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Court of Appeal, First District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wilbert Earl JACKSON, Defendant and Appellant.


Decided: July 21, 1987

Janice M. Lagerlof, San Francisco, for defendant and appellant. Christopher J. Wei, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.


Defendant Wilbert Jackson was charged with two counts of violating Penal Code section 288a, subdivision (c) (oral copulation), and two counts of Penal Code section 288, subdivision (a) (lewd and lascivious conduct) on his twelve year old daughter.   It was also alleged that defendant was ineligible for probation because he occupied a position of special trust with the victim when he committed the sexual acts.  (Pen.Code, § 1203.066, subd. (a)(9).)

Defendant pled no contest to the violation of Penal Code section 288, subdivision (a) and admitted the allegation under Penal Code section 1203.066, subdivision (a)(9).   At the sentencing hearing defendant's motion for a continuance was denied and he was sentenced to an aggravated term of eight years imprisonment.   Defendant appeals on the grounds:  (1) that the trial court erred in denying his motion for a continuance;  (2) that inclusion in the probation report of two prior police contacts was prejudicial error;  and (3) that the trial court abused its discretion in sentencing defendant to the upper term of imprisonment.   We disagree with defendant's allegations and affirm.


I. The Trial Court Correctly Denied Defendant's Motion For A Continuance.

Defendant claims that the trial court's denial of his request for a continuance resulted in violations of statutory and constitutional rules of sentencing, thus requiring remand for resentencing.   He asserts that the court did not have all relevant information before it when his sentence was imposed, and therefore it did not consider whether he was eligible for probation.   We disagree.

The trial court has discretion to grant or deny a motion for a continuance.   (People v. Carter (1962) 208 Cal.App.2d 722, 25 Cal.Rptr. 527.)   This discretion must be, “[n]either arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.”  (People v. Warner (1978) 20 Cal.3d 678, 683, 143 Cal.Rptr. 885, 574 P.2d 1237.)

A defendant wishing to continue any criminal proceeding needs to show good cause.  Pen.Code, § 1050, subd. (e).)  What constitutes good cause is a factual question to be determined by the trial court.  (People v. Caldwell (1980) 102 Cal.App.3d 461, 479, 162 Cal.Rptr. 397.)   Some of the factors that courts have considered in determining whether to grant a motion are:  The possible benefit to the moving party;  the likelihood that a benefit will result;  the burden on the parties and the court;  and whether substantial justice will be accomplished or defeated.  (People v. Laursen (1972) 8 Cal.3d 192, 204, 104 Cal.Rptr. 425, 501 P.2d 1145.)

 On appeal a reviewing court will not disturb a denial of a continuance in the absence of a clear abuse of discretion which resulted in prejudice to the defendant (ibid;  People v. Wong (1976) 18 Cal.3d 178, 189, 133 Cal.Rptr. 511, 555 P.2d 297) or a denial of a fundamental constitutional right on the basis of the facts in the case.  (Ungar v. Sarafite (1964) 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921.)

 Defendant alleges that his attorney moved for a continuance so that defendant could be evaluated by Parents Anonymous.   However, at the hearing on the motion, defense counsel did not assert any grounds upon which the continuance could have been granted, much less assert good cause for doing so.   Nor did he prove to the trial court that he would have been benefitted by the report.  (People v. Sandoval (1977) 70 Cal.App.3d 73, 83, 138 Cal.Rptr. 609.)   Thus, the trial court's denial of the motion was not an abuse of discretion.

 Even assuming the trial court's denial of the motion was erroneous, the error was not prejudicial.   Under similar facts in a child abuse case (People v. Hernandez (1980) 111 Cal.App.3d 888, 901, 168 Cal.Rptr. 898), the appellate court held that the trial court's denial of defendant's request for an updated psychological report though erroneous was not prejudicial.   The court had before it a prior report and a recommendation to obtain an updated report, but decided on the basis of the other evidence to impose a state prison sentence.   In this case, the trial court, similarly, had before it a probation report that recommended a continuance until a more recent evaluation from Parents Anonymous could be obtained.   But, like the Hernandez court, it decided to reject the recommendation and to sentence the defendant because there was sufficient other evidence before the court to make a determination of the case.1

Alternatively, defendant claims that the court's denial of his motion for a continuance was a violation of due process.   We disagree.

 First, not every denial of a request for more time violates due process.   There are not mechanical tests for determining when a denial of a continuance is so arbitrary as to violate due process.   The answer must be determined on a case by case basis, particularly in the reasons presented to the trial judge at the time the request is denied.  (Ungar v. Sarafite, supra, 376 U.S. 575, 589, 84 S.Ct. 841, 849;  People v. Crovedi (1966) 65 Cal.2d 199, 207, 53 Cal.Rptr. 284, 417 P.2d 868;  People v. Butcher (1969) 275 Cal.App.2d 63, 69, 79 Cal.Rptr. 618.)   Due process requires hearing procedures that are fundamentally fair.  (People v. Peterson (1973) 9 Cal.3d 717, 726, 108 Cal.Rptr. 835, 511 P.2d 1187;  People v. Zikorus (1983) 150 Cal.App.3d 324, 333, 197 Cal.Rptr. 509.)   The proceedings here were fair since the court had before it sufficient evidence upon which to make a determination.   In this case, at the time of the request, defendant's counsel did not present any reasons why the motion for a continuance should have been granted.   Also, the trial court had sufficient aggravating factors upon which to make a decision.   Hence, the denial of the motion was not a violation of due process.

 Second, defendant claims that the denial of the continuance violated the California Constitutional requirement of “Truth in Evidence” and denied him a fair hearing.   The “Truth in Evidence” section states that relevant evidence must not be excluded in any criminal proceeding including post conviction motions and hearings.  (Cal. Const., art. I, § 28, subd. (d).)  Sufficient evidence was considered by the trial court during the sentencing hearing.   The court had before it the probation report, the report from Parents Anonymous, the psychiatric report as well as the pleadings.   On the basis of this evidence, the court sentenced defendant.   The trial court decided not to adopt the probation officer's recommendations.   In its opinion, the aggravating factors were sufficient for the court to imprison defendant.2

 Moreover, the trial court's refusal to continue the matter to obtain an additional report from Parents Anonymous did not deny defendant a fair hearing because the probation report recommended that an additional report be supplied to the court.   Recommendations in a probation report are only advisory, provided to aid the sentencing court in determining an appropriate disposition and may be rejected in their entirety.  (People v. Torres (1982) 133 Cal.App.3d 265, 281–282, 184 Cal.Rptr. 39;  People v. Server (1981) 125 Cal.App.3d 721, 728, 178 Cal.Rptr. 206.)   We find defendant's constitutional rights were not violated.

Furthermore, even if we were to assume, as the dissent asserts, that the trial judge erred in denying the motion for continuance, the matter need not be remanded for resentencing since it is not reasonably probable a different result would occur.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)   The probation officer who suggested the continuance to receive the Parents United report felt defendant was not eligible for probation.   In fact, the probation officer wrote, “There is a likelihood that if not imprisoned the defendant will be a danger to others ․ He has shown no remorse as evidenced by his statement concerning the instant offense.”

It becomes apparent the reason for the probation officer's recommendation for a continuance was to counter the favorable recommendation of Dr. Bryan, which the trial judge had considered.   This is evidenced in the following language from the report:  “[T]he examining psychiatrist concluded that rehabilitation is feasible and that the defendant did not present a threat of physical harm.   It should be noted, that the doctor was laboring under the lack of background information as there was none available at the time the defendant was examined.   He also labored under a misrepresentation on the part of the defendant who stated that he attends Parents United weekly and sees a therapist through that organization.   Members of Parents United report that the defendant does attend weekly but is totally devoid of participation.   He is currently repeating the orientation phase of the program due to a lack of progress during the first term.   He is not seeing a therapist through that organization.   These representatives showed extensive concern that the defendant had learned some of the buzz words but had demonstrated absolutely no commitment to the program.   They have scheduled extensive testing to determine the defendant's unconscious functioning as regards self and impulse control and the ability to relate to others.   Scheduled testing will include WAIS–R, MMPI, Rorschach and an extensive background history.   It is the writer's opinion these results will be invaluable to the court.”   Thus it appears the probation officer expected the test results were more likely to hurt defendant than help.   Accordingly, we conclude remand would be unnecessary even if the trial judge had erred in failing to allow time to consider the report.

II. The Inclusion of Prior Police Contacts In The Probation Report Was Not Prejudicial Error.

Defendant argues that inclusion in the probation report of his prior police contacts which resulted in neither arrest nor conviction was prejudicial and requires remand for resentencing.   We disagree.

 Defendant failed to object to the inclusion of his police contacts in the report at or prior to the sentencing hearing.   This failure to object constitutes a waiver of this argument on appeal.  (People v. Jarvis (1982) 135 Cal.App.3d 154, 158, 185 Cal.Rptr. 16;  People v. Lutz (1980) 109 Cal.App.3d 489, 496, 167 Cal.Rptr. 309.)   Defendant had ample opportunity to present witnesses and evidence to rebut any information in the report that he felt was erroneous or misleading.   He did not object to any contents of the report, including the information on prior police contacts and, thus, waived this argument.

Furthermore, defendant's argument is supported solely by People v. Calloway (1974) 37 Cal.App.3d 905, 112 Cal.Rptr. 745, which is distinguishable on its facts.   In Calloway, the probation report merely listed all of defendant's prior encounters with the police.   In our case, the probation report did not include such “rap sheet” information alone, but rather included substantial supporting factual information along with a detailed description of the two police contacts and the manner in which they were resolved.

Defendant erroneously alleges that the Calloway court held that a probation report can never include information regarding police contacts which did not culminate in arrests or convictions.  Calloway did not advance such a broad holding.   Rather, the case held that a probation report may not contain information on police contacts if defendant was neither convicted nor charged unless supporting factual information is also included.  (People v. Calloway, supra, 37 Cal.App.3d at 908, 112 Cal.Rptr. 745.)

The factual information supporting defendant's police contacts was derived from the records of the California Department of Justice, the San Mateo County Department of Social Services and the Daly City Police Department.   These records indicated that the first incident occurred in 1976.   At that time, defendant's three children were taken to the Daly City Police Department because of a report that defendant was molesting his older daughter.   The mother of the children knew that such molestation was going on for six years and, even more importantly, defendant admitted that he molested the girl.   For this offense, defendant requested psychiatric therapy.   This request was granted, defendant spent a year in therapy, and the prosecution of the offense was dismissed.

The second police contact occurred in 1979 when the younger daughter, the victim in this case, came to school with bruises on her back and eye.   The girl stated that defendant struck her with a belt.   When the police contacted defendant, he admitted to striking his daughter with his belt because she refused to eat dinner.   The police decided that the assault was not serious enough to charge defendant with any violation.

 A probation report that includes police contacts that were not acted upon is prejudicial if the report does not contain supporting factual information or the information is presented in a misleading manner.  (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 823, 177 Cal.Rptr. 627;  People v. Lutz, supra, 109 Cal.App.3d 489, 497, 167 Cal.Rptr. 309;  People v. Tobia (1979) 98 Cal.App.3d 157, 165;  People v. Taylor (1979) 92 Cal.App.3d 831, 833, 155 Cal.Rptr. 62.)   Here the probation report included such factual information and presented it in a clear and accurate fashion.

III. The Trial Court's Sentencing of Defendant to The Upper Base Term Was Correct

Defendant argues that the trial court abused its discretion by sentencing him to an aggravated prison term of eight years.   He contends that the trial judge, in sentencing defendant, failed to consider appropriate mitigating factors, and that his statement of reasons for the sentence is inadequate under Penal Code section 1170, subdivision (c).

California Penal Code section 1170, subdivision (b) states that, “[T]he court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.”

The probation report, pursuant to Judicial Council Rule section 421, enumerated the aggravating factors to be:  (1) that the acts inflicted on the child were done with a degree of callousness;  (2) that the victim was particularly vulnerable;  (3) that the defendant was in a position of leadership;  and, (4) that he involved a minor in the commission of the crime.   The probation report pursuant to Judicial Council Rule 423 listed the mitigating factors to be:  (1) that defendant had no prior record;  and, (2) that he voluntarily acknowledged wrongdoing at an early stage in the criminal proceedings.   The trial court correctly found that the aggravating factors in the case warranted the imposition of the upper base term.   He correctly stated on the record the reasons influencing his decision in accordance with Penal Code section 1170, subdivision (c).3

 Moreover, a trial court is not required to state its reasons for rejecting a mitigating factor.  (People v. Simon (1983) 144 Cal.App.3d 761, 766, 193 Cal.Rptr. 28;  People v. Lopez (1982) 131 Cal.App.3d 565, 574, 182 Cal.Rptr. 563;  People v. Burg (1981) 120 Cal.App.3d 304, 306, 174 Cal.Rptr. 491;  People v. Mendonsa (1982) 137 Cal.App.3d 888, 896, 187 Cal.Rptr. 363.)   Therefore, the trial court did not have to enunciate why it rejected the mitigating factors stated in the probation report.   Unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, including the mitigating circumstances, which are listed in the sentencing rules.  (People v. White (1981) 117 Cal.App.3d 270, 280, 72 Cal.Rptr. 612;  People v. Mendonsa, supra, 137 Cal.App.3d at 888, 896, 187 Cal.Rptr. 363.)

 Furthermore, the upper term is appropriate where the aggravating circumstances both qualitatively and quantitatively outweigh those in mitigation.  (People v. Simon, supra, 144 Cal.App.3d 761, 767, 193 Cal.Rptr. 28.)   That defendant has no prior convictions and that he acknowledged wrongdoing early on is outbalanced by the fact that defendant has been sexually molesting his twelve year old daughter for a long time, that he was forcing her into oral copulation every few days, that he was making her sleep in his bed every night, and that the victim was afraid that if she did not comply with defendant's demands that she orally copulate him, he would get angry or mean.   The seriousness and callousness of defendant's acts, and the potential and actual psychological damage to the child clearly outweigh the mitigating circumstances advanced by the defendant.

The judgment is affirmed.

As we all know, the voters recently added to the California Constitution a “Right to Truth-in-Evidence” provision (Cal. Const., art. I, § 28, subd. (d)) which guarantees that relevant evidence “shall not be excluded” in criminal proceedings such as sentencing hearings.1  What the voters failed to anticipate is that this court would approve a method of circumventing their command.   This simple prophylactic can be easily utilized where the sentencing judge has made up his mind on the proper sentence and does not want to be bothered having to sit through a presentation of evidence by either the prosecution or the defense.   All that is necessary to activate this little mechanism is to deny a timely motion for continuance that if granted would have allowed the prosecution or the defense to obtain relevant noncumulative testimony or other evidence.   Zappo!  By affixing a little glue to dusty boilerplate language having to do with the broad discretion of trial courts, the Court of Appeal will perfunctorily affirm, especially—as in the instant case—where the sentencing judge is candid enough to tell us that the only reason the motion is denied is that the court does not care what the testimony might show.

I respectfully dissent because such a holding is in my judgment an evisceration of the plain constitutional direction that “[e]xcept as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, ․”  (Cal. Const., art. I, § 28, subd. (d).)


The record reveals the following pertinent events:

Prior to sentencing, the court appointed Dr. Harry Bryan to examine defendant and determine whether he “presents a danger to the safety, health or welfare of others, and if he is amenable to psychiatric treatment” per Penal Code section 288.1.2  The report was filed with the court prior to the hearing.   Dr. Bryan found defendant was amenable to treatment, did not present a danger to the health, safety and welfare of others, “specifically his children,” and that rehabilitation was feasible.   Dr. Bryan also noted that defendant was in an “organized treatment program” with Parents United, was separated from his children and posed no threat of physical harm.

The sole recommendation made by the probation officer was:  “It is respectfully recommended that the matter be continued for approximately four weeks pending receipt of the results of the scheduled testing by Parents United.”   In the body of his report, the probation officer explained that “extensive testing” had been scheduled in order to “determine the defendant's unconscious functioning as regards self and impulse control and the ability to relate to others.   Scheduled testing will include WAIS–R, MMPI, Rorshach and an extensive background history.”   The officer concluded, “[i]t is the writer's opinion these results will be invaluable to the court.” (Emphasis added.)   No formal recommendation regarding sentencing was made.

Thus, at the time the matter came for sentencing, the trial court had written notice that a continuance was sought and the reasons therefor.   The court made evident that it understood those reasons.

The hearing began this way:  “[DEFENSE COUNSEL]:  Good morning, your Honor.   Joseph Allen appearing in [this] matter.   Mr. Jackson is personally present. [¶] I've discussed ․ our request for a continuance in this matter with Mr. Jackson, your Honor.   There will be no objection.  [¶] THE COURT:  Okay, I'm not going to continue it;  I'm going to proceed at this time.”

In case the casual reader is still looking for evidence of an exercise of discretion, reference must be made to the next portion of this extraordinary transcript.  “[DEFENSE COUNSEL]:  Your Honor, might I be heard prior to sentencing?  [¶] THE COURT:  Go ahead.  [¶] I don't care what Parents United say.   I've read Dr. Bryan's report.   This man is a vicious, cruel, heinous, obnoxious, bad person—I'm not going to use anymore adjectives—and he's going to prison.   It's simple as that.”


There is only one way to read the Right to Truth-in-Evidence provision:  once a sentencing hearing has begun, a trial judge has no power to exclude relevant evidence.3 Today's holding makes clear that a trial judge may exclude that same relevant evidence with impunity by denying the parties an opportunity to produce it, especially where that denial is premised on the judge's determination that he does not care what the evidence might show.4

Of course the result reached in the majority opinion is easy to swallow:  another felon goes to prison.   What may not digest so well is that its rationale will apply unmistakably to the situation in which the trial court has made up its mind to grant probation, and the prosecutor is seeking a continuance to call the victims to the stand. When the trial court denies the continuance (perhaps explaining:  I don't care what your victims say.   I've read the probation report.   This man is a misunderstood fellow.   I'm not going to use any more adjectives.   He's not going to prison ), citation to this case will uphold that exercise of discretion in denying the continuance. The Truth-in-Evidence provision of the California Constitution is mocked.5

For these reasons, I would vacate the sentence imposed and remand for a proper sentencing hearing at which the court must consider the report of Parents United in determining whether to grant or deny defendant's application for probation.


1.   Defendant further argues that he was prejudiced because had the Parents Anonymous report been submitted, it would have been a mitigating factor which could have resulted in a grant of probation.   This argument is unconvincing.Penal Code section 1203.066, subdivision (c) prohibits a court from granting probation unless all the requirements of the section are met.   The Code states that a defendant, statutorily ineligible for probation may receive probation if four specific factors are present:  (1) defendant is the victim's parent;  (2) imprisonment of defendant is not in the best interests of the child;  (3) rehabilitation of defendant is feasible in a recognized treatment program designed to deal with child molestation;  and (4) there is no threat of physical harm to the victim if defendant is not imprisoned.The first Code requirement is present.   Defendant is the father of the child victim.   The other three are arguably not met.   The facts indicate defendant has been molesting the victim for over a year, has shown no remorse, and in fact, blames his conduct on his daughter's needs.Finally, even if the trial court found that the facts fell within the statutory requirements, the court could still have imprisoned defendant.   (Pen.Code, § 1203.066, subd. (c)(4).)   In People v. Lucero (1984) 154 Cal.App.3d 245, 251, 201 Cal.Rptr. 99, the court under similar facts denied probation.   The facts upon which that court based its decision were:  Defendant's felonious conduct extended over a long period of time;  the victim was in a vulnerable position because of the family relationship;  and defendant's acts were apparently premeditated.   Similarly, the trial court in this case had before it sufficient aggravating factors upon which to deny probation and imprison defendant.   These aggravating factors were:  Defendant took advantage of an extremely vulnerable victim, planned the offense, showed no remorse and blamed his offense on his daughter's depression and desire for petting.

2.   The aggravating factors were that defendant sexually abused his own daughter, took advantage of an extremely vulnerable victim, planned the offense, showed no remorse, and blamed the offense on his daughter's depression and desire for petting.

3.   The trial judge's statement during imposition of sentence was as follows:  “Mr. Jackson, you're going to get the distinction of being one of the few cases where I've imposed the aggravated term.   It's based on the fact that you were in a position of leadership, the victim was particularly vulnerable, and the continued conduct with this victim.   Based upon those factors, it is the judgment of this court that your application for probation be denied.   You are committed to the Department of Corrections for the period of eight years.   You get one day credit.   You're in jail.”

1.   California Constitution, article I, section 28, subdivision (d) reads:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782, or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”

2.   Penal Code section 288.1 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, ․ as to the mental condition of that person.”

3.   Except for the power contained in Evidence Code sections 352, 782, 1103 and existing statutory rules of evidence relating to privilege or hearsay.  (Cal. Const., art. I, § 28, subd. (d).)

4.   This is not to suggest that trial judges no longer have discretion to deny a motion for a continuance where the delay will burden the court, witnesses or the parties and the anticipated benefit from the evidence is small.  (Cf. People v. Laursen (1972) 8 Cal.3d 192, 204, 104 Cal.Rptr. 425, 501 P.2d 1145;  People v. Turner (1984) 37 Cal.3d 302, 323, 208 Cal.Rptr. 196, 690 P.2d 669.)   However none of those conditions applies here.

5.   In this regard, it is worth noting that the majority has also posited that if it were constitutional error to refuse the continuance in order to obtain the evidence, that error was harmless. (Majority opn., ante, pp. 637–638.)   The rationale is special:  the evidence would harm rather than help the defendant's case.   This is so, the opinion suggests, even though the evidence has yet to be gathered or presented.   I am unable to join in this determination because I have not been issued a sufficient supply of clairvoyance.

SABRAW, Associate Justice.

ANDERSON, P.J., concurs.