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Filed 12/17/21 P. v. Flores CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MOISES FLORES,

Defendant and Appellant. A160578, A161643

(Sonoma County

Super. Ct. No. SCR7311481)

Defendant Moises Flores entered a no contest plea to one felony count

of committing a lewd act on a child under age 14 (hereinafter, victim). 1 The

trial court sentenced defendant to the middle term of six years in prison and

denied his invitation under Penal Code section 1170, subdivision (d) 2 to recall

t h e sentence. Before us is defendant’s consolidated appeal from the judgment

(A160578) and the trial court’s denial of his invitation to recall his sentence

(A161643)

. We affirm the judgment and dismiss defendant’s a ppeal f rom the

recall denial as taken from a nonappealable order

.

1 The victim was 12 years old.

2 Unless otherwise stated, all statutory citations herein are to the Penal

Code.2 FACTUAL AND PROCEDURAL BACKGROUND

On September 13 , 2019

, a felony complaint was filed charging

defendant with one count of committing a lewd act (kissing on the mouth) on

a child under age 14 in violation of sec tion 288, subdivision (a) and t hree

counts of committing forcible lewd act s ( touching the breasts, kissing t he

neck, and biting t he neck ) on a child under age 14 in violation of section 288,

subdivision (b)

. These charges stemmed from the following course of events.

On September 7 , 2019, the victim’s mother reported to police that

defendant, the live

- in boyfriend of the victim’s older sister, repeatedly made

sexual advances toward the victim wh ile she was staying at her father’s

house over the previous month

. 3

On September 11 , 20 19, the victim was interviewed at the Redwood

Children ’ s Center

. She described several recent incidents of abuse involving

defendant. The first incident occurred recently , about 1:00 a.m. , when the

victim was sitting on the couch watching television and the rest of the family

was a sleep. Defendant surpris ed her from behind and touched her in a n

abnormal way. Although the victim told d efendant “ ‘stop’ ” and “ ‘no,’ ” he

sat on her and kissed her

. Defendant bit her neck and gave her a hickey a s

she tried to push him off. He also touched her “ ‘chest area’ ” over her bra

with his hand and put his tongue in her mouth. Although t he victim

continued to sa y “ ‘no,’ ” she could not move defendant because he wa s still

sitting on her. When the incident was over, the victim went to her bedroom

and shut the door . S ince the door had no lock, t he victim placed items in

front of it to barricade herself inside

. T he victim had a purple mark and bite

marks on her neck.

3 Defendant lived at the victim’s father’s house.3

A n other time, about 12:30 a.m. during Labor Day weekend , d efendant

petted t he victim’s head , prompting her to slap his h and away and repeatedly

tell him to le ave . H e finally did.

T he victim recalled a t hird incide n t when she was sitting on a chair

.

Defendant tried to sit on her

, but she kneed him in the jaw as h ard as she

could and he left. The victim also recalled defendant compliment ing her and

t a k ing p hotos of her on Snap c hat

. H e denied it, but s he saw flash es go off.

On September 11 , 2019, the victim and a detective assigned to her case

initiated a pretext communication to defendant via Snapchat. Dur ing th eir

conversation, d efendant denied kissing her, giving her a hickey, or touching

her breasts. Defendant claimed he h ad been “playing” and they “accidentally

bumped heads

, ” and stated, “ ‘Oh, I don’t remember tbh [to be honest]. I was

super drunk.’ ” When the victim told defendant w hat she remembered, he

respond ed, “ ‘I’m sorry. I don’t want you to feel that way. It was all my

fault. ’ ” Defendant told the victim he would only kiss her again if she wanted

him to, but he would ask first

.

Later that da y, defendant was arrested. During his police interview,

defe ndant recalled an incident when h e sat on the victim an d, when he

turned his head, his lips accidentally touched hers. Defendant denied giving

h e r a hickey or touching her breasts. He also denied be ing drunk and could

not explain why he told the victim otherwise

. Later in the in t erview,

defendant admitted drinking but claimed not to have been impaired. He

denied any intention of kissing her again , even if she consented

.

On March 5 , 2020, defendant pleaded no contest to one count of

committing a lewd act on a child under age 14 , a serious and viol ent felony

within the meaning of sections 1192.7, subdivision (c) and 667.5,

subdivision (c)

. Defendant’s plea was an open plea with a maximum term set4

at eight years in prison. Defendant also agreed the trial court could consider

the three dismissed cou nts under section 288, subdivision (b) when

determining his sentence.

A probation officer interviewed defendant in anticipati on of sentencing

.

D efendant “declined to discuss the details of the offense but accepted

responsibility for what the victim reported occurred.” Defendant was

remorse ful, stating, “ ‘I’m ashamed of myself.’ ” He denied being sexually

attracted to young girl s and insisted he would not engage in such conduct

a gain. Using a risk assessment instrument known as Static

- 99R, probation

assessed defendant’s risk level for being convicted of another sexual offense

within five years if released on probation as “average

. . . .” The p robation

department recommended that the court appoint a psychologist or

psychiatrist to evaluate defendant pursuant to sections 288.1 and 1203.067 , a

prerequisite to placing him on probation

. 4

The trial court granted probation’s request for appointment of an

expert under section 288.1

, and on July 7 , 2020, Dr. Kevin T. Kelly, Ph.D.

, a

licensed psychologist, e xamined defendant. In his report to the court,

Dr. Kelly opined defendant was an “excellent candidate for group treatment

of sexual offense” and was likely to successfully complete a probationary

period and not to reoffend

. Dr. Kelly based his opinions on several findings,

including the fact that defendant admitted his offense, volunteered an

apology, and showed a “favorable amount of insight and self

- analysis

. . . .”

4 Section 288.1 provides in relevant part: “Any person convicted of

committing any lewd or lascivious act .

. . [on] a child under the age of 14

years shall not have his or her sentence suspended until the court obtains a

report from a reputable psychiatris t, from a reputable psychologist who

meets the standards set forth in Section 1027, as to the mental condition of

that person.” (

Accord, § 1203.067, subd. (a)(3).)5

On July 16 , 2020 , the probation department offered a supplemental

report in light of Dr. Kelly’s re port

, in wh ich it recommended that defendant

be placed on supervised probation for four year s with conditions that would

include s erv ing 12 months in jai l and complet ing progra ms and services

targeting his risk factors as directed by the probation officer and jail

personne l.

The sentencing hearing was held on July 21 , 2020. The court heard

statements from the victim’s parents describing their daughter’s deep trauma

from defendant’s actions . The prosecutor then asked the court to sentence

defendant to prison, pointing out that Dr. Kelly’s report failed to account for

“the true severity of the crimes and the impact on the victim

. . . .” The

prosecutor noted the report failed to acknowledge “the forcible elements of

what had occurred, which is in front of the Court for consideration, due to

Harvey [ 5 ] waivers

, ” and de fendant’s minimization of the severity of his

actions. (Italics added.) Defense counsel asked the court to follow Dr. Kelly’s

recommendations and place defendant on probation and in a treatment

program.

In ruling , the court found the factors in mitigation and aggravation

were “balanced

. . . .” The court then focused on defendant ’s minimiz ation of

the severity of his actions to both Dr. Kelly and the probation officer and his

violation of a position of trust in the victim’s famil y, concluding: “You had a

place in their home. And you were a trusted member, really sort of

collaterally, of their fami ly by extension. And to have their child have to feel

like she had to continuously run, to avoid you, into her room and throw you

out of her room, is just really unconscionable. I think it would have been a

different instance if we were talking about one very isolated event. But this,

5 People v. Harvey (1979) 25 Cal.3d 754.6

to the Court, looks like it was ongoing. It was ongoing for a substantial

period of time. And the l evel of responsibility that has been taken, I think

is

— doesn’t rise to the level for what actually occurred. ”

Based on these facts, the court denied probation and sentenced

defendant to the midterm of six years. The court also imposed a lifetime

registra tion requirement (§ 290 )

. A fter imposing various fees and fines, the

court reserved the issue of victim restitution and dismissed the remaining

counts w ith a Harvey waiver on the prosecutor’s motion

. Defendant filed a

timely notice of appeal on July 22

, 2020 (A160578)

.

On October 6 , 2020, defendant filed an invitation to recall his sentence

pursuant to section 1170, subdivision (d) , which t he prosecution opposed

. On

December 2 , 2020, t he court declined defendant’s invitation , prompting his

second notic e of appeal as to that order ( A161643 )

.

Case Nos. A161643 and A 160578 were consolidated for purposes of this

appeal on January 15 , 2021.

DISCUSSION

Defendant contends the trial court abused its discretion by choosing a

six

- year term over probation and r e fusing to recall the sentence . He reasons

that the court : (1) arbitrarily disregard ed the recommendations of the court

appointed expert and probation department; (2) improperly rel ied on the

victim’s age, an element of his crime, as a factor in its sentencing choice; and

(3) impos ed a “ disproportionate ” sentence contrary to section 1170. We begin

with t he governing law.

“ Following a defendant ’ s conviction of a crime, the sentencing c ourt

may choose among a variety of dispositional options. One option is to release

the offender on probation. ‘Probation is generally reserved for convicted

criminals whose conditional release into society poses minimal risk to public7

safety and promotes rehabilitation.’ [Citation.] A grant of probation is

‘qualitatively different from such traditional forms of punishment as fines or

imprisonment. Probation is neither “punishment” (see § 15 ) nor a criminal

“judgment” (see § 1445). Instead, courts deem probation an act of clemency

in lieu of punishment [citation], and its primary purpose is rehabilitative in

nature [citation].’ [Citation.] Accordingly, we have explained that a grant of

probation is an act of grace or clemency, and an offen der has no right or

privilege to be granted such release. [Citation.] Stated differently,

“[p]robation is not a right, but a privilege.’ [Citation.] ” ( People v. Moran

(2016) 1 Cal.5th 398, 402 ( Moran ); s ee Cal. Rules of Court , rule 4.414 6

[ criteria af

fecting decision to grant or deny probation include facts relating to

the crime and to the defendant]. )

A trial court has broad discretion to cho o se among its dispositional

options, and its choice will not be disturbed on appeal absent a manifest

abuse of that discretion. ( Moran, supra , 1 Cal.5 th at p. 402; People v.

Carbajal (1995) 10 Cal.4th 1114, 1120 .) Stated otherwise, in reviewing the

matter on appeal, a trial court is presumed to have acte d to achieve

legitimate sentencing objectives in the absence of a clear showing the

sentencing decision was irrational or arbitrary. ( People v. Superior Court

( Du ) (1992) 5 Cal.App.4th 822, 831.)

I. The court did not arbitrarily reject Dr. Kelly and the p robation

d epartment’s r ecommendation

.

Defendant contends the court abused its discretion by failing to adopt

the recommendation of Dr. Kelly and the probation officer to place him on

probation with conditions that include sexual offender group tr eatment

.

6 All citations to rules herein are to the Califor nia R ules of C ourt.8

Based on the record, we conclude the court had reasonable grounds to choose

a six

- year prison term over probation

.

Defendant correctly notes that Dr. Kelly opined that he presented “a

very low risk of recidivism” and had “a good prognosis for rehabilitation

. . . . ”

The probation department endorsed Dr. Kelly’s opinions

. However, the trial

court found defendant minimized the nature of his conduct to both Dr. Kelly

and the probation department. The court also noted defendant ha d no

acknowledgment of the severity of his abuse, which was “ongoing for a

substantial period of time.” The record supports these findings.

For example, according to Dr. Kelly’s report, defendant “declined to

discuss [the] details” of the charges while a cknowledg ing, “ ‘I made a mistake.

I touched her, my girlfriend’s sister. I pled no contest .’ ” Yet when Dr. Kelly

asked defendant whether he touched the victim more than once, defendant

responded, “ ‘No, once.’ ” Dr. Kelly appears to have accepted def endant’s

response at face value even though it is belied by the record, which reveals

multiple acts of sexual abuse, several of which involved use of force. Most

not ably, the victim described defendant touching her breast and kissing her

and, when she rep eatedly told him “ ‘no,’ ” he pinn ed her down by sitting on

her and holding her wrists. The victim “could not move Flores off her because

he weighed too much.” Another time, the victim was forced to “ k nee[] him in

the jaw as hard as she could” to escape his sexual advances. These forcible

acts , omitted from Dr. Kelly’s report, were before the court during sentencing

notwithstanding defendant’s no contest plea. (See People v. Barasa (2002)

103 Cal.App.4th 287, 291, fn. 3 [ Harvey waiver permits sentencing judge to

consider facts underlying dismissed charges ].)

On this undisputed record , no basis exists for disturbing the court’s

decision to reject Dr. Kelly and the probation officer’s recommendation of9

probation and to sentence defendant to the midterm of six years . (See People

v. Superior Court (

Du ), supra , 5 Cal.App.4th at p. 831.)

II. The court did not improperly rely on the victim’s age during

sentencing.

Defendant argues the trial court improperly r el ied on the victim’s age

( 12 ) , an element of his crime (see § 288, subd. (a)), when choosing the six

- year

midterm over probation. (See People v. Wilso n (1982) 135 Cal.App.3d 343,

358 [it is “impermissible dual use of facts for a court to impose an upper term

by using the same fact used to enhance the sentence”], disapproved on other

grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) The factual

record reflects otherwise.

At the sentencing hearing, the court found, “ In aggravation,

. . .

Mr. Flores did hold a position of trust within the household. He was a family

member for all purposes and he was trusted to be there. [¶] Additionally, the

victim in this case is a child and has been greatly impacted and especially

since it occurred in he r own home. And that’s supposed to be our safe place

always, is our home. And to have that sense of security destroyed is not

something I’m sure that will easily be something that she can get over. ”

As this excerpt reflects, the court, notwithstanding i ts brief reference to

the victim’s youth, relied on two valid aggravating factors: the defendant’s

exploitation of a position of trust ( see rule s 4.414(a)(9), 4.421(b)(1)) and the

victim’s particular vulnerability in her own home late at night while her

f amily slept ( see rules 4.414(a)(3)

, 4.421(a)(3) )

. 7 Defendant does not dispute

the evidence support ing these findings. As such, there are no grounds for

disturbing them. (See People v. Clark (1990) 50 Cal.3d 583, 638 [ the evidence

7 In the presentencing report, the probation officer found as an

additional aggravating factor defendant’s holding the victim’s wrists to

prevent her escape (rule 4.421(a)(11)).10

supported a finding of particular vulnerability where defendant “used his

. . .

relationship with [the victim] and knowledge gained thereby to persuade her

to admit him to her apartment” ] ; People v. Williams (1991) 228 Cal.App.3d

146, 153 [ eve n a single appropriate factor is sufficient to support an

ag gravated term ] .) As noted ante

, “ ‘[p]robation is not a right, but a

privilege.’ [Citation.] ” ( Moran, supra

, 1 Cal.5th at p. 402.)

III. The court impose d a proportionate sentence.

Defendant also challenges his sentence as disproportionate within the

meaning of section 1170, subdivision (a)(1) . This provision states: “ The

Legislature finds and declares that the purpose of sentencing is public safety

achieved through punishment, reh abilitation, and restorative justice. When

a sentence includes incarceration, this purpose is best served by terms that

are proportionate to the seriousness of the offense with provision for

uniformity in the sentences of offenders committing the same offense under

similar circumstances. ” ( § 1170, subd. (a)(1) .)

For the same reasons we rejected his previous arguments, we reject

this one

. Put simply, defendant’s premise

— to wit, that there are no

aggravating factors in this case

— is mistaken. The recor d demonstrates that

not only did defendant minimize his actions to several individuals charged

with reviewing his case but also that his actions were repeated, ongoing, and

enabled by his position of trust in the victim’s home. These factors, without

more , support the court’s imposition of the middle term. ( See § 1170 , subd.

(a)(3) [“In any c ase in which the sentence prescribed by statute for a person

convicted of a public offense is a term of imprisonment in the state

prison

. . . , the court shall sente nce the defendant to one of the terms of

imprisonment specified unless the convicted person is given any other

disposition provided by law, including a fine, jail, probation” ] .) As stated11

already, “ [w] hen a judgment of imprisonment is to be imposed and the

statute specifies three possible terms, the choice of the appropriate term shall

rest within the sound discretion of the court. ” (§ 1170, subd. (b) .)

IV. Defendant l acks s tanding to c hallenge the c ourt’s

Decembe r 2, 2020 o rder.

Last, defendant challenges the court’s denial of his “invitation” under

section 1170

, subdivision (d) 8 to recall his sentence. We agree with the

People that defendant lacks standing to bring this challenge.

Under section 1237

, 9 a defendant may appeal (1) a “final judgment of

conviction” or (2) an order made after judgment which affects the substantial

rights of the party. The December 2 , 2020 order declining defendant’s recall

invitation is neither.

8 Section 1170, subdivision (d)(1) provides in relevant part : “ When a

defendant subject to this section or subdivision (b) of Section 1168 has been

sentenced to be imprisoned in the state prison

. . . and has been committed to

the custody of the secretary

. . . , the court may, within 120 days of the date of

commitment o n its own motion, or at any time upon the recommendation of

the secretary or the Board of Parole Hearings in the case of state prison

inmates

. . . , recall the sentence and commitment previously ordered and

resentence the defendant in the same manner as if they had not previously

b een sentenced, provided the new sentence, if any, is no greater than the

initial sentence. ”

9 Section 1237 provides: “ An appeal may be taken by the defendant

from both of the following :

“ (a) Except as provided in Sections 1237.1, 1237.2, and 1237.5, from a final judgment of conviction. A sentence, an order granting probation, or the

commitment of a defendant for insanity, the indeterminate commitment of a

defendant as a mentally disordere d sex offender, or the commitment of a

defendant for controlled substance addiction shall be deemed to be a final

judgment within the meaning of this section. Upon appeal from a final

judgment the court may review any order denying a motion for a new tria l.

“(b) From any order made after judgment, affecting the substantial

rights of the party .”12

First, t he “final judgment” in this case, by which defendant was

sentenc ed to six years, was entered on July 21, 2020, and is the subject of

case No. A 160578. Further

, the t rial court’s rejection of his invitation to

recall this sentence is not “ [ an ] order made after judgment which affects the

substantial rights of the party” within the meaning of section 1237. ( People

v. Pritchett (1993) 20 Cal.App.4th 190, 193

– 194 .) As Pritchett explains:

“ S ection 1170, subdivision (d) does not confer standing on a defendant to

initiate a motion to recall a sentence. Instead, that section permits a court to

recall a sentence ‘on its own motion

. ’ (§ 1170, subd. (d), italics added;

[citations].) Consequently, the courts have uniformly held that an order

denying a defendant’s request to resentence pursuant to section 1170,

subdivision (d) is not appealable as an order affecting the substantial rights

of the party. This is because the defendant has no right to request such an

order in the first instance; consequently, his ‘substantial rights’ cannot be

affected by an order denying that whi ch he had no right to request.

[Citations.] ” (

Pritchett , supra , at pp. 193

– 194 .) Accordingly, defendant’s

appeal of the December 2 , 2020 order, case No. A161643, must be dismissed.

DISPOSITION

The judgment is affirmed in case No. A 160578

. Case No. A161643 is

dismissed.13 _________________________ Jackson, P. J.

WE CONCUR:

_________________________ Simons, J.

_________________________ Needham, J.

A160578, A161643/ People v. Moises Flores