Filed 9/8/15 P. v. Reghitto CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040747
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1232007)

         v.

JOSEPH REGHITTO,

         Defendant and Appellant.


         Defendant Joseph Reghitto pleaded no contest to one felony count of sexual
penetration of a person under 18 with a foreign object (Pen. Code, § 289, subd. (h), count
1),1 and one misdemeanor count of annoying or molesting a child (§ 647.6, subd. (a)(1),
count 2). At sentencing, the trial court denied probation and imposed the low term of 16
months on count 1, along with a concurrent sentence of 30 days on count 2. In addition
to the section 290 registration required for count 2, the court exercised its discretion and
ordered Reghitto to register under section 290 for count 1 as well.
         On appeal, Reghitto argues the trial court abused its discretion in denying
probation and instead sentencing him to 16 months in state prison.
         We agree the trial court improperly determined Reghitto was presumptively
ineligible for probation under section 1203.067. However, Reghitto cannot show he was
prejudiced by the trial court’s error because the trial court also independently evaluated


         1
             Unspecified statutory references are to the Penal Code.
his suitability for probation under California Rules of Court, rule 4.414.2 Accordingly,
we will affirm the sentencing order.
I.     FACTUAL AND PROCEDURAL BACKGROUND3
       A.     Facts relating to the offenses and investigation
       In May 2012, Brian Thompson, vice principal of instruction at Leland High
School (Leland) in San Jose, California, contacted the San Jose Police Department to
report he had received an anonymous letter claiming Reghitto, vice principal of activities
at Leland, was having a sexual relationship with the victim, a Leland student.
       Thompson advised police the letter said Reghitto met the then-16-year-old victim
after midnight at a local park following back-to-school night on September 2, 2011.
During the encounter, Reghitto put his finger in the victim’s vagina. The letter also
advised that phone records and text messages from the victim’s cell phone and Reghitto’s
cell phone would confirm an ongoing sexual relationship and sexual communications
between the two.
       San Jose police officers interviewed the victim at Leland, and she informed the
officers she began communicating with Reghitto during the summer of 2011. She saw
Reghitto at the school gym where she was working out, and he began flirting with her on
Facebook. After he gave her his cell phone number, they communicated mostly by text
messages, which became increasingly flirtatious and sexual in nature. On September 1,
2011, the victim and Reghitto exchanged text messages about meeting at a local park at
1:00 a.m. after Reghitto was through drinking with some colleagues at a bar after back-




       2
        Unspecified rule references are to the California Rules of Court.
       3
        We derive the facts from the probation report, transcript of the preliminary
hearing and other documents contained in the record.


                                             2
to-school night. The victim said she drank alcohol with a friend before she went to meet
Reghitto at the park.4
       She met Reghitto at the park, where they started talking. Reghitto pulled her
toward him and they began to kiss. He put his hands inside her pants and inserted a
finger into her vagina. She felt uncomfortable and asked him to stop. Reghitto said he
wanted to continue and bring her to orgasm. The victim again said she wanted him to
stop and he did. They hugged a little longer, and the victim went home.
       In the days following, the victim and Reghitto exchanged text messages, all of
which were sexual in nature. In one of those messages, Reghitto implied that he wanted
to have intercourse with the victim. The victim’s friend forwarded a photo of the victim
to Reghitto in which the victim was topless but with her arm across her chest. Reghitto at
some point learned that the victim was not yet 18 years old, and she said his text
messages became less sexual thereafter.
       When interviewed by police, Reghitto initially denied communicating with the
victim on Facebook. He subsequently admitted texting her somewhere between 50 and
100 times, though he denied meeting her in the park. Later, Reghitto admitted that he
met her at the park, but said all they did was kiss. He expressly denied putting his hand
in her pants. Police asked if there might be text messages indicating that he put his finger
in the victim’s vagina, Reghitto said it was “possible,” and he was sorry. He finally
admitted putting his finger in her vagina, but he stopped “due to his conscience, which
started too late.” Reghitto told police he was relieved to admit what had happened,
although he knew the consequences would be “bad.” Reghitto also ultimately admitted
that he and the victim exchanged multiple sexually explicit text messages.5

       4
         At the preliminary hearing, on cross-examination, the victim recanted and said
she did not drink alcohol before meeting Reghitto that night.
       5
         Following his arrest, police determined Reghitto and the victim exchanged more
than 1300 text messages over a four-week period.


                                             3
       During their investigation, police spoke to a former female student at Leland who
had graduated in 2011. This former student admitted having a “very close relationship”
with Reghitto during her senior year, which involved hugging and kissing. Although
they never had sex, they texted each other many times about “going farther [sic], either
hooking up in his car,” or going to Reghitto’s house when his wife was gone. After her
father found an explicit letter written by Reghitto, he confronted him at a football game.
However, her father did not want Reghitto prosecuted because he did not want the matter
to affect her life or grades.
       A clerk who worked at Leland told police she saw Reghitto hug the former
student, “in what she perceived as an intimate embrace.” She confronted Reghitto, but he
dismissed it. In her opinion, Reghitto was “carefree and flirtatious.”
       B.      Trial court proceedings
       Reghitto was charged in a first amended information with a felony count of sexual
penetration of a person under 18 years of age (§ 289, subd. (h)) and a misdemeanor count
of annoying or molesting a child (§ 647.6, subd. (a)(1)).6 Prior to summoning the jury
panel, Reghitto entered a plea of no contest to both counts. During the change of plea
hearing, the trial court advised Reghitto he was eligible for a grant of probation and that
its decision on probation would be based on the probation recommendation and the
referral report. The court also noted it had told Reghitto’s counsel “there is a very good
possibility, although it is by no means guaranteed,” that it would grant probation.
       C.      Probation officer’s report
       In the report prepared for the originally-scheduled December 2, 2013 sentencing
hearing, the probation officer advised that the victim’s father reported Reghitto’s conduct
had “devastat[ed]” his daughter and “fractured” the family. The victim withdrew from

       6
         The original information included an additional charge of felony distribution or
exhibition of harmful matter to a minor (§ 288.2, subd. (a)).


                                             4
school for the last three weeks of her senior year because of the comments and “ridicule”
she received from other students. Though she completed her degree requirements and
attended graduation, she moved out of her parents’ house shortly thereafter.
       Her parents have “spent a lot of effort repairing their relationship” with the victim.
Everyone in the family, including siblings, had gone to counseling, and the victim
continued to see a therapist at least twice a month. The victim “put a lot of undue blame
on herself.”
       The victim’s father had been a coach at Leland for a number of years, but resigned
from a job he “loved” because of what Reghitto did. He wanted the court to know that
Reghitto left a “wake of bodies” behind him.
       In his written and oral statements to the probation officer, Reghitto “admitted
exchanging inappropriate text messages with the victim that were sexual in nature [that]
led to” him meeting her in the park where he kissed her and digitally penetrated her.
Afterward, he exchanged more sexually-related text messages with the victim until
approximately three months before his arrest.
       In 2010 and 2011, Reghitto had suffered several family tragedies and was unhappy
being an administrator rather than a teacher. Reghitto blamed alcohol consumption for
his actions the night he met the victim in the park and believes it affected his judgment.
He denied having any problems in his marriage prior to the offense.
       Reghitto denied being a threat toward young girls or the community and said he
had “addressed his conduct in counseling, and continues to attend therapy regularly.” For
six months, he “attended weekly Alcoholics Anonymous meetings,” but stopped “when
he felt they were no longer needed.” He stopped drinking entirely.
       His teaching and administrative credentials were revoked following his arrest and
his wife, another school administrator, was now the family’s sole source of financial
support. He barely left his house for the first year, but now volunteers at his church. He
expressed “intense remorse for the victim.” Reghitto hoped the court would impose a

                                             5
county jail sentence that he could serve on house arrest. If sent to state prison, he was
concerned his absence would have a negative impact on his four-year-old daughter.
       The probation officer assessed Reghitto using the Corrections Assessment
Intervention System (CAIS), which is used to gauge a defendant’s needs and risk to the
community. Pursuant to this assessment, the probation officer determined that Reghitto
would benefit from continued counseling and alcohol abuse services in order to remain
“successful and law-abiding in the community.” The probation officer also used the
Static-99R assessment to determine Reghitto’s risk of recidivism. She scored him as a
“2,” which indicated a low to moderate risk of reoffending.
       The probation officer believed Reghitto’s eligibility for probation was limited
under section 1203.067. However, it was her opinion this limitation could be overcome
since Reghitto had no prior convictions for similar crimes and the “facts and
circumstances” of his sexual penetration offense “could be viewed as less severe
compared to other sex offenses that fall under the same limitation listed in Section
1203.067.”
       The probation officer then applied the relevant criteria in rule 4.414 (criteria
affecting probation). The officer enumerated the sentencing factors she believed would
support imposition of a state prison term and recounted the aggravating and mitigating
factors she considered applicable to the court’s possible selection of one of the three
prescribed terms of imprisonment. Specifically, the probation officer noted the
aggravating circumstances included that Reghitto’s “actions appeared planned and
occurred over a period of time, and [he] took advantage of a position of trust to commit
the offense.” The only mitigating circumstance identified by the probation officer was
Reghitto’s lack of a criminal history.
       The probation officer expressly noted she had “struggled [in] formulating [her]
ultimate recommendation.” She recommended Reghitto be given “a maximum county
jail sentence, with no early release programs, and impose a three year [f]ormal

                                              6
[p]robation grant.” The officer further recommended the court impose substance abuse
and sex offender probation conditions.
       Attached to the probation officer’s report were, among other documents, copies of
an assessment prepared by a defense psychologist, Rahn Minagawa, Ph.D., a letter from
Lynne Woodward, Reghitto’s therapist, multiple reference letters from family, friends,
and former colleagues, as well as a letter from a senior member of Reghitto’s church. All
of these documents urged the trial judge to impose probation or otherwise impose a
lenient sentence.
       Dr. Minagawa’s assessment described Reghitto’s self-reported alcohol problems,
including that he had experienced over 10 alcohol-related blackouts. Reghitto told Dr.
Minagawa that before he met the victim in the park, he consumed over six alcoholic
drinks in less than two hours. He admitted he initiated contact with the victim on
Facebook after seeing her working out at the school gym, but said she had “texted him
back in sexually explicit ways.” According to Dr. Minagawa, Reghitto had been “in
therapy since his arrest,” was “gaining insight into his behavior and motivations, and
ha[d] made substantial progress in identifying triggers.” Dr. Minagawa administered the
MMPI-2 (Minnesota Multiphasic Personality Inventory), which suggested Reghitto did
not have a personality disorder, and also assessed him using the Static-99R. Dr.
Minagawa reported Reghitto scored a “1” on the Static-99R.
       At a December 2, 2013 hearing for receipt of the probation report, the trial court
noted the discrepancy between the Static-99R scores reported by the probation officer
and by Dr. Minagawa. The court accepted the probation officer’s Static-99R score of
“2,” which reflected a low to moderate risk of reoffending, and rejected Dr. Minagawa’s
score of “1,” which reflected a low risk for reoffending. The court advised defense
counsel that Dr. Minagawa might want to “review that and perhaps reconsider his
conclusions and recommendations.”



                                             7
       The court also read into the record the probation officer’s supplemental
memorandum, dated December 2, 2013, which reported a conversation she had with
Thompson on November 26, 2013:
       “During the course of [Thompson’s] investigation, the student who disclosed the
instant offense to school officials was to be removed and transferred to another school for
making ‘false statements’ about the defendant. This action was driven by the defendant.
Thompson [cannot] believe the defendant went to this ‘level’ to cover his actions. If
Thompson had not ultimately learned the truth from the victim, that student would have
definitely been removed.
       “Thompson changed school districts after the instant offense. He remains
concerned over retaliation for his children and his ex-wife because the defendant’s wife is
the principal where his children go to school, which is also where his ex-wife works.
       “Thompson further emphasized the impact defendant’s actions had on his former
school and the community . . . .”
       The court informed counsel: “I raise this because I imagine counsel will want to
address the content of this supplemental report . . . at our formal sentencing hearing. [¶]
Obviously it raises some great concerns to the Court, but I think it should be subject to
greater adversarial testing.”
       On December 31, 2013, Reghitto filed a letter from Dr. Minagawa which
explained why he gave Reghitto a different score on the Static-99R than the probation
officer. Dr. Minagawa conceded it was “technically” correct for the probation officer to
score a question about noncontact sexual offences with a “l,” but he still believed his
score of “0” on that question was more accurate because Reghitto’s “clinical
presentation” showed a lack of any “paraphilic interests or diagnosis.”
       The prosecutor filed a sentencing memorandum which urged the court to deny
probation and sentence Reghitto to 16 months in prison. In his sentencing memorandum,
Reghitto argued Thompson’s statements in the supplemental probation officer’s report

                                              8
were inaccurate and unreliable, and asked the court to impose a county jail term of eight
to 12 months, to be served on electronic monitoring.
       D.     Sentencing hearing
       Thompson testified he first interviewed the victim on April 19, 2012, and she
denied having a sexual relationship with Reghitto. Thompson then telephoned the
victim’s father, who said a former student and player on his team had overheard two of
the victim’s former friends talking about the victim having a sexual relationship with
Reghitto. The victim’s father thought one of the victim’s former friends was lying in
order to “get[] back at [the victim] for what [the victim] had done to [her].” He also had
confronted the victim, but she denied having any relationship with Reghitto.
       Thompson talked to Reghitto, who told him the victim’s former friend made up
the report of a sexual relationship to get back at Reghitto and the victim. The victim had
told Reghitto that her former friend had some sort of contraband in her car, so Reghitto
went and searched it. He said the victim’s former friend threatened to “blackmail him, . .
. [and] make something up against him if he got her in trouble.” According to
Thompson, Reghitto said he was contemplating whether he should “file charges” against
the victim’s former friend for making a false report.
       Thompson said that Reghitto was aware expulsion proceedings had been initiated
against the victim’s former friend because of her reporting the sexual contact between
victim and Reghitto, but he never objected or tried to halt them. The victim’s former
friend eventually showed the principal a text message from Reghitto to the victim which
referenced a sexual act, and Thompson reinterviewed the victim. At this point, “the truth
came out.”
       The victim’s father testified he had been friends with and worked with Reghitto
for the past two years. Several days before Reghitto was arrested, the victim’s father saw
Reghitto at a school fundraising event. He told Reghitto he did not believe the rumors
and he “had his back.” On May 1, 2012, Reghitto texted the victim’s father telling him,

                                             9
“We got a statement from a student that said [the victim’s former friend] was trying to
screw me over. [The principal] contacted the district about moving her. I’m assuming
the meeting with [the victim’s former friend] will come tomorrow.”
       The victim’s sister attended school the day after Reghitto’s arrest, but came home
“in a puddle of tears.” Neither she nor the victim returned to school for the final three
weeks. The victim and her sister did attend their graduation, and the victim’s father
heard some people shout “Joe” and “Reghitto” as she received her diploma. After
graduation, the victim cried “for hours.”
       The victim’s father explained how Reghitto’s offense had impacted other people:
“My wife works in the school district. She has [had] to deal with the murmurs in the
hallways . . . for the last year and a half. . . . [A] travesty is [that] Mr. Thompson and [the
principal were] two of the best administrators I have ever worked for in 17 years of
coaching by far. . . . [O]ne had to retire a year earlier than she wanted to and one had to
leave his post where he should [have been] named the principal.”
       Woodward, a licensed clinical social worker, testified on Reghitto’s behalf and
said they had had 54 counseling sessions to date. Before that, Reghitto had voluntarily
seen another therapist, Adrian Medina, several times between February and May 2012 for
“sexual acting out.” Reghitto did not disclose his conduct with the victim to Medina.
       Woodward believed Reghitto had made significant progress in their counseling
sessions. She diagnosed him with attention deficit hyperactivity disorder (ADHD),
anxiety, and as having alcohol “issues.” Reghitto told Woodward he was remorseful for
what happened with the victim and Woodward believed Reghitto was “capable of
performing positively” on probation.
       Reghitto’s wife testified Reghitto did all of the cooking, laundry, and
housekeeping. If he were incarcerated, it would have a “major impact” on their family,
and she would have a difficult time managing the household since they could not afford
daycare. Reghitto had become involved with her church after she confronted him in

                                              10
February 2012 about his having an affair with a student’s mother.7 When asked about the
effect of expulsion on the victim’s former friend, she agreed that if the girl had been
expelled, it would have greatly impacted her ability to get into college.
       A senior member of Reghitto’s church, Chester Hutchinson, testified Reghitto was
helping him with various programs, including Sunday school. Hutchinson believed
Reghitto was “very honest and very sincere about his spiritual life,” and remorseful about
his prior conduct with both the victim and the former student.
       Following argument by counsel, the trial court took a recess and retired to
chambers to “consider fully the arguments that you have made and the evidence that’s
been presented.” Upon returning to the bench, the trial court acknowledged its role of
“consider[ing] which of [the general objectives of sentencing] are of primary importance
in this particular case, guided by both the statutory statements of policy and the criteria
set forth in the Rules of Court, as well as of course the particular facts and circumstances
of this case.”
       The trial court then expressed its belief that “[Righetto’s] felony conviction
renders him presumptively ineligible for a grant of probation under the provisions of
[section] 1203.067,”8 meaning he “is not eligible for probation unless this Court finds
that this is an unusual case and that the interests of justice would best be served by



       7
          Reghitto’s wife also testified that, sometime after February 2012 but before his
arrest, Reghitto confessed to a second affair with a teacher at summer school.
        8
          Section 1203.067 provides, in pertinent part: “(a) Notwithstanding any other
law, before probation may be granted to any person convicted of a felony specified in
Section . . . 289, who is eligible for probation, the court shall do all of the following: (1)
Order the defendant evaluated pursuant to Section 1203.03, or similar evaluation by the
county probation department. (2) Conduct a hearing at the time of sentencing to
determine if probation of the defendant would pose a threat to the victim. The victim
shall be notified of the hearing by the prosecuting attorney and given an opportunity to
address the court.”


                                              11
granting probation.” Both counsel expressly agreed that section 1203.067 imposed a
presumption against probation eligibility.
       The court later stated, “I find first that the defendant has not overcome the
presumption against probation ineligibility . . . .” The court addressed what it believed
were the four applicable criteria listed in rule 4.413(c) and expressly found those criteria
were unfavorable to a grant of probation.9 Despite this finding, the court “felt that it was
necessary in this very difficult case to go further and to examine all of the criteria that
would affect a grant of probation in any case, not just in a case where there is a
presumption against the grant of that probation.” (Italics added.) Accordingly, the trial
court proceeded to evaluate Reghitto’s eligibility for probation under the factors set forth
in rule 4.414.10

       9
            Rule 4.413 provides, as relevant: “(b) Probation in unusual cases. If the
defendant comes under a statutory provision prohibiting probation ‘except in unusual
cases where the interests of justice would best be served,’ or a substantially equivalent
provision, the court should apply the criteria in (c) to evaluate whether the statutory
limitation on probation is overcome; and if it is, the court should then apply the criteria in
rule 4.414 to decide whether to grant probation. [¶] (c) Facts showing unusual case. The
following facts may indicate the existence of an unusual case in which probation may be
granted if otherwise appropriate: [¶] (1) . . . A fact or circumstance indicating that the
basis for the statutory limitation on probation, although technically present, is not fully
applicable to the case, including: [¶] (A) The fact or circumstance giving rise to the
limitation on probation is, in this case, substantially less serious than the circumstances
typically present in other cases involving the same probation limitation, and the
defendant has no recent record of committing similar crimes or crimes of violence . . . .
[¶] . . . [¶] (2) . . . A fact or circumstance not amounting to a defense, but reducing the
defendant’s culpability for the offense, including: [¶] . . . [¶] (B) The crime was
committed because of a mental condition not amounting to a defense, and there is a high
likelihood that the defendant would respond favorably to mental health care and
treatment that would be required as a condition of probation; and [¶] (C) The defendant is
youthful or aged, and has no significant record of prior criminal offenses.” (Italics
added.)
          10
             Rule 4.414 provides: “Criteria affecting the decision to grant or deny probation
include facts relating to the crime and facts relating to the defendant. [¶] (a) . . . Facts
relating to the crime include: [¶] (1) The nature, seriousness, and circumstances of the
(continued)

                                              12
              1.     Evaluation of the facts of the crime (rule 4.414(a))
       The trial court discussed the various criteria set forth in rule 4.414(a) relating to
the facts of the crime and indicated which of the factors were unfavorable to Reghitto and
which were favorable.11
       The first unfavorable factor the trial court found was the “nature, seriousness and
circumstances of the crime as compared to other instances of the same crime.” (Rule
4.414(a)(1).) The trial court agreed with the probation report that this factor was
unfavorable because Reghitto had “time to reflect before committing the offense and in




crime as compared to other instances of the same crime; [¶] (2) Whether the defendant
was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether
the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss
to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7)
Whether the crime was committed because of an unusual circumstance, such as great
provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime
was carried out demonstrated criminal sophistication or professionalism on the part of the
defendant; and [¶] (9) Whether the defendant took advantage of a position of trust or
confidence to commit the crime. [¶] (b) . . . Facts relating to the defendant include: [¶] (1)
Prior record of criminal conduct, whether as an adult or a juvenile, including the recency
and frequency of prior crimes; and whether the prior record indicates a pattern of regular
or increasingly serious criminal conduct; [¶] (2) Prior performance on probation or parole
and present probation or parole status; [¶] (3) Willingness to comply with the terms of
probation; [¶] (4) Ability to comply with reasonable terms of probation as indicated by
the defendant’s age, education, health, mental faculties, history of alcohol or other
substance abuse, family background and ties, employment and military service history,
and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and
his or her dependents; [¶] (6) The adverse collateral consequences on the defendant’s life
resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶]
(8) The likelihood that if not imprisoned the defendant will be a danger to others.”
        11
           The trial court found the following criteria were favorable to Reghitto: (1) no
weapon was employed (rule 4.414(a)(2)); (2) degree of monetary loss to the victim (rule
4.414(a)(5)); and (3) the crimes did not demonstrate criminal sophistication or
professionalism (rule 4.414(a)(8)).


                                              13
effect engaged in what amounts to almost a grooming behavior . . . through the ongoing
and continuous text communications of increasingly provocative nature.”12
       Turning to the “vulnerability” of the victim under rule 4.414(a)(3), the trial court
disagreed with the probation officer’s assessment that this factor was favorable to
granting probation. The trial court noted the victim was a high school student and
Reghitto, as an administrator at her school, was “someone with great authority over this
student.” Accordingly, the trial court also found that Reghitto “took advantage of a
position of trust or confidence” as an unfavorable factor under rule 4.414(a)(9).
       The trial court also specifically found that Reghitto inflicted physical or emotional
injury on the victim (rule 4.414(a)(4)) and this factor militated against a grant of
probation. Reghitto “actively pursued this child” and thus was an active participant in the
offense under rule 4.414(a)(6).
       As to whether the offenses were committed “because of an unusual circumstance
such as great provocation which is unlikely to recur” (rule 4.414(a)(7)), the trial court
again disagreed with the probation officer’s evaluation that this was favorable. The trial
court said this was unfavorable since “there is nothing . . . in the evidence . . . to suggest
any such provocation or circumstance.”




       12
          Reghitto takes issue with the trial court’s use of the term “grooming,” citing
evidence the victim was “sophisticated” as she may have consumed alcohol the night of
the incident, sent him a provocative photo of herself after their meeting in the park and, in
2010, falsely confirmed rumors among Leland students that she had a sexual relationship
with the wrestling coach. Whether the victim was more or less sophisticated than an
average 16- or 17-year-old and whether she made questionable choices in her conduct
with Reghitto is beside the point. The fact remains that Reghitto, an adult and
administrator at the victim’s school, initiated contact with her after seeing her working
out at the school gym, and perpetuated that contact through increasingly sexual text
messages, culminating in his agreeing to meet her in a park late in the evening where he
hugged her, kissed her and put his finger in her vagina.


                                              14
              2.      Evaluation of the facts relating to Reghitto (rule 4.414(b))
       The trial court then discussed the criteria listed in rule 4.414(b), outlining which of
these it found favorable or unfavorable to a grant of probation.
       The trial court found several factors to be favorable to Reghitto, namely: (1) his
lack of a prior criminal record (rule 4.414(b)(1)); (2) his prior performance on probation
or parole (rule 4.414(b)(2)); (3) his ability to comply with the terms of probation (rule
4.414(b)(4)); (4) adverse collateral consequences on Reghitto’s life resulting from the
felony conviction (rule 4.414(b)(6)); and (5) the likelihood Reghitto would be a danger to
others if not imprisoned (rule 4.414(b)(8)).
       The trial court found the remaining factors to be unfavorable. Addressing
Reghitto’s willingness to comply with the terms of probation (rule 4.414(b)(3)), the trial
court stated “[e]verything that has been presented to this Court, both in the nature of the
offense itself, the circumstances of the defendant’s behavior once caught, and even going
to what he did or did not say to his mental health therapists, all appear . . . to reflect not a
willingness or a recognition of the wrongfulness of his conduct, not a recognition of his
need to change, but a recognition of what it’s going to take to mitigate as much as
possible the effect of what he has done.”
       The trial court also found the likely effect of imprisonment on the defendant or his
or her dependents (rule 4.414(b)(5)) was unfavorable, stating Reghitto has an “incredible
support network” within his church and in his family. As a result, though imprisonment
“will be difficult, there is remediation on behalf of the family.”
       Finally, the court addressed the criteria whether Reghitto was remorseful (rule
4.414(b)(7)), again disagreeing with the probation officer’s assessment in this regard.
The trial court explained at length its conclusion that it did not believe Reghitto was
remorseful: “It is my impression from all of the evidence that the defendant is remorseful
only insofar as he is caught. He is remorseful for the first affair when he’s caught. He’s
remorseful for the second affair when he’s caught. He’s remorseful for his conduct with

                                               15
[the former student] when it comes out of those proceedings. [Sic.] He’s remorseful for
his conduct with [the victim] when he’s caught. [¶] I haven’t heard a word about [the
victim’s former friend]. And the fact that the defendant was willing to allow a 16, 17, 18
year old girl, however old she was, to be removed from school three weeks before her
high school graduation in order to protect himself casts, in this Court’s view, incredible
doubt on his protestations of remorse.”
              3.     Denial of probation and sentencing
       After addressing the relevant factors under rule 4.414, the court concluded, “[f]or
all of the foregoing reasons, I find first that the defendant has not overcome the
presumption against probation ineligibility, and that even if he had done so, the other
factors and criteria affecting the grant of probation simply would not justify a grant of
probation in this case.” Accordingly, the court denied probation and imposed the low
term of 16 months on count 1, with a concurrent sentence of 30 days on count 2.
Reghitto was awarded a total of four days of credits, consisting of two days of custody
credit and two days of conduct credit.
       Reghitto was ordered to register as a sex offender under section 290 on both
counts. He was further ordered to pay a $300 fee pursuant to section 290.3, plus $900 in
penalty assessments; a $200 restitution fine; $40 court security fees on both counts; $30
courtroom facilities fees on both counts; a booking fee of $129.75; and restitution of
$4,531 to the Victim Compensation and Government Claims Board.
       Reghitto timely appealed.
II.    DISCUSSION
       A.     Standard of review
       The grant or denial of probation is within the trial court’s discretion. (People v.
Weaver (2007) 149 Cal.App.4th 1301, 1311, disapproved on another ground in People v.
Cook (2015) 60 Cal.4th 922, 939.) The reviewing court must determine whether the trial
court’s order “ ‘is arbitrary or capricious or exceeds the bounds of reason considering all

                                             16
the facts and circumstances.’ ” (Ibid.) Accordingly, “ ‘a denial of probation after
consideration of the application of its merits is almost invariably upheld.’ ” (People v.
Mehserle (2012) 206 Cal.App.4th 1125, 1157.)
       When determining whether a trial court abused its discretion by denying
probation, we consider whether there is sufficient or substantial evidence to support the
court’s finding that a particular factor was applicable. (People v. Leung (1992) 5
Cal.App.4th 482, 506-507.) A reviewing court must set aside a sentence where “it is
reasonably probable that the trial court would have chosen a lesser sentence had it known
that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492
(Price).)
       The trial court, in deciding whether to grant or deny probation, must consider
statutory guidelines, including the safety of the public, the nature of the offense, the
interests of justice, the loss of the victim, and needs of the defendant. (§ 1202.7.) Rule
4.414 also sets forth certain criteria affecting a court’s decision to grant or deny
probation. These criteria include facts relating to the crime, such as the “[t]he nature,
seriousness, and circumstances of the crime as compared to other instances of the same
crime.” (Rule 4.414(a)(1).) The criteria also include facts relating to the defendant, such
as his prior record, his willingness to comply with the terms of probation, whether he is
remorseful, and the likelihood that he will be a danger to others if not imprisoned. (Rule
4.414(b).) Additionally, in deciding whether to grant or deny probation, a trial court may
consider additional criteria not listed in the rules, so long as those criteria are “reasonably
related to the decision being made.” (Rule 4.408(a).) A trial court is generally required
to state its reasons for imposing a prison sentence and denying probation. (Rule
4.406(b)(2).)
       In this case, the probation report advised the trial court Reghitto’s “eligibility [for
probation] is limited” under section 1203.067, but indicated this limitation could be
overcome under rule 4.413 because Reghitto had no prior convictions for similar crimes

                                              17
and the circumstances of the current offense were less severe when compared to other sex
offenses. The report went on to discuss the criteria set forth in rule 4.414, noting “both
favorable and unfavorable factors are present.” Ultimately, the probation report
recommended the trial court grant probation.
       “The purpose of a probation report is to assist the sentencing court in determining
an appropriate disposition. [Citation.] The court has the unquestioned discretion to reject
it in part or in toto.” (People v. Municipal Court (Lopez) (1981) 116 Cal.App.3d 456,
459.) Additionally, “ ‘[a] trial court may minimize or even entirely disregard mitigating
factors without stating its reasons.’ ” (People v. Zamora (1991) 230 Cal.App.3d 1627,
1637.) A “trial court need not articulate its reasons for rejecting factors which would
support the grant of probation.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 366,
disapproved of on another ground in People v. Whitmer (2014) 59 Cal.4th 733, 742.)
       B.     Analysis
       Reghitto contends the trial court abused its discretion in denying probation and
sentencing him to prison instead. He complains the trial court erroneously “believed that
its ability to grant probation was curtailed by . . . section 1203.067, subdivision (a),” and
thus the denial of probation was arbitrary and capricious.13 We agree the trial court
improperly interpreted section 1203.067 as creating a presumption that Reghitto was
ineligible for probation, but find he was ultimately not prejudiced by this error.
              1.     No presumption of probation ineligibility under section 1203.067
       There are a number of statutes which provide that probation may only be granted
“in unusual cases where the interests of justice would best be served.” (See, e.g., §§
1203.045 [crime of theft in excess of $100,000]; 1203.046 [solicitation of minor to

       13
         The People argue Reghitto has forfeited this argument because both parties
agreed at sentencing that section 1203.067 applied to this case. (People v. Scott (1994) 9
Cal.4th 331, 356.) We assume without deciding that Reghitto may raise the claim on
appeal and reach the merits.


                                             18
commit certain felonies]; 1203.074 [crime of furnishing location for storage, manufacture
or sale of controlled substances].) Section 1203.067, on the other hand, makes no
mention of “unusual case[s]” or the “interests of justice.” Rather, it sets forth certain
preconditions that must be met before the trial court may grant probation to a defendant
who has violated section 289, such as ordering the defendant to be evaluated under
section 1203.03, conducting a hearing to determine if the defendant would pose a threat
to the victim if probation were granted, etc.
       The People argue that rule 4.413 must be applied not only where there is a
statutory presumption against the grant of probation except in unusual cases, but also
where there is “a substantially equivalent provision.” (Rule 4.413(b).) In the People’s
view, section 1203.067 is a substantially equivalent statute. We disagree.
       Section 1203.067, subdivision (a) states “before probation may be granted to any
person convicted of a felony specified in Section . . . 289, who is eligible for probation . .
. .” (Italics added.) The requirements set forth in section 1203.067, such as the referral
for an evaluation under section 1203.03, etc., only come into play after a defendant is
initially found eligible for probation under criteria of rule 4.414. (People v. Ramirez
(2006) 143 Cal.App.4th 1512, 1532.) Section 1203.067 does not contain language
indicating that defendants subject to its terms face any preliminary hurdles that must be
overcome before they may be found eligible for probation. All it describes are the steps
the trial court must take before granting probation to an otherwise-eligible defendant who
has suffered a qualifying conviction.
       Accordingly, the trial court erred when it found that Reghitto’s conviction under
section 289 rendered him presumptively ineligible for probation under section 1203.067.
              2.     Reghitto cannot show prejudice from the error
       Since the error in question is one of state law, we will affirm unless the appellant
can show there is a reasonable probability a more favorable result would have been
reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836;

                                                19
Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) A reasonable probability is one
sufficient to undermine confidence in the outcome of the proceedings. (Strickland v.
Washington (1984) 466 U.S. 668, 694; In re Neely (1993) 6 Cal.4th 901, 909.)
       No such showing has been made. Despite its erroneous interpretation of section
1203.067, which led the trial court to needlessly analyze the factors set forth in rule
4.413, Reghitto was not prejudiced by this error. The trial court, after wrongfully
concluding that Reghitto had “not overcome the presumption against probation
ineligibility,” went on to state that “even if he had done so,” its evaluation of the factors
set forth in rule 4.414 did not “justify a grant of probation in this case.” (Italics added.)
This is the same analysis the trial court would have undertaken in the absence of section
1203.067,14 and as the court stated, its analysis of the rule 4.414 factors was independent
of its (erroneous) interpretation and application of section 1203.067 and rule 4.413. The
trial court evaluated Reghitto’s eligibility under rule 4.414 and concluded probation was
not justified. Reghitto makes no attempt to show the trial court would have granted
probation absent its error, and we find there is no reasonable probability it would have
done so.
              3.       Substantial evidence supports the trial court’s evaluation under
                       rule 4.414
       In his brief, Reghitto challenges the trial court’s analyses of the criteria in rule
4.414, arguing that many of the factors which it found to be unfavorable should be
considered favorable. It is not this court’s job to decide whether we agree with the trial
court’s conclusions. We are tasked with deciding whether substantial evidence supports




       14
           In fact, as noted in People v. Ramirez, supra, 143 Cal.App.4th at page 1532, the
trial court should have first reviewed the criteria under rule 4.414 to determine Righetto’s
eligibility. Having determined he was not eligible for probation under those criteria, it
need not have considered section 1203.067 at all.


                                              20
the trial court’s findings that these various factors were unfavorable to a grant of
probation in this case. Our review of the record shows it does.
       In denying probation, the trial court made a lengthy record of all the reasons why
it felt Reghitto was not a suitable candidate. Among those considerations were the
serious nature of the crimes he had committed while holding a position of trust and
authority over his victim, the facts which showed his active pursuit of a sexual
relationship with the victim, and the court’s belief that Reghitto’s pattern of behavior
whenever he is caught in an extramarital affair or an inappropriate relationship with a
student cast serious doubt on his expressions of remorse.
       Reghitto’s argument that the trial court failed to properly consider his suitability
for probation using the criteria in rule 4.414 belies the evidence to the contrary in the
reporter’s transcript. The court acknowledged its consideration of the probation officer’s
report, victim impact statements, letters of support provided by Reghitto’s family and
others, sentencing memoranda submitted by defense counsel and the testimony presented
at the sentencing hearing both in favor of and in opposition to Reghitto’s bid for
probation.
       Reghitto has failed to carry his burden to show the denial of probation was
arbitrary, irrational, or otherwise erroneous.
III.   DISPOSITION
       The sentencing order is affirmed.




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                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




      *
        Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
