PEOPLE v. BLODGETT

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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Appellant, v. James Jerome BLODGETT, Defendant and Respondent.

Crim. B 009084.

Decided: December 23, 1985

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Don Prigo and Ronald B. Davey, Deputy Public Defenders, for defendant and respondent. Ira Reiner, Dist. Atty., Donald J. Kaplan and Patrick D. Moran, Deputy Dist. Attys., for plaintiff and appellant.

The People appeal from the sentence of the Superior Court of Los Angeles County imposed on multiple counts of sex crimes in which it is claimed, as to Count V of the information, probation was granted contrary to Penal Code section 1203.065.  (All numerical statutory references herein are to the Pen. Code, unless otherwise indicated.)

PROCEDURAL BACKGROUND

In a refreshing rush to get to the point, the People overlook a statement or citation of authority for the procedural basis of this appeal.   Respondent James Jerome Blodgett (Blodgett) suggests Penal Code section 1238(a)(5) “․ [A]n order made after judgment, affecting the substantial right of the People ․” may provide a basis for appeal.   Blodgett cites People v. Orrante (1962) 201 Cal.App.2d 553, 558, 20 Cal.Rptr. 480 as case authority for the appealability of the grant of probation in this case.   Following the rule in Orrante, 201 Cal.App.2d at page 558, 20 Cal.Rptr. 480, will necessitate finding either the order granting probation was void on its face or that there was a subsequent denial of a People's motion to vacate by the court, if Penal Code section 1238(a)(6) is utilized as the basis of appeal.  (E.g. “The degree ․ of punishment [was incorrectly reduced].”)  We find such motion was made and rejected by the trial court.

The record before us contains a copy of the transcripts of the preliminary hearing, change of plea hearing, and probation and sentencing hearing.   We also have a copy of the six count information and the trial court's minute orders.

The only argument on appeal is directed to Count V of the information, and no discussion is required as to Counts I, II, III, IV 1 and VI other than to note they charged Blodgett with a variety of sex crimes against two minors—Margaret F., whose date of birth was November 27, 1969, and Denise R., whose date of birth was July 15, 1969.

Count V charged Blodgett with commission of a violation of Penal Code section 288a(c) against Margaret F. or “Christie”, as she is known and as she will be referred to throughout.   It was alleged in Count V that between November 1, 1981 and December 31, 1981, at a time when Christie was 12 years old, that Blodgett orally copulated her “․ [A]nd did accomplish said act against said victim's will by force, violence, duress, menace, and threat of immediate and unlawful bodily injury to said victim and to another.”

The trial court imposed a “time-served” jail sentence (93 days actual time, plus attributable credits) and thereupon placed Blodgett on five years' supervised probation.

The People contend that as to Count V Penal Code section 1203.065 (first enacted in 1979 and last amended in 1983) under the applicable 1983 version of that statute, it is provided that probation shall not be granted nor shall imposition of sentence be suspended for any person convicted “․ [O]f committing sodomy or oral copulation in violation of section 286 or 288a by force, violence, duress, menace or threat of great bodily harm.  ․”

The People contend that the basis of the court's error is exemplified by the following colloquy from the change of plea arraignment:

“THE PROSECUTOR:  Count V alleges violation of section 288a(c) participating in an act of oral copulation with Margaret (F) whose date of birth was 11/27/69, 12 years—I think this pleading makes him ineligible for probation, your Honor.

“THE COURT:  No.   It has to be especially alleged, the ineligibility section has to be especially pled and proved.

“THE PROSECUTOR:  It does?

“THE COURT:  Yes.

“THE PROSECUTOR:  All right.   And you accomplished this against the victim's will by force and violence, menace, duress and threats of immediate and unlawful bodily injury.   How do you plead?

“THE DEFENDANT:  No contest.

“THE PROSECUTOR:  Count VI alleges violation of section 242/243d, between the 1st of November, 1981, and the 31st of December, 1981, the use of force and violence upon the person of Margaret (F), resulting in the infliction of serious bodily injury on such person.   How do you plead?

“THE DEFENDANT:  No contest.”

The People urge now that on September 28, 1984, at the probation and sentencing hearing the deputy district attorney stated to the court that Penal Code section 1203.065 precluded a grant of probation on Count V and requested that the nolo contendere plea be withdrawn and a not guilty plea be reinstated so the People could then prosecute Blodgett on that single count.

The court had first noted at the plea change arraignment before Penal Code section 1203.065 could render a defendant ineligible for probation it had to be pleaded specifically, and the court at sentencing reiterated that position.

This appeal followed, and the People seek herein to have the nolo contendere plea to Count V set aside in order to reinstate the charge of violation of Penal Code section 288a(c) in Count V against Blodgett.

THE FACTS

Apparently just before Christie's 12th birthday, while she was at Blodgett's house in La Puente, she was importuned by Blodgett to consent to intercourse, which she refused, until he held her down and tied her to a bed with socks, placed baby oil on her vagina, and then had intercourse with her before orally copulating her following intercourse.   According to Christie every night after that they had intercourse until Blodgett “went away for a while” (on an unspecified C.Y.A. commitment).

Upon his return following the C.Y.A. commitment, apparently in January 1984, Blodgett re-contacted Christie and “over her protests” resumed having intercourse with her.   Christie admitted Blodgett made no threats after his return but once, when she was age 14, Blodgett insisted she consent to intercourse with him in his room with two other friends of his present;  “two guys named Kelly and Shawn.”   She said no, but stated Blodgett made her acquiesce to his demands on that occasion.

Christie stated Blodgett threatened her that he would get back at her if she talked about what they did or if she ever tried to press charges against him for “statutorial [sic] rape.”

Christie admitted her trysts with Blodgett sometimes occurred at his home (at a time when his mother and sister were also in the house) and sometimes at her house when there was no one else home.

Between August and October 1982, Christie “lived at Blodgett's house” against her mother's consent but with her mother's knowledge.   Christie stated Blodgett's mother consented to this arrangement, however.

In describing her first sexual encounter with Blodgett Christie admitted she “kind of” let Blodgett tie her down, and that on the four or five later occasions when he again tied her down she agreed to it.   She stated in the 1981–82 time period she was “in love” with Blodgett and that she still was in love with him.

Christie also stated after Blodgett's return from C.Y.A. incarceration she would sneak out of her house at night to go to Blodgett's house and would enter through the door when no one else was home, or through Blodgett's bedroom window if his family members were there.   Some incident occurred in May of 1984 at Blodgett's house which resulted in Christie's being jailed, but whatever the tantalizing aspects of that incident may have been, further inquiry was ruled irrelevant at the preliminary hearing.

Christie stated there was “bad blood” between Denise R., the other victim, and herself because Blodgett started seeing Denise after his C.Y.A. release and Christie perceived herself as having been jilted.

When the charges against Blodgett were being investigated, Denise was questioned by the police, and admitted to the investigators Blodgett had forced her to have intercourse, but on the witness stand at the preliminary hearing, she denied she had been intimate with Blodgett, and conceded she told the investigators what she thought they wanted to hear and not “what the truth really was.”

After waiving his Miranda rights, when asked by the investigators before trial why, at age 19, he consorted with girls the ages of Christie and Denise, Blodgett was reported as having said “the younger the better [and that] he could do hard time” (for child molestation) since he “had done it before.”

ISSUE TO BE DETERMINED

Does Penal Code section 1203.065 preclude a grant of probation on conviction on a charge proscribed therein without the accusatory pleading specifically setting forth that the statute itself prohibits a grant of probation?   In other words, must section 1203.065 be “pleaded and proved” like an enhancement before a court is deprived of the power to grant probation on any offense included in section 1203.065.

DISCUSSION

1. No Plead and Prove Requirement re section 1203.065

 In order to make some semblance of sense of the arguments of counsel, a tedious little detour must first be made through Penal Code sections 1203.045 through and including 1203.095 to examine the dates of passage of those statutes.   The court asserted a pattern in such statutes exists which requires the People allege in the accusatory pleading any fact(s) which would render a defendant ineligible for a grant of probation, and that as to section 1203.065 there must have been an oversight or negligent omission of that requirement on the Legislature's part.   The cited statutes are those in the Penal Code which regulate public offenses which preclude or limit grants of probation or suspension of prison sentences.

In the following quick tabulation, the Penal Code section is identified, its original year of passage is given, and the subsection of the statute which requires express statement of facts in the accusatory pleading is noted:

Only 3 of the 11 statutes referred to above, do not have a requirement that “special facts” be pleaded.  Section 1203.065 is the statute before the court in this case.   The other two statutes which omit a “plead and prove” requirement are 1203.095 which deals with the use of firearms and firing into inhabited dwellings and section 1203.045, passed in 1983, which restricts grants of probation in theft cases where $100,000 or more has been stolen to “unusual circumstances.”   Five of the statutes passed with a “plead and prove” requirement before section 1203.065 was passed in 1979;  one statute with such a requirement was passed the same year, and two more were passed in subsequent years.   Section 1203.095 was passed in 1982 without a “plead and prove” requirement subsequent to the passage of 1203.065 in 1979.   Likewise, section 1203.045 (re: $100,000 thefts) was passed in 1983 and has no plead and prove requirement, although if probation is granted, a special statement of the reasons for the granting probation must be put on the record by the judge imposing sentence.

It would seem the argument there was a legislative oversight in omitting a “plead and prove” requirement in section 1203.065, like Procrustes' bed, must be artificially stretched to include sections 1203.095 and 1203.045 as well, since both those sections were passed after section 1203.065, and well after the Legislature started inclusion of “plead and prove” requirements beginning apparently with passage in 1975 of sections 1203.06 and 1203.07.

We have made no further study or inquiry of the several amendments to a number of the cited sections to determine if there was a glut of amendments in a single legislative session or two which added the “plead and prove” requirements en masse.   Passage of 1203.045 and 1203.095 subsequent to the 1979 passage of 1203.065 would indicate to us, in any event, that there must be a presumed lack of legislative intent to lock-step all the cited Penal Code sections into a single “plead and prove” mode.

It was probably an innocent oversight on the trial court's part to lump section 1203.065 into the predominant “plead and prove” majority of the above noted statutes.   We readily acknowledge in reviewing such sections there is a clear legislative thrust in the majority of them to require pleading and proving facts which preclude grants of probation.   But we note an equally respectable minority of those statutes must have intentionally excluded such plead and prove requirements.   We also note in passing there seems to be a more than incidental parallel with the subject matter concerns of 1203.065 (sex crimes) with sections 12022.8 and 1203.045 ($100,000 thefts) and 12022.6(b), as well as 1203.095 (discharging weapons) and section 12022.5.

Because separate parallel enhancements must be specifically pleaded, perhaps the Legislature properly felt pleading the enhancements supplied all the accusatory notice necessary to a defendant, and then decided that by precluding or making probation difficult to obtain in the parallel sentencing statutes, the likelihood of enhanced no-probation sentences for those more serious crimes would be the likely result.   While this may only be a subtle speculation on our part, there is a certain consistency and appeal to the logic of it.

As to the actual import of section 1203.065, since its passage in 1979 we note only a half dozen or so instances where appellate courts have dealt with the statute.   The cases do not deal exhaustively with the statute, but seem, on balance to hold its effect is mandatory in precluding a grant of probation.

People v. Navarro (1981) 126 Cal.App.3d 785, 179 Cal.Rptr. 118 is the case with the lengthiest discussion of 1203.065.   The Navarro court, in a forcible rape case, stated that in denial of probation:  “․ [W]e are constrained to do so by the manifest statutory purpose of denying probation to persons convicted of completed sex crimes [as opposed to attempted sex crimes—a significant issue in Navarro] specified in subdivision (a) of section 1203.065 and the absolutely plain, clear mandate of that subdivision that ‘[n]otwithstanding any other provision of law, probation shall not be granted.”  (Original emphasis.)

People v. Baker (1984) 35 Cal.3d 663, 200 Cal.Rptr. 293, 677 P.2d 219, notes in footnote 7 (35 Cal.3d at p. 670, 200 Cal.Rptr. 293, 677 P.2d 219), the 1979–80 and 1980–81 legislative sessions enacted sweeping changes in laws affecting sex crimes and the changes “have triggered some of the longest prison sentences ever imposed.”   That footnote only acknowledges sections 1203.065 and 1203.066 placed limitations on probation and suspended sentences.

In People v. Superior Court (Martin) (1982) 132 Cal.App.3d 658, 183 Cal.Rptr. 563, in commenting upon the abrogation of the mentally disordered sex offender program, it was noted:  “[T]he Legislature [concurrently] enacted legislation which, for certain specified sex offenses provided increased mandatory prison terms (Pen. Code, §§ 288, 1364, 1203.065, 1203.066) ․”  (Superior Court (Martin) ante, 132 Cal.App.3d at p. 661, 183 Cal.Rptr. 563.)

People v. Hetherington (1984) 154 Cal.App.3d 1132, at p. 138, 201 Cal.Rptr. 756, states section 1203.065 “restricted ․ the availability of probation.”   The Hetherington court also sagaciously notes in construing Penal Code section 667.5 that the term “violent felonies” is not restricted to physical “violence, injury, or bodily harm” but encompasses sex crime felonies which engender extraordinary psychological or emotional harm, citing People v. Caudillo (1978) 21 Cal.3d 562, 582, 146 Cal.Rptr. 859, 580 P.2d 274.  (Hetherington, ante, 154 Cal.App.3d at p. 1139–40, 201 Cal.Rptr. 756.)

Thus, in Christie's case even if violent and palpable physical abuse is absent, the crimes committed against her would be no less “violent crimes” if the perpetration of those crimes against her resulted in psychological or emotional harm.

It is difficult not to sound pontifical, but children should neither be propelled or compelled into sexual precocity at a too early age.   Society does not excoriate pre-pubescent children who “play doctor” but we enforce a special category of punishment to revile so called “dirty old men” who would intrude with base motives into otherwise exploratory children's sex play.   There is a legal spectrum or continuum drawn between tolerable childish naughtiness and intolerable adult nastiness, and the cut-off point is that if a child is under 14 and a defendant is 10 or more years older than the defiled child, then oral copulation becomes felonious and other illicit sexual arousal of a child under 14 is likewise a felony.  (Pen. Code, §§ 288(a), 288a.)

The apparent willingness or even eagerness of Christie to pursue her liason with Blodgett is of course immaterial, and the law prudently withholds from her the ability to give legal consent to the process of corrupting her own innocence.  (People v. Wrigley (1968) 69 Cal.2d 149, 70 Cal.Rptr. 116, 443 P.2d 580 [11 yr. old child];  People v. Ray (1960) 187 Cal.App.2d 182, 9 Cal.Rptr. 678 [12 yr. old child];  People v. Piccionelli (1959) 175 Cal.App.2d 391, 346 P.2d 542;  People v. Clark (1953) 117 Cal.App.2d 134, 255 P.2d 79.)

At 19 Blodgett, of course, was not 10 years the senior of Christie, who was 11 when their course of sexual activity commenced.   The point is that however ingenuous or experienced Christie may have in fact been at nearly 12 years of age, but for the persistence of Blodgett she may have been able to have ripened to sexual maturity at her own pace, without the felonious intrusions on her innocence made by Blodgett.   On the other hand, the mental image of a “dirty old man” seldom includes anyone who is a mere 19 years of age.

We are satisfied, in summary, section 1203.065(a) makes it independently mandatory that probation be denied upon a conviction suffered for any offense proscribed in that subsection, and that section 1203.065 is one of three sentencing sections noted that does not require the charging accusatory pleading to contain a pleading of facts giving rise to a basis for denial of probation.   We are just as satisfied that the People will have a monumental job cut out for them, as the trial court no doubt saw it, to prove under Count V that “force, violence, duress, menace, or threat of great bodily harm” was ever used by Blodgett in his sexual subjugation of Christie.

2. Probation Allowable under Section 1203.065(b)

 However, in section 1203.065(b) “․ [I]n unusual cases where the interests of justice would be served if a person is granted probation ․,” a device certainly exists within the ambit of section 1203.065 itself to determine whether the interests of justice are “best served” by probation in this case.   We have reviewed the trial court's remarks at the sentencing hearing and conclude with the trial court, on balance, that the guilty findings on Blodgett's nolo contendere pleas to Counts I, II, III, V and VI are warranted, and the judgment is affirmed, accordingly.

From the fact Christie “kind of” assented to being tied up for her defloration and thereafter engaged in a three or four year course of sexual caprice with Blodgett (and even lived with him at his home for 3 mos.) demonstrates on one hand, a lamentable lack of parental supervision or guidance, but on the other hand, as the trial court no doubt saw it, an “unusual case” in which, ruefully, “the interests of justice” would better be served by granting probation.   The trial court reached a permissible conclusion by the wrong alternative course in section 1203.065.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   When Blodgett's guilty plea was taken, Count IV, a sex crime against Denise R. was dismissed.

SUTTON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

KLEIN, P.J., and DANIELSON, J., concur.