P. v. Hall

Filed 12/1/05 P. v. Hall CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BENNETT HALL, Defendant and Appellant.

A108584 (Marin County Super. Ct. No. SC134446A)

Defendant Michael Bennett Hall pleaded guilty to sexual battery and was sentenced to the middle term of three years in state prison. He contends on appeal that the trial court abused its discretion in declining to grant him probation. We disagree, and affirm defendant’s sentence.

I. BACKGROUND

Defendant was charged with two counts of committing lewd acts upon a child of 14 or 15 years old (Pen. Code, § 288, subd. (c)(1)) and one count of sexual battery by restraint (Pen. Code, § 243.4, subd. (a)).

Pursuant to a negotiated disposition, defendant pleaded guilty to the sexual battery count and entered Harvey waivers (People v. Harvey (1979) 25 Cal.3d 754) permitting the court to consider the dismissed counts in sentencing him. On October 20, 2004, the trial court denied defendant’s request for probation with a county jail condition, and sentenced him to three years in state prison, the middle-term sentence for his sexual battery offense. Defendant timely appealed from his sentence.

A. Facts Regarding Defendant’s Offenses

The following is a summary of the underlying facts as set forth in the probation officer’s presentence report:

In December 2003, victim Sam M. began exhibiting signs of stress. He disclosed to his mother that he was overwhelmed with high school finals and was uncomfortable with defendant, a family friend. At his mother’s suggestion, Sam began seeing a therapist. In February 2004, the therapist contacted the police to report that Sam had informed him that defendant had touched Sam inappropriately during 2002, when Sam was 15 years old.

Sam, 17 years old at the time he was interviewed, told police that he had known defendant since he was a toddler. He stated that approximately two years earlier he began going swimming with defendant, sometimes with his siblings present and other times alone with defendant. Sam told the police, “ ‘[W]henever we swam, he [defendant] was always weird when I changed my clothes and I would be naked for a few seconds. He would look at me. And that was weird.’ ” At one point, defendant made a comment to Sam that “ ‘when he was a kid you would always change your clothes in high school and it was no big deal. “You use[d] to shower naked with your classmates.” ’ ” Sam stated that he ignored defendant’s comments, but that they did talk about sexual things.

Sam told police that on a Friday in January 2002, he and defendant, who was then 65 years old, were sitting in the Jacuzzi at the Mill Valley Recreation Center. Defendant whispered into Sam’s ear, “ ‘When you get a boner tell me.’ ” In the past, defendant had told Sam that he enjoyed letting the water jets brush against his crotch. A moment later, Sam told defendant that he had an erection. Defendant responded, “ ‘[L]et me feel.’ ” He slid his hand into Sam’s shorts and held Sam’s penis, and told Sam to feel defendant’s erect penis. Sam complied, but he did not like the situation. Sam told police that defendant “ ‘left the situation open to progress’ ” in that he had asked on later swimming trips if Sam had an erection. Sam would always tell defendant that he did not. On the advice of his therapist, Sam stopped swimming with defendant approximately one month prior to the police interview.

Police interviewed Sam’s mother. Sam had told her that defendant once asked Sam to try on a condom in front of him, which Sam thought was weird. Sam’s mother also told police to speak to Sam’s father, David M., because when David was in high school he had had a similar “ ‘odd contact’ ” with defendant. According to Sam’s mother, David would not talk to her about the incident but only told her that defendant had touched his genitals.

When the police interviewed David, he stated that defendant and David’s mother had once worked together, and that he had known defendant for approximately 30 years. David stated that he moved to the Bay Area in 1984 and that defendant had moved to the Bay Area in 1983. David told police that defendant was an avid swimmer, had been using public pools for years, and enjoyed taking David’s children to public pools. David also told the officer that when David was between 15 and 17 years old he had touched defendant’s private parts a few times. David would not elaborate on this any further.[1]

Sam agreed to make a pretext telephone call to defendant. During the call defendant never denied touching Sam. He was very apologetic, but he insisted that he wanted to talk about it with Sam in person rather than over the telephone. Sam told defendant that he wanted to talk about it then on the telephone or Sam would have to tell his family. When Sam asked defendant, “ ‘Why would you touch me like that?,’ ” defendant stated, “ ‘Well, the only real answer is curiosity. One could ask, why would I be curious or take curiosity to that point of touching. For me, I guess, to be completely honest touching is, it’s like in the popular press and in politics and everything for the last, I don’t know, last 10 years maybe less. It’s like touching is absolute barrier [sic] and if you cross that, you know, they’re really something legally and morally wrong; and for me I’ve never felt that. I mean touch is just an extension of sight or sound or other senses. It’s just a way of confirming friendship or closeness to somebody. That particular kind of private touching is clearly um kind of assuming a really intimate level a friendship that could land a person in jail now-a-days, but sort of seemed OK with you.’ ” Defendant denied that he had done anything like this before. When Sam told defendant that he was thinking of telling his father about the touching, defendant tried to talk him out of it.

Following the call, defendant sent two e-mails to Sam pleading with Sam to call him to follow up on their previous telephone conversation. Sam made a second pretext call to defendant in which defendant told Sam that public pools and showers had an erotic effect on him that he could not control, and that this went back to when he was a child. He told Sam that he would get an erection at public pool showers and stated that he needed therapy but felt that he could “ ‘self-therapy.’ ”

B. Facts Relevant to Sentencing

At the probation officer’s request, defendant was psychologically evaluated by Sharper Future following his guilty plea. Charles A. Flinton, a Ph.D. psychologist, conducted approximately 8 hours of clinical interviews with defendant and administered a series of diagnostic tests. Dr. Flinton reported that defendant “appears to be very motivated to participate in treatment. His insight is excellent for someone beginning treatment, although he has a tendency to present himself as harmless and generally self-effacing despite having committed such invasive acts.” Defendant “expressed remorse for the harm his actions might have caused his victim and seemed genuinely interested in taking steps to prevent future misbehavior.”

Defendant reported to Dr. Flinton that he had engaged in 15 acts of child molestation with five victims. He admitted to two incidents of rubbing against a woman’s buttocks approximately 10 years earlier, with the second incident occurring after he had fantasized about the activity and planned its execution. He also described other sexual behaviors including mutual masturbation with minor boys, and watching boys between the ages of 15 and 17 at a nude swimming hole. These behaviors occurred when he was between the ages of 30 and 65. Defendant had also been accused of watching young boys in a public swimming pool and showering in the open showers with an erection.

Regarding defendant’s likelihood of reoffending, Dr. Flinton concluded as follows: “Although he is at moderate risk of re-offense according to actuarial measures, his willingness [to] take responsibility for his actions and to explore the impact of his offense on his victim may decrease risk somewhat. Further, he withstands very blunt confrontations about his motivations and reasons for offending and clearly spends time between sessions reviewing the material that was covered. These factors are indicators of potential therapeutic success. However, he has reportedly been offending sexually against minors for at least 35 years with no real consequences. This behavior is therefore quite entrenched and intensive sexual offender treatment is strongly recommended. Any treatment program should also utilize sexual offender treatment polygraph testing to assure that [defendant] is being honest in treatment.” (Italics and underscoring omitted.)

The probation officer recommended that the trial court deny probation and impose the midterm sentence of three years in state prison for defendant’s sexual battery offense. Although this was defendant’s first criminal conviction, and the charge to which he pleaded guilty was not particularly serious in the “grand scheme” of the criminal justice system, the probation officer found these factors to be more than offset by the fact that defendant was a “lifelong sex offender” who had repeated with Sam the same manipulative conduct he had engaged in with Sam’s father 30 years earlier of attempting to “ ‘groom’ ” his teenage victim to engage in inappropriate sexual conduct with him. In both instances, defendant’s conduct had psychologically destructive consequences for the victim and the victim’s family.[2]

In analyzing specifically whether to recommend probation, the report identified the following factors weighing against probation: (1) compared to other instances of sexual battery, the crime in this case was more serious because the victim was a minor; (2) the victim was particularly vulnerable in that he looked upon the defendant as a lifelong trusted family friend; (3) the defendant inflicted significant emotional injury on the victim and the victim’s family for which they required ongoing therapy; (4) the defendant was not a passive participant in the crime, but actively “groomed” the victim for his sexual gratification; (5) the defendant demonstrated criminal sophistication in the manner in which he obtained access to and groomed the victim; (6) defendant took advantage of his position of trust as a longtime family friend to commit the crime; (7) although defendant had no prior record, he had admitted sexually abusing numerous children throughout his life; and (8) defendant was likely to pose a continuing threat to the community if not imprisoned. (See Cal. Rules of Court, rule 4.414(a)(1), (3), (4), (6), (8), (9) & (b)(1), (8).)

The probation report noted in defendant’s favor that: (1) he had stated a desire and willingness to comply with the terms of probation; (2) his ability to comply with such terms was indicated by the fact that he is a bright, mature, and educated adult with community ties and a military service history; (3) imprisonment would have a severe negative effect on defendant and his family because he is a frail, elderly man with little experience within the criminal justice system and his wife is physically infirm and requires assistance with daily living tasks; and (4) the defendant had expressed remorse for his action. (See Cal. Rules of Court, rule 4.414(b)(3), (4), (5), (7).)

II. DISCUSSION

Defendant contends that the trial court’s decision to impose a state prison sentence on him, in lieu of granting probation, was arbitrary and capricious. According to defendant, the trial court completely disregarded Dr. Flinton’s opinion that he would benefit from treatment and failed to adequately consider whether supervised probation was the best means of protecting the public in view of defendant’s amenability to treatment.

At the sentencing hearing, defense counsel argued that defendant would pose a greater threat to the public if he was paroled untreated into the community after serving a prison sentence than if he was released after a county jail term under a regimen of strictly supervised probation and intensive therapy. Counsel proposed that the public interest would be best served if the court conditioned defendant’s probation on one year of county jail time, intensive therapy, and strict controls on his contact with children. Although defendant would be released from county jail 10 months earlier than he would be from a three-year state prison term, he would able to begin therapy earlier, and would remain under tight probationary controls for three and one-half years after his state prison release date.

The trial court explained its reasons for rejecting probation in favor of a state prison sentence as follows: “Mr. Hall, you’re 67 years old right now and this is your first criminal conviction. [¶] I’ve read a great deal about your history with the victim’s family, and it is one of the most chilling and pathological stories that I’ve ever had the misfortune to deal with. [¶] It’s sad that you were not made to account for your predatory behavior a long time ago. But that said, you are here for sentencing for what you did to [Sam] and not for what you did to his father, and I’m entirely aware of that. [¶] This Court received a report from a Ph.D. psychologist addressing, among other things, your potential for positive response to treatment and the threat you pose to people in the community, particularly to children in the community. And I think in a situation like this, this Court’s primary responsibility is to the safety of members of the community. [¶] Indeed, while I was hearing these arguments, I opened up my book to [California] Rule[s] of Court[, rule] 4.410, which is called general objectives in sentencing. Number one is protecting society. Punishing the defendant’s number two. And then there are other considerations, such as encouraging the defendant to lead a law abiding life, deterring others, preventing the defendant from committing crimes by isolating him for a certain period of time and so forth. [¶] Number one is protecting society. And I agree with that. And I take it very, very seriously. And especially with a serious crime like this, I have to really look closely at it. [¶] And that said, nothing in the materials that I’ve reviewed gives me any confidence that you have the potential for positive response to treatment and that you don’t pose a threat to members of our community. You are a danger to children in our community. [¶] . . . [¶] Therefore, probation is denied. I am going to impose . . . the sentence recommended by Probation.”

“ ‘A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.] A court abuses its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.] We will not interfere with the trial court’s exercise of discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’ ” (People v. Downey (2000) 82 Cal.App.4th 899, 909–910.) The burden is on the party attacking the sentencing decision to show that it was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.) A sentencing decision will not be reversed merely because reasonable people might disagree about it. (Ibid.) “Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.” (People v. Welch (1993) 5 Cal.4th 228, 233.)

Defendant fails to meet his burden of showing that the trial court’s denial of probation was irrational or arbitrary. Contrary to defendant’s portrayal, Dr. Flinton’s report did not offer unqualified support for his probation request. Its conclusions were limited, tentative, and hedged with caveats and qualifications. Even if fully credited by the trial court, the report fell significantly short of establishing that defendant’s probation would pose a “minimal risk to public safety and promote[] rehabilitation.”

Dr. Flinton did not find defendant’s risk of re-offense to be “minimal.” He opined that defendant’s risk would be considered “moderate” according to objective measures, and “may” be decreased “somewhat” by defendant’s apparent willingness to take responsibility for his actions and to explore their impact on his victim. At the same time, Dr. Flinton explicitly recognized that defendant’s pattern of committing sexual offenses against minors was “quite entrenched” and that he “may not be able to control his impulses despite the consequences to himself or others” Thus, even if one accepts the premise that defendant’s postarrest acceptance of responsibility “somewhat” improved the odds that he could learn to control his behavior, no fair reading of Dr. Flinton’s evaluation suggests that he believed defendant posed a “minimal risk to public safety” if granted probation.

Moreover, the premise that defendant accepted full responsibility for his actions was itself open to question. Dr. Flinton found that defendant did not give an entirely honest account of himself. He minimized the degree of planning and grooming that preceded the molestation of his victim, and falsely presented himself as harmless and self-effacing despite the invasive nature of his acts. While defendant “appeared” to have responded candidly to “the majority of questions asked of him,” Dr. Flinton could not discount the possibility that he was withholding information, especially after defendant was reminded that Dr. Flinton was sharing information with the probation department. Significantly, defendant denied to Dr. Flinton that he had had any sexual relationship with Sam’s father. Dr. Flinton had sufficient doubt about defendant’s candor that he proposed the use of polygraph testing in any treatment program for defendant “to assure that [he] is being honest in treatment.”

Finally, Dr. Flinton made no assessment as to whether a state prison sentence would make defendant more or less amenable to future treatment. If defendant is sincere in his desire to do no more harm, and has the intellectual capacity and insight to benefit from therapy, nothing prevents him from seeking out and succeeding in sexual offender treatment upon his release from prison. If anything, the deterrent effect of having served a state prison term should strengthen rather than weaken defendant’s motivation to gain control over his impulses.

Although reasonable people might draw different conclusions from Dr. Flinton’s findings, it was not irrational for the trial court to conclude that “nothing in the materials . . . gives [the court] any confidence that [defendant has] the potential for positive response to treatment and [does not] pose a threat to members of our community.” On the record before it, the trial court did not abuse its discretion in deciding that society was better protected by sentencing defendant to state prison than by offering him probation.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Stein, Acting P.J.

_________________________

Swager, J.

Courtesy of California Legal Resource Directory, a source for providers and consumers of legal resources. Because we know legal.

Escondido Lawyers are available and standing by to help you.

[1] A few months later, David submitted a written “Family Impact Statement” that described much more extensive sexual contact between him and defendant when he was a teenager than he discussed in his initial interview with police.

[2] Defendant denied that he had molested Sam’s father in the past. However, the probation report included considerable evidence contradicting defendant, including detailed written statements by David and David’s mother, as well as a 1977 letter defendant wrote to David (later found by David’s mother) alluding to inappropriate sexual contact between them.