People v. Ochoa CA2/6

Filed 7/27/16 P. v. Ochoa CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B266004 (Super. Ct. No. BA408410) Plaintiff and Respondent, (Los Angeles County)

v.

MIGUEL A. OCHOA,

Defendant and Appellant.

Miguel A. Ochoa appeals his conviction by jury of lewd conduct on a child 1 under the age of 14. (Pen. Code, § 288, subd. (a).) Appellant contends that the trial court abused its discretion in denying probation and sentencing him to six years state prison. We affirm. In 2013, M.C. (age 13) told her mother that appellant touched and kissed her and had sexual intercourse with her two years earlier. The mother was appellant's girlfriend and appellant was still living with the family. After the police were called, appellant told a deputy sheriff that M.C. flirted with him and that he had intercourse with her. Appellant said that he digitally penetrated, orally copulated, and inserted his penis in M.C.'s vagina on another occasion. The jury found appellant guilty of one count of lewd conduct (count 2;

1 All statutory references are to the Penal Code unless otherwise stated.

§ 288, subd. (a)) but acquitted on a second count of lewd conduct (count 5; § 288, subd. (a)(1)) and three counts of forcible lewd conduct (counts 1 & 3;§ 288, subd. (b)(1)). Discussion Appellant argues that the trial court abused is discretion in not granting probation. Probation is an act of leniency, not a matter of right. (People v. Walmsley (1985) 168 Cal.App.3d 636, 638.) "A defendant who is denied probation bears a heavy burden to show the trial court has abused its discretion. [Citations.] Furthermore, 'a denial of probation after consideration of the application on its merits is almost invariably upheld. [Citations.]' [Citation.]" (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157.) The trial court denied probation because the victim was 11 to 12 years old and appellant abused a position of trust. It found that "one time on an 11-to-12-year-old girl is one time too many" and "I don't think that's a probationary sentence." Appellant contends that the trial court erred in assuming that the conviction rendered him statutorily ineligible for probation. Although Section 1203.066, subdivision (a) permits a grant of probation for a non-forcible lewd conduct conviction, state prison is the sentencing norm. (People v. McLaughlin (1988) 203 Cal.App.3d 1037, 1039.) "[T]he defendant bear[s] the burden of persuading the court to depart from that norm by granting probation." (Ibid.) Here the trial court considered all the factors in aggravation and mitigation and found the victim was particularly vulnerable and that appellant took advantage of a position of trust. It noted that the victim and victim's mother suffer from "educational and intellectual deficits that I sincerely hope will get addressed." Appellant asserts that he is a suitable candidate for probation because a STATIC-99 report scored him as a low risk for reoffending and a psychiatrist reported that appellant suffered from no mental disorders or abnormal sexual proclivities. Appellant was gainfully employed and had no felony record but did have prior convictions for driving without a license and vandalism. All of that was considered by the trial court.