People v. Vizcardo CA2/6

Filed 4/28/15 P. v. Vizcardo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B253233 (Super. Ct. No. 2011014241) Plaintiff and Respondent, (Ventura County)

v.

JONATHAN REAGAN VIZCARDO,

Defendant and Appellant.

Jonathan Reagan Vizcardo appeals a judgment following his no contest plea to two counts of unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c)) and two counts of oral copulation of a person under the age of 18 (id., § 288a, subd. (b)(1)). The trial court sentenced him to an aggregate term of three years four months in state prison. We conclude, among other things, that the court did not abuse its discretion by sentencing Vizcardo to state prison and denying his request to be placed on probation. We affirm. FACTS In 2011, Vizcardo, 20 years of age, met a 14-year-old girl. They began a sexual relationship. He committed multiple acts of unlawful sexual intercourse and oral copulation with this girl. At the time he committed these offenses, Vizcardo was on "juvenile probation" as a result of a juvenile court sustained petition finding he had sexually

molested an eight-year-old girl in 2009. His juvenile probation contained a condition that he not associate with children under the age of 16. Vizcardo was arrested. He pled no contest to the current offenses. Vizcardo was evaluated under the "Static-99-R," a "State Authorized Risk Assessment Tool for Sex Offenders." The probation department said he received a score of four, "which places him in the Moderate-High Risk Category for being charged or convicted of another sexual offense, if he is released on probation." The People requested the trial court to sentence Vizcardo to state prison. The prosecutor noted that Vizcardo's contact with the 14-year-old girl was a violation of his probation. She said he also had "a previous violation of probation where he was sending and receiving pictures of genitalia to and from different females via text messages." The trial court sentenced Vizcardo to state prison, finding he was "unsuitable for probation." It said, "[S]hould I grant probation in my discretion, I would be placing young women at unreasonable risk for harm." DISCUSSION Vizcardo contends the trial court abused its discretion by not placing him on probation. We disagree. "The trial court enjoys broad discretion in determining whether a defendant is suitable for probation." (People v. Lai (2006) 138 Cal.App.4th 1227, 1256.) "A decision denying probation will be reversed only on a showing of abuse of discretion." (Id. at p. 1257.) "To establish abuse, the defendant must show that, under the circumstances, the denial of probation was arbitrary or capricious." (Ibid.) Vizcardo claims he was "twenty years old at the time" of the current offenses, and a court-appointed psychologist said he was "'emotionally' younger than his stated age, and he was clearly less mature." He notes that he had learning and educational deficiencies, was held back in school, and was consequently older than his high school classmates. He claims these factors support a grant of probation.