P. v. Moreno CA2/5

Filed 7/16/13 P. v. Moreno CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B245776

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA097708) v.

JOSE GARCIA MORENO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Steven D. Blades, Judge. Affirmed. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Defendant and appellant Jose Garcia Moreno entered a no contest plea to committing a lewd and lascivious act on a child under the age of 14 in violation of Penal Code section 288.1 Under the terms of the plea agreement, defendant would receive a suspended sentence of eight years in state prison, with probation for five years, contingent on defendant receiving a favorable psychological evaluation report under section 288.1.2 If the section 288.1 report was unfavorable, defendant would receive the low term of three years in state prison. Two remaining charges were to be dismissed pursuant to the plea agreement. Armando de Armas, Ph.D., prepared the section 288.1 report for the trial court. He concluded defendant presented a moderate to high risk of recidivism. Dr. de Armas based his conclusion on defendant’s insistence that he had no psychological problems and no need for treatment, although he was willing to participate in court-ordered treatment. Defendant displayed no symptoms of a mental disorder. The allegation that defendant forced the child victim to watch pornography, and the presence of pornography in the home, was also of concern to the doctor. Finally, Dr. de Armas relied on defendant’s statement that he had no opinion as to how a child sexual assault victim could be harmed. The prosecutor argued for imposition of a three-year prison sentence. Defense counsel advocated for probation. The trial court was unwilling to take a chance on probation based on the assessment of the likelihood of recidivism. The court denied defense counsel’s request to obtain a second section 288.1 report. Based on the report, the court found defendant ineligible for probation. Defendant was sentenced to state prison for the low term of three years. The two remaining counts were dismissed.