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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. CURTIS B., Defendant and Appellant.


Decided: July 27, 1987

Renee E. Torres, under appointment by the Court of Appeal, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen., Dane R. Gillette, Deputy Atty. Gen., for plaintiff and respondent.

Curtis B. was convicted by jury of five counts of sexual assault on his stepdaughter, Chablis, age 12, and one count of sexual assault on his daughter, Linda, age 13. (Pen.Code, § 288, subd. (a).) 1  Probation was denied.   No psychological report (§ 288.1) was considered by the court and defendant was sentenced to the state prison.   We affirm.

Defendant lived with his family in San Francisco:  his wife, Wanda;  the two girls mentioned above, Chablis and Linda;  the natural daughter of defendant, Yolanda; and two sons of the marriage, Curtis II and Curtis III.   At trial, Chablis testified to seven instances where defendant forced her to have intercourse during December 1983 to May 19, 1984.   She stated that on each occasion defendant came into her bedroom, removed her clothes and forced her to engage in intercourse.   After each incident, defendant ordered Chablis not to tell anyone.   In May 1984, she told her mother about these sexual assaults.   The victim stated that she said nothing earlier because she was afraid defendant would hurt her.

Linda, the other victim, testified that sometime between February and May 22, 1984, defendant forced her to have intercourse with him in the downstairs bedroom.   She could not be any more specific except to state that the only other occupants in the house at the time were the two boys.   The victim also testified that defendant frequently touched her genital area when no one was around.   Linda did not tell anyone what defendant did because she too was afraid of him.

I–IV **


Defendant next argues that this matter be remanded for resentencing because the trial court denied him probation without first ordering a psychological report as required by section 288.1.   This section provides:  “Any person convicted of committing any lewd or lascivious act ․ upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his sentence suspended until the court obtains a report from a reputable psychiatrist, or from a reputable psychologist who meets the standards set forth in section 1027, as to the mental condition of that person.”   The Attorney General argues that this section applies only when the sentencing court is leaning towards granting probation.   We agree.

Section 288.1 should be read together with section 1203.066, which declares that a defendant who committed the acts herein shall be ineligible for probation unless the court shall make 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.  [¶] (2) Imprisonment of the defendant is not in the best interest of the child.  [¶] (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.  [¶] (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.  [¶] The court shall order the psychiatrist or psychologist appointed pursuant to Section 288.1 to include a consideration of the factors specified in paragraphs (2), (3), and (4) in making his or her report to the court.”  (§ 1203.066, subd. (c).)

Reading sections 288.1 and 1203.066 together, it is evident that the Legislature intended that state prison be the sentencing norm, and that the first and foremost consideration of the sentencing court is to impose a state prison term, even for those offenses for which probation is theoretically possible.   Under this scheme, it was incumbent upon the defendant to persuade the court to depart from the norm and consider granting him probation.  (§ 1203.066, subd. (c).)  Only then, if the court believes that defendant might be a proper candidate for probation does it have a duty to request a psychological report.   In other words, if, after reviewing all the facts, the presentence report and the statements in mitigation and aggravation, the court does not feel that probation is proper, then there is no duty to request the section 288.1 report.   In fact, to do so would be a needless expenditure of judicial resources.

In People v. Franco (1986) 181 Cal.App.3d 342, 226 Cal.Rptr. 280, relied upon by defendant, the appellate court directed the trial court to obtain a section 288.1 report because the defendant requested probation.  (Id., at p. 344, 226 Cal.Rptr. 280.)   If, as defendant argues, Franco must be read to require a section 288.1 report in every instance that a defendant applies for probation, we choose not to follow that suggestion.   The trial court recognized that it had an alternative to grant probation if appropriate (§ 1203.066, subd. (c)), and it is equally clear that the court determined probation would not be appropriate in this circumstance.   In denying probation, the court found that the crimes committed were rapes, that defendant felt no remorse, that these crimes were premeditated, that defendant violated a position of trust with the victims and that the crimes were numerous over a considerable period of time.   The court had abundant reasons for rejecting probation.   The court properly declined to order a section 288.1 report.

The judgment is affirmed.


1.   All section references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

LOW, Presiding Justice.

KING and HANING, JJ., concur.