest to one count of committing a lewd and lascivious act in 2003 on a child under the age of 14 (§ 288, subd. (a)), in exchange for dismissal with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) of two additional charges he committed the same crime in 2004 and 2005. The court referred the matter to the probation department and requested a psychological evaluation of defendant (see §§ 288.1, 1203.03, 1203.067).
Before the probation and sentencing hearing, the court reviewed the investigator's report, two reports by a psychologist, and the probation officer's report. The court also reviewed the defendant's written sentencing statement regarding probation and in mitigation, and letters submitted to the court by the victim's mother and a friend of defendant's father.
The psychologist's reports both state that his evaluations of defendant do not indicate defendant would be a threat to the victim or the public, and he has the ability and potential to benefit from an outpatient sex offender therapy program. The first report states that defendant has psychological difficulties, including chronic depression and anxiety, but he does not appear to be impulsive, violent, potentially dangerous or unstable, and he expresses no resentment toward the victim. The offenses occurred when defendant was sexually inexperienced and, in the psychologist's view, his conduct was similar "to that of a typical adolescent sex offender with no sexual experience who is exploring his sexuality in an inappropriate and unhealthy way that creates a victim, in part because of his self-centeredness and immaturity." The psychologist's second report states explicitly that defendant "is an appropriate probation candidate, as his level of dangerousness is low, he has a positive prognosis for responding to sex offender therapy, and he would benefit from the structure and accountability of probation, especially a requirement that he participate in a mental health intervention which combines outpatient counseling and a referral for psychotropic medication."
The probation officer who authored the report also recommended granting probation, concluding (in part) that the acts were not egregious compared to other instances of the same crime and did not escalate, defendant's prior criminal record is minimal, he is willing and able to comply with terms of probation, and he has expressed remorse.
The victim's mother (defendant's sister) described him as the "spoiled golden child" of parents who struggled with drugs and alcohol. At age 18 or 19, when the man who defendant had believed to be his father died, ...