People v. Gutierrez

California Court of Appeal Oct 26, 1987 No. A037048Published

Before: King

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Holding. The sentencing court erred in interpreting Penal Code section 1203.066(c)(1) to require that a relative reside with the victim to be eligible for probation, but the error was harmless because it was not reasonably probable the court would have granted probation.

Issues

Whether a relative must reside with the victim to qualify for the probation eligibility exception under Penal Code section 1203.066(c)(1).
Whether the sentencing court's misinterpretation of the residency requirement for relatives constituted reversible error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In this case we hold the sentencing court erred, though harmlessly, in finding a child molester ineligible for probation on the ground the defendant, a relative of the victim, did not reside with her.”

“By any definition a first cousin is a “relative.” Thus the court erred when it found the factor prescribed by subdivision (c)(1) to be absent.”

“The error was harmless, however, for it is not reasonably probable the court would have found Gutierrez eligible for probation had it considered the remaining three factors prescribed by subdivision (c).”

Opinion

KING, J.

In this case we hold the sentencing court erred, though harmlessly, in finding a child molester ineligible for probation on the ground the defendant, a relative of the victim, did not reside with her.

Ramiro Lemos Gutierrez appeals from a judgment of imprisonment for 3 counts of lewd and lascivious conduct upon a child under 14 years old (Pen. Code, § 288, subd. (a)) and 1 count of oral copulation with a child under 14 years old and more than 10 years younger than him (Pen. Code, § 288a, subd. (c)). We affirm.

Gutierrez was 20 years old at the time of the offenses. The victim, Olivia B., was his nine-year-old first cousin. The offenses occurred over a six-month period in 1985 at the home of Gutierrez’s mother, who frequently provided child care for her niece Olivia.

[883]

Gutierrez pleaded guilty to the four oifenses. He also admitted allegations that he had engaged in substantial sexual conduct with a victim under 11 years old, a factor normally resulting in ineligibility for probation. (Pen. Code, § 1203.066, subd. (a)(8).)

The court ruled Gutierrez was ineligible for probation and sentenced him to twelve years’ imprisonment, consisting of a principal six-year term and three subordinate consecutive two-year terms.

Penal Code section 1203.066, subdivision (a)(8), states that a child molester who “has substantial sexual conduct with a victim under the age of 11 years” is ineligible for probation. However, under subdivision (c) of section 1203.066, the probation ineligibility provision is not applicable if the court makes all of the following findings:

“(1) The defendant is the victim’s natural parent, adoptive parent, stepparent, relative, or is a member of the victim’s household who has lived in the household.

“(2) Imprisonment of the defendant is not in the best interest of the child.

“(3) Rehabilitation of the defendant is feasible in a recognized treatment program designed to deal with child molestation, and if the defendant is to remain in the household, a program that is specifically designed to deal with molestation within the family.

People v. Gutierrez

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KING, J.

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