People v. McLaughlin

Opinion

BOREN, J.

David Andrew McLaughlin was charged by complaint with three counts of committing lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and three counts of oral copulation of a child under the age of 14 (Pen. Code, § 288a, subd. (c)). As to the lewd act counts, it was additionally alleged that these were serious felonies (Pen. Code, § 1192.7, subd. (c)(6)), and that McLaughlin—the victim’s uncle—occupied

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a position of special trust and committed an act of substantial sexual conduct (Pen. Code, § 1203.066, subds. (a)(8)-(9)).

In the municipal court, McLaughlin entered an open plea of guilty to two of the lewd act counts, and admitted the special allegations. In return, it was agreed that the maximum term of incarceration he could receive was 16 years. The remaining counts against him were dismissed. Probation was denied and McLaughlin was sentenced to the mid-term of six years on both counts, each term to run concurrently with the other.

The sole issue on appeal is whether the superior court failed to exercise its discretion properly in denying probation.

Discussion

Penal Code section 1203.066, subdivision (a) declares that a defendant who commits the type of substantial sexual acts charged here while occupying a position of special trust is /«eligible for probation. However, probation may still be a potential sentencing choice provided that the trial 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. [1J] (2) Imprisonment of the defendant is not in the best interest of the child. [Ü] (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, [fl] (4) There is no threat of physical harm to the child victim if there is no imprisonment. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to. The court shall state its reasons on the record for whatever sentence it imposes on the defendant.” (Pen. Code, § 1203.066, subd. (c).)