Filed 9/22/15 P. v. Villa CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060885

v.                                                                       (Super.Ct.No. RIF1101097)

FRANCISCO VILLA, JR.,,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michele D. Levine,

Judge. Affirmed.

         Pensanti & Associates, and Louisa B. Pensanti, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H.

Chow, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Francisco Villa, Jr., appeals from a judgment of

conviction of two acts of lewd and lascivious conduct upon a child under the age of

14 years, one forcible. (Pen. Code, § 288, subdivisions (a) and (b)(1).) The judgment

was the result of a guilty plea.1 Defendant was sentenced to an agreed term of six years

in prison.

       Defendant’s contentions on this appeal revolve around a claim that he received

constitutionally deficient legal assistance in the trial court. We affirm.

                               STATEMENT OF THE CASE

       The case was initiated by the filing of a petition in the juvenile court. The People

then moved to have the minor (defendant) declared not a fit and proper subject for the

juvenile court (Welf. & Inst. Code, § 707, subd. (c).) The motion alleged that defendant,

born on June 23, 1990, was over 14 years of age (in fact, he was almost 21 years of age)2

and was not amenable to juvenile rehabilitation.

       The motion was apparently heard solely with reference to the probation officer’s

report.3 This report reflected that the incidents took place about four years before they

were reported in January 2011. The victim was a boy of seven who was being looked


       1   Defendant obtained a certificate of probable cause.

       2  The juvenile proceedings were held in 2011 and the eventual conviction
rendered in March 2013. In December 2013 defendant filed a request for leave to file a
late notice of appeal (In re Benoit (1973) 10 Cal.3d 72), which this court granted.

       3 The court had ordered a mental health evaluation (see Evid. Code, § 1017), but
this was apparently not provided to the trial court.


                                              2
after by defendant’s grandmother. While the victim was playing videogames in

defendant’s bedroom, defendant grabbed him, pulled his pants down, and sat the victim

on defendant’s erect penis until defendant ejaculated. Defendant then told the victim

“ ‘Don’t tell or I will beat your ass.’ ” A second similar incident took place a few weeks

later, when defendant took the victim into a van parked in front of the home.4 Defendant

admitted that these incidents had occurred.

       The probation officer also addressed the specific factors of suitability or

unsuitability set out in Welfare and Institutions Code section 707. With respect to

“criminal sophistication,” the probation officer recommended that the minor could be

found to have exhibited such sophistication because he apparently believed that he would

not be interrupted, had threatened the victim, and had taken advantage of the victim’s

presumed trust and youthful age. As for defendant’s ability to be rehabilitated, the report

noted that a commitment through defendant’s 25th birthday would be possible, and

expressed the view that he could be rehabilitated within that time frame.

       With respect to defendant’s previous delinquence, the report indicated that he

should be found “unfit” because he was currently on summary probation for another

sexual offense, unlawful intercourse with a minor. (This conviction evidently occurred in

adult court.) (Pen. Code, § 261.5, subd. (c).) The report also noted that defendant was




       4  The victim’s statements tended to indicate that defendant anally penetrated him
as the victim reported that “[i]t hurt.” Defendant told investigators that he was unsure
whether his penis went beyond the victim’s “cheeks.”


                                              3
not “unfit” under the criterion relating to previous attempts at rehabilitation because this

was his first appearance in juvenile court.

       Finally, the report reflected the opinion that defendant was unfit due to the gravity

of the offense, noting his threat to the victim and the victim’s later manifestations of

psychological harm.

       At the hearing, defendant’s attorney challenged the element of “criminal

sophistication” and also stressed the availability of over five years of confinement and

rehabilitation. Counsel also argued, with respect to the gravity of the offense, that it was

defendant’s first offense and he was not unsalvageable.

       The trial court eventually agreed with probation that defendant’s conduct in

assaulting a victim who “probably wouldn’t tell anybody and that I can overpower and

influence . . . ,” and using threats to ensure silence showed some quantum of criminal

sophistication. It found defendant fit for juvenile court under the criteria of previous

delinquence and the result of previous rehabilitation attempts (because there had been

none). However, it then found defendant unfit under the “gravity of the offense” criterion

as well. As the trial court recognized, either of the two “unfit” findings mandated a

transfer to adult court, and it made the appropriate orders.

       As the matter proceeded in adult court, negotiations resulted in defendant’s

agreement to plead guilty to the charge under Penal Code section 288, subdivision (b), for

the low term of three years in state prison.




                                               4
       Accordingly, a report was prepared as authorized by Penal Code section 288.1.5

This recited defendant’s essentially unremarkable (except for the current offenses) sexual

development and history, which was otherwise exclusively heterosexual. It also

described the conduct resulting in defendant’s recent conviction as a typical teen romance

broken up by the girl’s mother when the latter realized that the couple were sexually

active. Defendant also candidly described the incidents and expressed remorse and

insight. The evaluator found him highly amenable to treatment, unlikely to repeat his

actions and commented that the acts appeared to likely be the result of “curiosity and

insecurity.”6

       At this point the trial court threw a spanner into the works. It raised concerns

about defendant’s age at the time of the offenses—a point never clearly established

although defendant apparently had indicated that he thought he was 14 at the time. If he

had not reached his 14th birthday, he was not subject to trial in adult court. (Welf. &

Inst. Code, § 707, subd. (c).) Given this uncertainty, the trial court expressed doubts

about its jurisdiction over defendant and ultimately rejected the plea. Its grounds for

doing so were expressed as follows: “And the court has considered the 288 [sic] report,




       5 This statute prohibits the granting of probation in a case involving a sexual
offense against a child under 14 unless the court obtains a report on the defendant’s
“mental condition.”

       6She also commented that sex offender registration under Penal Code section 290
would be a detriment both to defendant and society.


                                             5
which is also a reason why the Court rejected the plea. But the biggest concern is

whether this Court is even the appropriate jurisdiction. And we’ll sort that matter out.”

       The matter eventually came on for trial over a year later, at which time defendant

elected to plead guilty to both charges in return for a sentence of six years.7

       This meant, of course, that defendant wound up with twice the amount of time to

be served compared to the original deal. Hence, he challenges counsel’s failure to

prevent the trial court from withdrawing its agreement to the first plea bargain. His

arguments fail.

                                       DISCUSSION

       Defendant begins by asserting that trial counsel was ineffective in failing “to

object to the Juvenile Probation Officer’s Report.” As the People point out, the trial court

was required to obtain such a report prior to the fitness hearing. (Welf. & Inst. Code,

§ 707, subd. (c).) Defendant cites generally to cases establishing the standards for

attorney performance and the remedy; with these of course we do not disagree. (E.g.,

Strickland v. Washington (1984) 466 U.S. 668, 687-688; In re Hardy (2007) 41 Cal.4th

977, 1025.) But defendant fails to demonstrate the applicability of these authorities in his

favor by any specific claim. The only actual argument we can find is that trial counsel

should have objected to unspecified “hearsay” in the probation officer’s report. But

hearsay statements from the victim and the victim’s family members “shall” be included

       7It should be noted that the matter was then before a different judge than the one
who had rejected the earlier plea. Defendant’s second plea of guilty expressly
acknowledged that the offenses were committed after his 14th birthday.


                                              6
in the probation officer’s report prepared for the fitness hearing. (Welf. & Inst. Code,

§ 707, subd. (e).) In the absence of anything more specific from defendant, we do not see

the error.

       Defendant then complains that his “defense attorney did not make a single

objection to the psychological evidence; thus, his performance fell below an objective

standard of reasonableness.”8 This is a classic non sequitur. An attorney is not obligated

to make motions or objections which have no merit. (People v. Thompson (2010) 49

Cal.4th 79, 122.) Defendant does not spell out what objections should have been made or

how any objections would have led to a more favorable result.

       With respect to the fitness hearing, the trial court found defendant ineligible due to

the gravity of the offense. The ultimate fitness finding is reviewed for abuse of

discretion. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 680 (Jones).) A

minor in defendant’s situation is presumed unfit unless he or she satisfies all of the

requirements in Welfare and Institutions Code section 707, subdivision (c)(1)-(5).

(Jones, at p. 683.) Defendant does not directly challenge the finding that the charged

offenses were sufficiently “grave,” and if he did we would find no abuse of discretion

based on the age of the victim, the evidence of painful penetration, and the defendant’s

threat to harm the victim if the latter reported the abuse. Defendant points to nothing that

counsel did or did not do which would have likely led the trial court to find that the


       8  It is not clear whether this refers to any relevant comments in the probation
officer’s report or the later Penal Code section 288.1 report.


                                              7
offense was not sufficiently grave and thus fails to show the ineffective assistance of

counsel.9

       The next point is that defense counsel (at some or all points) breached his duty to

investigate the matter. Without any showing as to what any such investigation would

have shown in defendant’s favor, this fails to establish the essential element of prejudice.

       Defendant then moves on to the proceedings in adult court, focusing on the trial

court’s rejection of the three-year deal. In this respect he simply sets out the procedural

course of the matter following its commencement in adult court without actually asserting

what the errors were or what counsel should have done. However, by reading the

opening brief as a whole, we believe defendant intends to suggest that certain findings in

the report prepared under Penal Code section 288.1 were inaccurate. To some extent we

agree, but not in any respect which assists defendant.10

       9Because one element of unfitness is sufficient, we need not consider whether
defendant’s conduct reflected “criminal sophistication.”

       10   We have earlier noted that the report is overall quite favorable to defendant, his
prospects for rehabilitation, and the unlikelihood of future offenses. However, the report
includes two “sexual offender attachments” which appear to be intended to set out the
criteria in Penal Code section 1203.066 which establish absolute ineligibility for
probation for some child sex offenders (subd. (a)) and also the criteria under which
probation may be granted to other child sex offenders (subd. (d)). Statements included by
defendant in his “Statement of the Case” attack, for example, the evaluator’s finding that
he occupied a position of special trust with respect to the victim. We agree that this is
dubious.
        In other instances noted by defendant, the evaluator’s comments did not actually
support the finding. For example, with respect to the disqualifying criterion of “force,
violence, duress, menace,” or threat, the evaluator simply noted that the victim was only
seven years old. However, the evaluator noted that she reviewed the police and
investigative reports, which included the victim’s report that defendant threatened to
                                                                  [footnote continued on next page]


                                              8
        We agree with the People that the record indicates that the trial court’s primary

reason for rejecting the three-year deal was its doubt as to defendant’s age at the time the

offenses were committed. Defendant presents nothing to show that this concern was not

well-founded, given the lack of clarity in the record at that point concerning the dates of

the offenses.11 Furthermore, although defendant presumably believes, or wishes to

argue, that the trial court rejected the plea in part because, based on the report, it felt that

three years was inappropriate, the favorable nature of the report makes it more likely that

it felt that three years was too severe. That is, defense counsel had no reason to challenge

the report in general because it was favorable and, when the trial court rejected the three-

year plea, arguably offered defendant the chance at a better deal.12

[footnote continued from previous page]
harm him if he disclosed the first instance of abuse. To support the finding of
“substantial sexual conduct,” the evaluator again merely noted the victim’s age, but there
clearly was ample evidence of “substantial sexual conduct” which subdivision (b) of
section 1203.066 defines as either penetration, oral copulation, or masturbation of either
the victim or the offender. There was evidence in the record available to the evaluator of
actual penetration (the victim’s statement that “[i]t hurt very much” and at the very least
defendant’s conduct in placing the minor’s buttocks over his erect penis constituted a
form of masturbation. (See People v. Dunn (2012) 205 Cal.App.4th 1086, 1098, fn. 8.)
Thus, the evaluator’s finding was fully supported.

        11The offenses were pleaded as occurring after defendant’s 14th birthday, but
there was no actual evidence at that point in the proceedings.

        12  Although defendant would presumably have been found ineligible for
probation if he had been convicted of the forcible charge (Pen. Code, § 288, subd. (b)), he
could have received probation if the People agreed to accept a plea to the charge under
subdivision (a). In either case the minimum term was three years under the provisions in
effect at the time of the offenses.
        Subdivision (a) of Penal Code section 1203.066 applies ineligibility as well to
those convicted under subdivision (a) of section 288 if the offense includes either force or
                                                                    [footnote continued on next page]


                                               9
        To summarize our conclusions with respect to these arguments as we understand

them: Any errors in specific findings by the evaluator were harmless and no challenge by

counsel would have affected the underlying critical findings of threats and substantial

sexual conduct. Furthermore, as these findings were only relevant to a grant of probation

and the agreed term was three years in state prison, there was obviously no prejudice.

        Still further, at the time the trial court rejected the three-year plea, there was at

least some measurable doubt as to whether defendant was properly before the adult court

in the first place. When the plea was rejected, he therefore had the possibility of

returning to juvenile court, or even negotiating a more favorable disposition in adult

court. Of course neither of those things happened. (As noted above, a new judge took

over the case following the rejection of the plea.) Instead, defendant found himself still

in adult court and apparently facing a less generous prosecutor. But trial counsel could

not have predicted or even expected the result which in fact occurred, and acted within

professional norms by not attempting (in some unspecified way) to enforce the plea

agreement over the court’s disinclination.13

        Finally, defendant simply asserts that “cumulative errors” so infected proceedings

that it violated his right to due process. There were no errors and no violation.


[footnote continued from previous page]
threats, or substantial sexual conduct; but the ineligibility only applies if these elements
are pleaded and proved. (Pen. Code, section 1203.066, subd. (c)(1).)

        13Nothing in the record indicates what evidence might exist which would make it
possible to “nail down” the date of the offenses, or which explains the prosecutor’s
insistence on a doubled term in the new plea agreement.


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                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               HOLLENHORST
                                                             J.
We concur:



RAMIREZ
                    P. J.



MILLER
                       J.




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