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People v. Lucero4/6/1984
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
Crim. No. F002215
1984.CA.40885 ; 154 Cal. App. 3d 245; 201 Cal. Rptr. 99
April 6, 1984
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TOMAS PHILLIP LUCERO, DEFENDANT AND APPELLANT
Superior Court of Madera County, No. 5621, Clifford H. Plumley, Judge.
Roger Harden Spaulding, under appointment by the Court of Appeal, and Stone & Spaulding for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Willard F. Jones and William George Prahl, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Woolpert, J., with Franson, Acting P. J., and Hamlin, J., concurring.
Woolpert
5050*100uld the court return a father to the home in which he has sexually abused his daughter for years, rather than sentence him to prison? Only when the sentencing judge, after careful consideration of the law which permits that course of action, determines with confidence that all the statutory requirements have been met and penal confinement is not the more appropriate disposition. In this case the court rejected the probation and rehabilitation alternative. Defendant seeks to establish his eligibility for probation and asserts he should have been given an opportunity to reunite the family.
Defendant Tomas Phillip Lucero was charged in a two-count information with incest, a violation of Penal Code section 285, and with a lewd and
lascivious act on a child under the age of 14, a violation of section 288. Defendant pled guilty.
The court, before pronouncing sentence, requested psychological evaluation of defendant. At the time of sentencing, the court had before it three psychological evaluations of defendant, a probation report, a report from the public welfare department, letters of reference and a statement by the victim. The court sentenced defendant to the middle base term of six years for violating section 288. Defendant was also sentenced to two years for violating section 285, which was stayed pursuant to section 654.
The Facts
The facts of the case may be briefly stated. Defendant began a 12-year incestuous relationship with his daughter when she was 4 years old. Acts of fondling and oral copulation gave way to sexual intercourse before the child reached menarche. When the girl was 16 years old she finally told others what had been transpiring. At the preliminary hearing she testified that fear of a breakup of the family and her father's threat to kill himself had kept her silent.
Defendant, at the time of his conviction, had been married 19 years and had 4 other children, all sons. He was the sole wage earner for the family. His only prior conviction was for drunk driving .
Defendant was confronted with the daughter's accusations by his wife on the morning of his arrest. He took a gun to work and inferentially threatened to kill himself if the police attempted to arrest him. Upon arrest, police found the gun in his lunch pail.
After defendant was arrested, the victim and her mother had a confrontation. Basically, the mother accused the daughter of instigating the whole affair. The daughter, apparently suicidal, was placed in a foster home and remained there through the time of sentencing. After his plea of guilty, defendant's comments to those who intervie
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