 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Alfaro6/6/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Jose Carlos Alfaro appeals from the judgment entered following his conviction by jury of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)). He was resentenced to prison for six years.
In this case, we hold the trial court properly refused to grant probation to appellant.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that at about 9:00 a.m. on Sunday, June 5, 1999, Amaris A., who was 11 years old, was watching cartoons in the living room of her godmother's large house in Gardena. Appellant was the godmother's brother, and lived in the garage in back of the house. Amaris A.'s godbrother watched television for awhile with Amaris A. but later went to his room, leaving her alone in the living room. There were three bedrooms in the house, and all of their doors were closed. Amaris A. testified the bedrooms were "around the living room" but "there is like a wall and a door and then there is the rooms." (Sic.)
Amaris A. had been alone in the living room for about five minutes when appellant entered. Amaris A. thought the back door had been open; she did not hear anyone knock on the door. Appellant sat down near Amaris A., and later pulled her seat towards him. Appellant "sort of whisper " to Amaris A., and later rubbed his hand against Amaris A.'s vagina through her clothes. Appellant then kissed her, trying to put his tongue in her mouth. Amaris A. went to her godsister's room and made a lot of noise to awaken her. Appellant presented no defense evidence.
CONTENTION
Appellant contends " he trial court erred and abused its discretion in denying appellant probation, based upon factors inherent in the offenses, such as the victim's age-based vulnerability, and the seriousness of the offense."
DISCUSSION
The Trial Court Properly Refused To Grant Probation.
1. Pertinent Facts.
The information filed December 30, 1999, alleged, inter alia, that appellant committed two lewd acts upon a child, the first, on and between January 1, 1995, and January 1, 1996 (count two), the second, the previously discussed June 1999 offense (count one). The preconviction probation report prepared for a December 30, 1999 hearing reflects that appellant was born in March 1963. In October 1989, appellant was convicted of driving under the influence of alcohol and placed on probation for three years. Appellant was alleged to have possessed a controlled substance in February 1997, in violation of Health and Safety Code section 11350, subdivision (a). In that case, in April 1997, entry of judgment was deferred and, in October 1998, the case was dismissed.
Apart from the facts pertaining to counts one and two, the probation report also reflects that Maria M. told police that appellant had kissed her 12- or 13-year-old daughter two or three times one evening.
The probation officer stated, "It seems clear from what is presented by the Los Angeles Police Department's investigation . . . that the defendant has a history of committing sexually lewd acts with children. The probation officer strongly feels that this type of criminal conduct being committed by the defendant is wrong, and he clearly poses an immediate threat to the safet
Page 1 2 3 4 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|