People v. Garcia

Opinion

THE COURT.

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After entering a plea of guilty defendant was convicted of one count of committing lewd and lascivious acts on the body of a child under the age of 14, in violation of Penal Code section 288, subdivision (a). He was found to be a mentally disordered sex offender and was committed to the State Department of Health for placement in Atascadero State Hospital. Eleven months later, defendant was returned from Atascadero State Hospital as unamenable to further medical treatment and was sentenced to prison for the five-year middle base term. Defendant contends that the trial court acted improperly by considering the familial relationship between himself and the victim as an aggravating factor at his sentencing hearing. The People disagree.

Sentencing occurred on September 13, 1982. The record indicates that the judge had read and considered an original probation officer’s report (RPO) dated July 10, 1981, and a special RPO dated September 9, 1982. These reports indicated that defendant admitted having orally copulated his seven-year-old stepdaughter and having molested her on three occasions by rubbing his penis against her vagina until he reached climax. The RPO’s

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listed that there were no mitigating factors relating to the crime itself, but noted that defendant had cooperated with the sheriff’s office from the beginning of the investigation, that defendant had expressed remorse for his actions, and that he had no record of prior criminal activity of any kind. The report noted that committing the offense upon a seven-year-old girl evinced a high degree of cruelty on defendant’s part as well as the fact that the victim had been extremely vulnerable. Both reports recommended that defendant be imprisoned for the middle base term of five years.

After listening to comments from counsel, the court noted the existence of a medical report from a court-appointed psychiatrist which stated that defendant had engaged in the same conduct with a 10-year-old girl, approximately 8 years prior to the time when the present offenses were committed. The court recognized the mitigating factors which were included in the RPO. In listing the aggravating factors, the court noted the fact that there had been several instances of abuse and noted the vulnerability of the victim, “in terms of her relationship and the position of trust the defendant had . . . .” The court imposed the middle term after finding that the aggravating circumstances and the mitigating circumstances did not significantly outweigh one another.