THE PEOPLE v. JAMES SCHAFFER (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS AND PROCEDURAL HISTORY

This is an appeal from a judgment imposing a prison sentence after defendant's plea of no contest to one count of violation of Penal Code section 288, subdivision (a), lewd or lascivious acts with a child under 14 years of age.   We affirm the judgment.

Defendant James Schaffer owned horses.   Young girls, ages 10 to early teens, wanted to learn to ride the horses.   They were left alone with defendant for instruction in the riding and care of horses.   He used that opportunity to engage in increasing sexual contact with them.

By information filed July 11, 2008, defendant was charged with three counts of violation of Penal Code section 288, subdivision (a).   Count 1 alleged that between April 1, 2000 and November 30, 2000, he committed a lewd or lascivious act on E.D. Count 2 alleged that between May 1, 2001 and September 30, 2002, defendant committed a lewd or lascivious act on T.B. Count 3 alleged that between January 1, 2004 and November 1, 2004, he committed a lewd or lascivious act on M.H.

At the time of trial, defendant moved in limine to prohibit the prosecutor from introducing evidence that he had engaged in similar conduct with two of his nieces from 1978 through 1983.   The motion was denied.   Shortly thereafter, defendant entered into a plea agreement, which he characterized as follows in his handwritten entry on an advisement of rights form:  “Open plea [of no contest to count one], no stipulated sentence. 8 year maximum.  [Penal code section ] 290 registration.   Released on bail pending sentencing, Harvey waiver as to dismissed counts.” ¹

At the sentencing hearing on April 16, 2010, the trial court denied probation and sentenced defendant to the upper term of eight years in prison and imposed other terms, fines, and fees.

Defendant contends on appeal that the trial court abused its discretion by denying probation and by imposing the upper term of imprisonment.   We find it did not and affirm the judgment.

DISCUSSION

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation․”  (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.)   Public safety, the nature of the offense, and the interests of justice are primary considerations in the decision to grant or deny probation.  (See Pen.Code, § 1202.7.) California Rules of Court, rule 4.414 sets forth considerations relating to the crime and to the defendant as criteria affecting the decision to grant or deny probation.²

Defendant argues that several of the enumerated criteria concerning the crime militated in favor of a grant of probation.   He contends he did not take advantage of a position of trust to commit the crimes.  (Rule 4.414(a)(9).)   He also contends the victims were not unusually vulnerable and the crimes were not particularly serious, when compared to other cases of lewd or lascivious acts on a child under 14 years of age.  (See rules 4.414(a)(1) & (3).)

It is apparent from the record that defendant encouraged and convinced the girls' parents to leave the girls alone in his care for the purpose of instruction in horse riding and care.   In doing so, he put himself in a position of trust, which he then abused.   The girls themselves were vulnerable, not only because of their age in relationship to defendant, a grown man, but also because of his enticement to them:  Defendant played upon the girls' infatuation with horses to gain access to children who were otherwise strangers to him.   Finally, defendant's digital penetration of the third victim was not insignificant.   There was substantial evidence from which the trial court could conclude these crimes involved planning and a certain level of sophistication, with defendant gradually gaining the trust of each victim and then exposing each to increasingly serious misconduct.  (See rule 4.414(a)(8).)   We conclude there was nothing about the crime for which defendant was being sentenced, especially when viewed in the light of the two dismissed counts, that militated in favor of a grant of probation.

As to the probation factors relating to defendant (see rule 4.414(b)), defendant states the “probation officer's report indicated a low recidivism risk.”  (See rule 4.414(b)(8).)   He also states he “[a]ccepted [r]esponsibility [e]arly,” (boldface omitted) had strong community ties, and had a good record of military service, all of which are factors favoring probation under rule 4.414(b)(4).   Finally, he notes he had no prior record of criminal convictions.  (See rule 4.414(b)(1).)

While certain of these factors are true in at least a formal sense, defendant's circumstances provide an abundant basis for the trial court to have substantially discounted the factors.   For example, the probation report's “low recidivism risk” was based on a very simplified checklist that indicated that older (over the age of 25), non-violent offenders who did not prey upon strangers were at a lower risk of recidivism.   Yet the undisputed facts in this case were that defendant, a non-violent offender in his 50's at the time of the crimes, had indeed engaged in serial molestation of young children.   While defendant had no prior convictions, it appears from the record that he had engaged in similar crimes over a long period of years.   And while defendant did plead no contest to one count prior to trial, he denied his culpability all the way through the sentencing hearing, contending the victims had lied about him and had misinterpreted his innocent displays of affection.³  Thus, the trial court had ample evidence from which it could have concluded that defendant was an inappropriate candidate for probation and was, in fact, a risk to public safety if not incarcerated.   The trial court did not abuse its discretion in denying probation.

Defendant also contends the same factors favoring probation constitute mitigating factors for purposes of selection of the term of imprisonment.   Selection from the three possible terms of imprisonment established by law for the violation of Penal Code section 288, subdivision (a) (namely, three, six, or eight years in prison) is committed to the trial court's discretion.   (Rule 4.420(b).)  Circumstances in aggravation and mitigation, including factors relating to the offense and to the defendant, are set forth in rules 4.421 and 4.423.

As set forth above, we disagree with defendant's contention that he did not take advantage of a position of trust in committing the crimes.   In addition, while defendant was convicted of only one count because of the plea bargain, the trial court was permitted to consider the existence of additional victims over a rather extended period of time, thereby establishing criminal planning and sophistication that clearly merited imposition of the upper term of imprisonment.   The trial court did not abuse its discretion in imposing that sentence.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. Pursuant to a “Harvey waiver,” a defendant “may agree as part of a plea bargain that the trial court may consider at sentencing the facts of unrelated dismissed or uncharged crimes.”  (People v. Calhoun (2007) 40 Cal.4th 398, 407, fn. 5;  see People v. Harvey (1979) 25 Cal.3d 754, 757.).  FN1. Pursuant to a “Harvey waiver,” a defendant “may agree as part of a plea bargain that the trial court may consider at sentencing the facts of unrelated dismissed or uncharged crimes.”  (People v. Calhoun (2007) 40 Cal.4th 398, 407, fn. 5;  see People v. Harvey (1979) 25 Cal.3d 754, 757.)

FN2. All further references to rules are to the California Rules of Court..  FN2. All further references to rules are to the California Rules of Court.

FN3. In defendant's written statement to the probation officer, he states:  “I did not commit these crimes.”.  FN3. In defendant's written statement to the probation officer, he states:  “I did not commit these crimes.”

THE COURT