(Super. Ct. No. NCR67384)
The opinion of the court was delivered by: Blease , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After defendant Christopher Lee Poehler admitted violating his probation by viewing pornography, the trial court revoked probation and sentenced him to six years in state prison for lewd conduct on a child (Pen. Code, § 288, subd. (a).) Defendant contends on appeal the court abused its discretion because the violation did not involve him "hurting anyone or even touching anyone inappropriately." We find no abuse of discretion and shall affirm the judgment.
Defendant was 18 in 2005 when he sexually molested a nine-year-old girl who was a member of his extended family and lived in the same house. After family members reported his conduct, defendant admitted to police that on several occasions he rubbed the victim's vagina and buttocks, and directed the victim to touch his bare penis. To the probation officer preparing his presentence report, defendant also admitted he had twice penetrated the victim's anus with his finger, and sometimes masturbated after he finished touching her.
In exchange for the dismissal of a charge of continuous sexual abuse of a minor, defendant pled guilty to committing lewd conduct with a child. The trial court suspended imposition of sentence and placed defendant on formal probation for five years. As conditions of probation, defendant was ordered to refrain from associating with any minor female (term 17);*fn2 participate in and successfully complete an approved sex offender treatment program (term 18), and not to view any pornography (term 19).
In 2010, petitions were filed alleging defendant had violated the terms of his probation requiring him to (1) participate in and successfully complete a sex offender program, because he "continues to receive unsuccessful progress reports" in his sex offender program (term 18), he had been "voyeuring on his sister," and he had relapsed into pornography and deviant fantasies; and (2) avoid pornography (term 19). Defendant admitted he watched pornography on an available computer without permission and, while staying with his sister, he listened at her door and masturbated when he heard her having sex with her boyfriend.
The court accepted defendant's admission. The allegation he violated probation by failing in his sex offender program was stricken.
At the sentencing hearing, defense counsel asked the court to refer defendant for evaluation to determine if he has Asberger's syndrome, and urged it to reinstate probation, and extend the probationary term. He argued defendant needs a structured environment, and could perhaps be placed in a sexual offender group home.
Defense counsel called as a witness the psychotherapist leader of the sex offender program in which defendant had been participating for four years. Ms. Horwitz-Person testified that, while defendant sometimes participated actively, he completed no homework assignments for the first year, and still often goes months without attempting to complete an assignment. Homework assignments help participants understand how not to violate sexual boundaries, and they are assessed chiefly on the degree to which some effort is expended. Defendant has continued to engage in risky behaviors, including use of pornography, "kept problematic things secretive" and was failing the treatment program. Horwitz-Person testified defendant is an "opportunist" in terms of sexual conduct, who presents a "medium to medium-high" risk for reoffense.
The presentence report states that "defendant put himself in risky situations and was then untruthful about them to his therapist, group, and probation officer. He received a failing mark in the homework category on all but two of his quarterly progress reports over the past four and a half years. The quarterly progress reports for the past year and a half have all been unsuccessful overall. The second quarterly report for 2010 indicates the defendant is at high risk to ...