People v. Villa CA4/2 ( 2015 )

Filed 9/22/15 P. v. Villa CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060885
v. (Super.Ct.No. RIF1101097)
FRANCISCO VILLA, JR.,, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michele D. Levine,
Judge. Affirmed.
Pensanti & Associates, and Louisa B. Pensanti, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H.
Chow, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Francisco Villa, Jr., appeals from a judgment of
conviction of two acts of lewd and lascivious conduct upon a child under the age of
14 years, one forcible. (Pen. Code, § 288, subdivisions (a) and (b)(1).) The judgment
was the result of a guilty plea.1 Defendant was sentenced to an agreed term of six years
in prison.
Defendant’s contentions on this appeal revolve around a claim that he received
constitutionally deficient legal assistance in the trial court. We affirm.
STATEMENT OF THE CASE
The case was initiated by the filing of a petition in the juvenile court. The People
then moved to have the minor (defendant) declared not a fit and proper subject for the
juvenile court (Welf. & Inst. Code, § 707, subd. (c).) The motion alleged that defendant,
born on June 23, 1990, was over 14 years of age (in fact, he was almost 21 years of age)2
and was not amenable to juvenile rehabilitation.
The motion was apparently heard solely with reference to the probation officer’s
report.3 This report reflected that the incidents took place about four years before they
were reported in January 2011. The victim was a boy of seven who was being looked
1 Defendant obtained a certificate of probable cause.
2 The juvenile proceedings were held in 2011 and the eventual conviction
rendered in March 2013. In December 2013 defendant filed a request for leave to file a
late notice of appeal (In re Benoit (1973) 10 Cal. 3d 72), which this court granted.
3 The court had ordered a mental health evaluation (see Evid. Code, § 1017), but
this was apparently not provided to the trial court.
2
after by defendant’s grandmother. While the victim was playing videogames in
defendant’s bedroom, defendant grabbed him, pulled his pants down, and sat the victim
on defendant’s erect penis until defendant ejaculated. Defendant then told the victim
“ ‘Don’t tell or I will beat your ass.’ ” A second similar incident took place a few weeks
later, when defendant took the victim into a van parked in front of the home.4 Defendant
admitted that these incidents had occurred.
The probation officer also addressed the specific factors of suitability or
unsuitability set out in Welfare and Institutions Code section 707. With respect to
“criminal sophistication,” the probation officer recommended that the minor could be
found to have exhibited such sophistication because he apparently believed that he would
not be interrupted, had threatened the victim, and had taken advantage of the victim’s
presumed trust and youthful age. As for defendant’s ability to be rehabilitated, the report
noted that a commitment through defendant’s 25th birthday would be possible, and
expressed the view that he could be rehabilitated within that time frame.
With respect to defendant’s previous delinquence, the report indicated that he
should be found “unfit” because he was currently on summary probation for another
sexual offense, unlawful intercourse with a minor. (This conviction evidently occurred in
adult court.) (Pen. Code, § 261.5, subd. (c).) The report also noted that defendant was
4 The victim’s statements tended to indicate that defendant anally penetrated him
as the victim reported that “[i]t hurt.” Defendant told investigators that he was unsure
whether his penis went beyond the victim’s “cheeks.”
3
not “unfit” under the criterion relating to previous attempts at rehabilitation because this
was his first appearance in juvenile court.
Finally, the report reflected the opinion that defendant was unfit due to the gravity
of the offense, noting his threat to the victim and the victim’s later manifestations of
psychological harm.
At the hearing, defendant’s attorney challenged the element of “criminal
sophistication” and also stressed the availability of over five years of confinement and
rehabilitation. Counsel also argued, with respect to the gravity of the offense, that it was
defendant’s first offense and he was not unsalvageable.
The trial court eventually agreed with probation that defendant’s conduct in
assaulting a victim who “probably wouldn’t tell anybody and that I can overpower and
influence . . . ,” and using threats to ensure silence showed some quantum of criminal
sophistication. It found defendant fit for juvenile court under the criteria of previous
delinquence and the result of previous rehabilitation attempts (because there had been
none). However, it then found defendant unfit under the “gravity of the offense” criterion
as well. As the trial court recognized, either of the two “unfit” findings mandated a
transfer to adult court, and it made the appropriate orders.
As the matter proceeded in adult court, negotiations resulted in defendant’s
agreement to plead guilty to the charge under Penal Code section 288, subdivision (b), for
the low term of three years in state prison.
4
Accordingly, a report was prepared as authorized by Penal Code section 288.1.5
This recited defendant’s essentially unremarkable (except for the current offenses) sexual
development and history, which was otherwise exclusively heterosexual. It also
described the conduct resulting in defendant’s recent conviction as a typical teen romance
broken up by the girl’s mother when the latter realized that the couple were sexually
active. Defendant also candidly described the incidents and expressed remorse and
insight. The evaluator found him highly amenable to treatment, unlikely to repeat his
actions and commented that the acts appeared to likely be the result of “curiosity and
insecurity.”6
At this point the trial court threw a spanner into the works. It raised concerns
about defendant’s age at the time of the offenses—a point never clearly established
although defendant apparently had indicated that he thought he was 14 at the time. If he
had not reached his 14th birthday, he was not subject to trial in adult court. (Welf. &
Inst. Code, § 707, subd. (c).) Given this uncertainty, the trial court expressed doubts
about its jurisdiction over defendant and ultimately rejected the plea. Its grounds for
doing so were expressed as follows: “And the court has considered the 288 [sic] report,
5 This statute prohibits the granting of probation in a case involving a sexual
offense against a child under 14 unless the court obtains a report on the defendant’s
“mental condition.”
6She also commented that sex offender registration under Penal Code section 290
would be a detriment both to defendant and society.
5
which is also a reason why the Court rejected the plea. But the biggest concern is
whether this Court is even the appropriate jurisdiction. And we’ll sort that matter out.”
The matter eventually came on for trial over a year later, at which time defendant
elected to plead guilty to both charges in return for a sentence of six years.7
This meant, of course, that defendant wound up with twice the amount of time to
be served compared to the original deal. Hence, he challenges counsel’s failure to
prevent the trial court from withdrawing its agreement to the first plea bargain. His
arguments fail.
DISCUSSION
Defendant begins by asserting that trial counsel was ineffective in failing “to
object to the Juvenile Probation Officer’s Report.” As the People point out, the trial court
was required to obtain such a report prior to the fitness hearing. (Welf. & Inst. Code,
§ 707, subd. (c).) Defendant cites generally to cases establishing the standards for
attorney performance and the remedy; with these of course we do not disagree. (E.g.,
Strickland v. Washington (1984) 466 U.S. 668, 687-688; In re Hardy (2007) 41 Cal. 4th
977, 1025.) But defendant fails to demonstrate the applicability of these authorities in his
favor by any specific claim. The only actual argument we can find is that trial counsel
should have objected to unspecified “hearsay” in the probation officer’s report. But
hearsay statements from the victim and the victim’s family members “shall” be included
7It should be noted that the matter was then before a different judge than the one
who had rejected the earlier plea. Defendant’s second plea of guilty expressly
acknowledged that the offenses were committed after his 14th birthday.
6
in the probation officer’s report prepared for the fitness hearing. (Welf. & Inst. Code,
§ 707, subd. (e).) In the absence of anything more specific from defendant, we do not see
the error.
Defendant then complains that his “defense attorney did not make a single
objection to the psychological evidence; thus, his performance fell below an objective
standard of reasonableness.”8 This is a classic non sequitur. An attorney is not obligated
to make motions or objections which have no merit. (People v. Thompson (2010) 49
Cal. 4th 79, 122.) Defendant does not spell out what objections should have been made or
how any objections would have led to a more favorable result.
With respect to the fitness hearing, the trial court found defendant ineligible due to
the gravity of the offense. The ultimate fitness finding is reviewed for abuse of
discretion. (People v. Superior Court (Jones) (1998) 18 Cal. 4th 667, 680 (Jones).) A
minor in defendant’s situation is presumed unfit unless he or she satisfies all of the
requirements in Welfare and Institutions Code section 707, subdivision (c)(1)-(5).
(Jones, at p. 683.) Defendant does not directly challenge the finding that the charged
offenses were sufficiently “grave,” and if he did we would find no abuse of discretion
based on the age of the victim, the evidence of painful penetration, and the defendant’s
threat to harm the victim if the latter reported the abuse. Defendant points to nothing that
counsel did or did not do which would have likely led the trial court to find that the
8 It is not clear whether this refers to any relevant comments in the probation
officer’s report or the later Penal Code section 288.1 report.
7
offense was not sufficiently grave and thus fails to show the ineffective assistance of
counsel.9
The next point is that defense counsel (at some or all points) breached his duty to
investigate the matter. Without any showing as to what any such investigation would
have shown in defendant’s favor, this fails to establish the essential element of prejudice.
Defendant then moves on to the proceedings in adult court, focusing on the trial
court’s rejection of the three-year deal. In this respect he simply sets out the procedural
course of the matter following its commencement in adult court without actually asserting
what the errors were or what counsel should have done. However, by reading the
opening brief as a whole, we believe defendant intends to suggest that certain findings in
the report prepared under Penal Code section 288.1 were inaccurate. To some extent we
agree, but not in any respect which assists defendant.10
9Because one element of unfitness is sufficient, we need not consider whether
defendant’s conduct reflected “criminal sophistication.”
10 We have earlier noted that the report is overall quite favorable to defendant, his
prospects for rehabilitation, and the unlikelihood of future offenses. However, the report
includes two “sexual offender attachments” which appear to be intended to set out the
criteria in Penal Code section 1203.066 which establish absolute ineligibility for
probation for some child sex offenders (subd. (a)) and also the criteria under which
probation may be granted to other child sex offenders (subd. (d)). Statements included by
defendant in his “Statement of the Case” attack, for example, the evaluator’s finding that
he occupied a position of special trust with respect to the victim. We agree that this is
dubious.
In other instances noted by defendant, the evaluator’s comments did not actually
support the finding. For example, with respect to the disqualifying criterion of “force,
violence, duress, menace,” or threat, the evaluator simply noted that the victim was only
seven years old. However, the evaluator noted that she reviewed the police and
investigative reports, which included the victim’s report that defendant threatened to
[footnote continued on next page]
8
We agree with the People that the record indicates that the trial court’s primary
reason for rejecting the three-year deal was its doubt as to defendant’s age at the time the
offenses were committed. Defendant presents nothing to show that this concern was not
well-founded, given the lack of clarity in the record at that point concerning the dates of
the offenses.11 Furthermore, although defendant presumably believes, or wishes to
argue, that the trial court rejected the plea in part because, based on the report, it felt that
three years was inappropriate, the favorable nature of the report makes it more likely that
it felt that three years was too severe. That is, defense counsel had no reason to challenge
the report in general because it was favorable and, when the trial court rejected the three-
year plea, arguably offered defendant the chance at a better deal.12
[footnote continued from previous page]
harm him if he disclosed the first instance of abuse. To support the finding of
“substantial sexual conduct,” the evaluator again merely noted the victim’s age, but there
clearly was ample evidence of “substantial sexual conduct” which subdivision (b) of
section 1203.066 defines as either penetration, oral copulation, or masturbation of either
the victim or the offender. There was evidence in the record available to the evaluator of
actual penetration (the victim’s statement that “[i]t hurt very much” and at the very least
defendant’s conduct in placing the minor’s buttocks over his erect penis constituted a
form of masturbation. (See People v. Dunn (2012) 205 Cal. App. 4th 1086, 1098, fn. 8.)
Thus, the evaluator’s finding was fully supported.
11The offenses were pleaded as occurring after defendant’s 14th birthday, but
there was no actual evidence at that point in the proceedings.
12 Although defendant would presumably have been found ineligible for
probation if he had been convicted of the forcible charge (Pen. Code, § 288, subd. (b)), he
could have received probation if the People agreed to accept a plea to the charge under
subdivision (a). In either case the minimum term was three years under the provisions in
effect at the time of the offenses.
Subdivision (a) of Penal Code section 1203.066 applies ineligibility as well to
those convicted under subdivision (a) of section 288 if the offense includes either force or
[footnote continued on next page]
9
To summarize our conclusions with respect to these arguments as we understand
them: Any errors in specific findings by the evaluator were harmless and no challenge by
counsel would have affected the underlying critical findings of threats and substantial
sexual conduct. Furthermore, as these findings were only relevant to a grant of probation
and the agreed term was three years in state prison, there was obviously no prejudice.
Still further, at the time the trial court rejected the three-year plea, there was at
least some measurable doubt as to whether defendant was properly before the adult court
in the first place. When the plea was rejected, he therefore had the possibility of
returning to juvenile court, or even negotiating a more favorable disposition in adult
court. Of course neither of those things happened. (As noted above, a new judge took
over the case following the rejection of the plea.) Instead, defendant found himself still
in adult court and apparently facing a less generous prosecutor. But trial counsel could
not have predicted or even expected the result which in fact occurred, and acted within
professional norms by not attempting (in some unspecified way) to enforce the plea
agreement over the court’s disinclination.13
Finally, defendant simply asserts that “cumulative errors” so infected proceedings
that it violated his right to due process. There were no errors and no violation.
[footnote continued from previous page]
threats, or substantial sexual conduct; but the ineligibility only applies if these elements
are pleaded and proved. (Pen. Code, section 1203.066, subd. (c)(1).)
13Nothing in the record indicates what evidence might exist which would make it
possible to “nail down” the date of the offenses, or which explains the prosecutor’s
insistence on a doubled term in the new plea agreement.
10
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
11