California Court of Appeal May 14, 2014 No. D064208Unpublished
Filed 5/14/14 P. v. Bauer CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064208
Plaintiff and Respondent,
v. (Super. Ct. No. SCS230471)
MICHAEL RAYMOND BAUER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie
Sontag, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Melissa Mandel and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and
Respondent.
Michael Bauer contends the court erred in refusing to reinstate probation after the
court revoked his probation for a violation of his probation conditions. We conclude the
court did not abuse its discretion and affirm.1
FACTUAL AND PROCEDURAL BACKGROUND
In April 2009, Bauer put his hands down the pants of a seven-year-old boy and
touched the boy's penis. This incident occurred in the bathroom of a fast food restaurant
while the boy's mother was waiting outside the restroom. Shortly after, Bauer was
arrested and charged with one count of lewd and lascivious conduct. (Pen. Code, § 288,
subd. (a).)
Bauer entered a guilty plea to the lewd conduct offense under a plea agreement.
He admitted he "willfully and lewdly touch[ed] the private part [of the child] with the
intent to sexually arouse the minor or myself." The court (Judge Melinda Lasater)
suspended imposition of sentence, and placed Bauer on five years' formal probation with
certain conditions, including not associating with minors and "[not] be[ing] in places
where minors congregate, unless with an adult approved by the probation officer." Bauer
was also required to register as a sex offender. At the conclusion of the hearing, Bauer
was released from custody.
About six weeks later, Bauer was charged with violating his probation. As
detailed below, the charge was triggered by Bauer's admission that he had recent physical
1 This court has ruled on different aspects of this case in two prior opinions. (See People v. Bauer (2012) 212 Cal.App.4th 150 (Bauer II); People v. Bauer (Feb. 7, 2012, D059255) [nonpub. opn.].) 2
contact (wrestling or roughhousing) with a young boy. One month later, the court held a
probation revocation hearing. Bauer represented himself at this hearing and was not
advised of his right to counsel. After the hearing, the court found that Bauer violated his
probation condition by " 'roughhousing' " and having physical contact with a young boy.
(Bauer II, supra, 212 Cal.App.4th at pp. 154-155.) The court sentenced Bauer to the
middle term of six years in state prison, and denied Bauer's request to reinstate the
probation. (Id. at p. 155.)
On appeal, Bauer contended he was denied his right to counsel at the probation
revocation and sentencing hearings. In a published opinion, we held the court erred in
failing to inform Bauer of his right to counsel at these hearings and to obtain a knowing
waiver of this right. (Bauer II, supra, 212 Cal.App.4th at pp. 155-160.) We
conditionally reversed the judgment, concluding that if Bauer exercises his right to
counsel on remand, the court shall hold new probation revocation and sentencing
hearings. (Id. at pp. 160-162.)
On remand, Bauer exercised his right to counsel. At the new probation revocation
hearing, Bauer's counsel stated that Bauer was prepared to admit the violation,
specifically that he had physical contact with a minor and this contact violated the
probation condition. In response to the court's questions, Bauer confirmed he wanted to
waive his right to a hearing on the probation violation. The court then set the matter for
sentencing.
Before the sentencing hearing, Bauer's counsel submitted a sentencing
memorandum requesting that the court reinstate probation or impose only the low term
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for the offense. Defense counsel attached a letter written by Bauer in which he explained
in detail the specific steps he would take to successfully complete probation and
submitted certificates showing he had recently completed "Advanced Mindfulness" and
"Applied Mindfulness" classes while in jail.
The prosecutor submitted the various probation reports and a diagnostic study
performed by the Department of Corrections and Rehabilitation. In the April 2011
diagnostic study, the correctional counselor concluded that Bauer was an "unsuitable
candidate" for probation and recommended against probation. The counselor discussed
the facts of the offense (Bauer "fondled [the young boy's] penis under his pants and
underwear, skin to skin"); Bauer's lengthy criminal history reflecting a "pattern of public
nuisance and criminal behavior"; and the nature of the current probation violation that
presented substantial public safety concerns similar to the underlying offense. The
counselor stated that "Mr. Bauer . . . has been granted probation in the past with minimal
success. Without action taken to address Mr. Bauer's [criminal behavior], it is certain the
pattern of misbehavior will continue and further endanger the public." In an attached
psychological study, a clinical psychologist who examined Bauer concluded that Bauer
"represents a high risk of reoffending." She noted that Bauer has not performed well
under supervision, has difficulty following rules and dealing with authority figures, and
has chronic mental health issues.
A probation report detailed the facts relating to Bauer's violation of the probation
condition. According to the report, about six weeks after Bauer was placed on probation,
Bauer went to the Escondido police department to register as a sex offender. While he
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was there, Bauer told one of the detectives that he planned to have contact with a
homeless family including an eight-year-old boy and wanted to know whether that would
violate his probation conditions. The detective then called Bauer's probation officer, Kirk
Palmer, who spoke on the phone with Bauer. Palmer told Bauer that his probation
conditions prohibited all contact with minors, but Bauer disagreed with this statement.
Bauer then left the police department without completing his sex offender registration,
and Bauer later telephoned Palmer and said he was going to kill himself.
Within days, Bauer admitted to his probation officer that he had contact with the
homeless minor on several occasions, and admitted to " 'wrestling' " with the minor.
Bauer said he was helping members of the minor's family who were receiving services
from the same homeless agency that was providing assistance to Bauer. Bauer said other
individuals who saw the wrestling-type conduct expressed concern to the minor's mother,
but that the mother did not see any problem with Bauer's conduct and said Bauer "has a
kind heart."
At the sentencing hearing, Bauer's counsel urged the court to provide Bauer with
another opportunity to succeed on probation and identified numerous facts supporting
this request. These facts included: (1) the probation violation did not involve a
molestation and neither the child nor the family complained about the contact; (2) Bauer
has mental health issues; (3) Bauer now has more insight into his behavior after spending
time in jail; (4) Bauer successfully completed the "Mindfulness" jail classes; (5) Bauer's
letter reflects a detailed and specific plan showing he would and could comply with
probation conditions; and (6) Bauer is willing to see a psychologist and take his
5
medication during his probation. Defense counsel alternatively asked for the court to
impose the low term, noting there was no evidence that the conduct underlying the crime
(touching the penis of the young boy) was "traumatizing" to the seven-year-old victim.
In response, the prosecutor argued that probation was inappropriate because the
"probation violation didn't deal simply with missing an appointment, not attending
counseling . . . . It was having physical contact with a boy where the underlying crime
was one of child molestation." The prosecutor also said that Bauer "was on . . . six grants
of summary probation from numerous misdemeanor and infraction-type of cases
. . . spanning several years." The prosecutor asserted that "Mr. Bauer is simply not
capable of complying with the terms of probation, certainly not with the serious terms of
probation that are imposed in a case like this." The prosecutor also urged the court to
reject the lower term, given the circumstances of the crime: "It's a scary situation for the
boy in that bathroom to be alone and for something like this to happen to him. The
impact on him and his mother, I think, is undeniable. . . . [¶] It was more of an invasive
skin-to-skin type of contact which does not put this in the lower end of punishment."
After considering the arguments and the submitted documents, the court denied
probation and imposed the six-year middle term. The court explained that it was required
to accept the truth of the guilty plea in which Bauer admitted to touching the penis of a
seven-year-old boy while the boy was in a public restroom. The court also discussed that
during Bauer's recent probation, several bystanders "had been disturbed and warned the
family" about Bauer's conduct toward another young boy. The court said that Bauer is
intelligent and seems to be working hard to improve himself, but that "[e]ven . . . with all
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the strides he has made," probation was not appropriate for public protection reasons.
The court concluded: "[In] coming to the sentencing today, I was leaning to low term.
[But] I've spent a lot of time with [this case]. . . . I've just given it a lot of thought, and
. . . I have considered everything. . . . I believe you are sincere. I really do. I actually
think kind of highly of you and your intelligence and the strides you've made. [¶] It's
just that I don't think you get it and I just think for protection and for appropriate
punishment, I think the midterm is appropriate."
DISCUSSION
I. Legal Principles
A court is authorized to revoke probation if the court finds the person has violated
a probation condition and "if the interests of justice so require." (Pen. Code, § 1203.2,
subd. (a); see People v. Urke (2011) 197 Cal.App.4th 766, 772.) The prosecutor must
show the violation by a preponderance of the evidence and that the violation was willful.
(People v. Rodriguez (1990) 51 Cal.3d 437, 440-447; People v. Galvan (2007) 155
Cal.App.4th 978, 982.) The focus of the analysis is on the defendant's performance on
probation: "(1) did the probationer violate the conditions of his probation and, if so, (2)
what does such an action portend for future conduct?" (People v. Beaudrie (1983) 147
Cal.App.3d 686, 691.)
A trial court is vested with broad discretion in determining whether to reinstate
probation following probation revocation. (See People v. Rodriguez, supra, 51 Cal.3d at
p. 445; People v. Kelly (2007) 154 Cal.App.4th 961, 965; People v. Jones (1990) 224
Cal.App.3d 1309, 1315.) The court's decision is reviewed for an abuse of discretion.
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" '[O]nly in a very extreme case should an appellate court interfere with the discretion of
the trial court in the matter of denying or revoking probation.'. . ." (Rodriguez, supra, at
p. 443.)
II. Analysis
At the probation revocation hearing, Bauer admitted that he violated the probation
condition prohibiting contact with minors. He thus does not challenge the sufficiency of
the evidence supporting the court's probation revocation finding. But he contends the
trial court abused its discretion by refusing to reinstate probation.
On our review of the entire record, we conclude the court acted well within its
discretion. Bauer's probation violation was very concerning because the underlying
offense was lewd conduct with a seven-year-old boy; Bauer was specifically told by the
trial judge who initially granted probation that he should not have contact with minors;
and within weeks of being released on probation, Bauer admitted to having physical
contact with a young boy and having multiple contacts with the boy and his family.
Further, Bauer has a lengthy history of criminal conduct. Although the prior crimes were
not serious, they reflected Bauer's inability to follow rules and refrain from illegal
activities.
The court made clear that it carefully considered the totality of the circumstances,
including the evidence that Bauer was working to improve his behavior, but concluded
that for public safety reasons, it would not be appropriate to reinstate probation. The
court's conclusion was supported by the factual record, the diagnostic report, the prior
probation reports, and the psychological study. There was no abuse of discretion.
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In urging us to find an abuse of discretion, Bauer highlights various factors,
including: (1) he has no history of child molestation; (2) his view that the probation
violation incident arose from the fact that he is "gregarious and friendly" and was merely
attempting to help a homeless family; (3) during his probation, he was unsure about the
scope of the no-contact probation condition; (4) the violation occurred shortly after he
was released and thus he was not given a real chance at succeeding at probation; and (5)
he has a chronic mental illness and thus deserves a "second chance at probation."
In asserting these arguments, Bauer is essentially asking us to reweigh the
evidence. This is not the proper role of an appellate court. This court does not reevaluate
the relevant factors or substitute its judgment for that of the trial court. "We will not
interfere with the trial court's exercise of discretion 'when it has considered all facts
bearing on the [issue].' " (People v. Downey (2000) 82 Cal.App.4th 899, 910.)
There was substantial evidence in the record showing Bauer would not or could
not comply with his probation conditions and that granting probation would create a
public safety risk. On this record, Bauer has not demonstrated the trial court's refusal to