People v. Blowers CA3

Opinion

Filed 8/28/26 P. v. Blowers CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT

(Yuba)

THE PEOPLE, C103395 Plaintiff and Respondent, (Super. Ct. No. CRF2500097)

v.

KYLE STEVEN BLOWERS, Defendant and Appellant.

Defendant Kyle Steven Blowers pled no contest to committing two lewd acts on his girlfriend’s child (victim). He entered this plea in exchange for probation or up to eight years in prison. The trial court denied defendant’s request for probation and sentenced him to eight years in prison. Defendant contends the trial court abused its discretion by denying probation. We disagree and affirm. Undesignated statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with five counts involving victim: one count of continuous sexual abuse of a child (§ 288.5, subd. (a)); three counts of lewd acts on a child (§ 288, subds. (a), (c)(1)); and one count of misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1)). Defendant pled no contest to two lewd act counts in exchange for dismissal of the other counts and either probation or up to eight years in prison. Defense counsel specifically represented defendant’s eligibility for probation and

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noted defendant would need a report under section 288.1 (section 288.1 report) to get probation. The trial court stated granting probation in this case required both a section 288.1 report and “an unusual case finding.” The court then ordered a probation report and set the matter for sentencing.

According to the probation report, defendant sexually abused victim for years.

When victim was 12 years old, defendant asked her to give him “cuddles.” During these cuddles, defendant would sometimes place his hand on her breast or hip and buttocks. The last time they cuddled, defendant pulled down victim’s pants and inserted his penis between her waistband and underwear and began to move back and forth. Defendant also masturbated in front of victim and asked her to massage him behind his thighs near his buttocks. Over time, defendant asked victim to sit on his lap and massage his chest “every other day.” Victim would straddle his groin area and could “feel his penis either ‘standing up’ or ‘laying down.’ ”

Defendant admitted he asked victim to massage his legs and thighs with a massage gun. He became aroused and asked her to massage his inner thigh, and she would sometimes brush against his penis when doing so. On two or three occasions, he fell asleep while cuddling victim and woke up to find his hand near her breast. The last occasion he remembered, he pulled her pants down and woke up to find his penis out of his boxers.

Defendant stated he was “completely ashamed” of his behavior, he believed his judgment “was clouded by marijuana use,” and he “would not make the same choices today.” He also indicated willingness to comply with probation conditions and requested sex offender therapy and drug testing as conditions.

Defendant had one prior misdemeanor conviction for polluting public water (Fish & G. Code, § 5652) and several pending charges in Placer County for engaging in sexual battery, sexual penetration with a foreign object, and oral copulation (§§ 243.4, 289, subd. (a), 287, subd. (c)) while acting as a massage therapist (the Placer County case).

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One of his massage clients told a police officer that he inserted his fingers into the client’s vaginal canal, put his face in between her thighs, licked her vagina, and rubbed his hands along her breasts. A second client reported the defendant touched her breasts multiple times and rubbed her leg up to her vagina. And a third client reported that defendant touched her outer genitalia and the sides and underneath her breasts.

The probation report noted defendant’s ineligibility for probation absent a favorable section 288.1 report. The probation report recommended a six-year (middle term) sentence for one of the lewd act counts and a consecutive two-year sentence (onethird the middle term) for the other because: (1) defendant took advantage of victim’s trust and vulnerability; and (2) the offenses demanded “an extensive prison sentence to reflect the severity of the crimes committed” and to provide community protection.

At the sentencing hearing, defense counsel requested probation, acknowledging the need for a section 288.1 report and citing defendant’s minimal criminal history, early acceptance of wrongdoing, and willingness to participate in classes or therapy. The trial court asked about the status of the Placer County case, commenting that it “reinforce[d] the idea that [defendant was] not a candidate for probation.” Defendant responded, “I’m fighting that case.” The court then stated, “This is a gentleman [who] exploits positions of trust, whether that is in the scope of his employment or in his role as a parent. I’m not inclined – I will not continue this for purposes of getting a 288.1 report. While he has no prior record, the conduct in this case, even with a favorable report, I could not grant probation.”

The court then heard statements from victim and victim’s aunt. According to victim, defendant knew she had been abused before and promised he would “never do something like that to [her]. [Victim] believed him, and he broke that trust.” After defendant’s actions, victim started acting out and cutting herself. She also had a hard time sleeping and trusting people.

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The prosecution requested the eight-year maximum described in the plea agreement. Defense counsel requested the low term and argued the court should not consider the Placer County case because it reflected “allegations and not convictions.”

The court noted defendant’s early acknowledgement of wrongdoing but found he took advantage of a position of trust and of a particularly vulnerable victim who had previously been victimized. The court imposed the eight-year sentence, finding that defendant was “undeserving of the low term.” Defendant timely appeals.

DISCUSSION

A trial court has broad discretion to grant or deny probation except when otherwise limited by statute. (People v. Edwards (1976) 18 Cal.3d 796, 807.) One such limiting statute is section 288.1. That statute makes a person convicted of committing a lewd act upon a child under the age of 14, like defendant was here, ineligible for probation unless the person obtains a report from a reputable psychologist or psychiatrist. (§ 288.1.) A court is not required to request a section 288.1 report if (1) it has no intention of granting probation and (2) the record supports such a denial of probation. (People v. Thompson (1989) 214 Cal.App.3d 1547, 1549.)

Defendant contends the trial court did not understand it had the discretion to order probation in this case. In support, he focuses on the trial court’s statement that it “could not grant probation” even with a favorable section 288.1 report. As we will explain, defendant places undue emphasis on the word “could.”

A defendant is entitled to sentencing decisions made in the exercise of informed discretion. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) A court cannot exercise that “informed discretion” where it is “unaware of the scope of its discretionary powers.” (Ibid.) Having said that, we presume the trial court knows and applies the law correctly, and the appealing party bears the burden of demonstrating otherwise. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 835; People v. Selivanov (2016)

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5 Cal.App.5th 726, 795.) We also consider the entirety of the trial court’s statements rather than isolated or ambiguous remarks. (Du, at p. 835.)

Here, the trial court acknowledged probation as an option when defendant entered his plea, and the probation report reiterated that option. (See People v. Black (2007) 41 Cal.4th 799, 818, fn. 7 [trial court presumed to have read and considered the probation report].) The trial court ultimately determined it “could not” order probation given defendant’s conduct in this case. In light of that record, we do not agree with defendant that the trial court thought it lacked the authority to order probation. Considered in context, we interpret the trial court’s statement to mean that it understood its discretion but declined to grant probation given the circumstances of this case.

Assuming the trial court understood its discretion to order probation, defendant contends the court nevertheless abused that discretion by denying probation without evidentiary support. We disagree. Defendant relies on facts relating to him that favor probation, specifically his remorse, his lack of a felony record, his willingness to comply with probation, and the effect of daily marijuana use on his commission of the offenses. (See Cal. Rules of Court, rule 4.414(b).) But he ignores facts relating to the crime that weigh against probation. (See Cal. Rules of Court, rule 4.414(a) [victim’s vulnerability, whether defendant took advantage of a position of trust, and whether defendant was an active or passive participant].) The trial court stated it could not grant probation based on the conduct in this case and provided a more detailed explanation for the middle term sentence it chose, specifically finding that defendant took advantage of a position of trust and abused a particularly vulnerable victim “in the worse possible way.” The court was not required to elaborate further and defendant does not contend otherwise, nor does he challenge the middle term findings for lack of substantial evidence. (See People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157-1158 [court’s obligation to state reasons for denying probation satisfied by explanation of why probation has been rejected]; People v. Cushway (1987) 193 Cal.App.3d 776, 779-780 [when a court states reasons for

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imposing a midterm sentence, it does not need to supply reasons for denying probation].) To the extent defendant contends the trial court struck the wrong balance regarding probation, we cannot reweigh the factors bearing on the court’s sentencing decision. (People v. Scott (1994) 9 Cal.4th 331, 355.)

Defendant also contends the trial court lacked substantial evidence to find he exploited a position of trust in his employment because that finding was based on the Placer County case, a case that had not yet produced any convictions. But the probation report described the allegations underlying the Placer County case in detail, and authorities have established that trial courts can rely on that type of information when making sentencing decisions. (People v. Kellett (1982) 134 Cal.App.3d 949, 960; People v. Phillips (1977) 76 Cal.App.3d 207, 213-215.) Defendant does not address those authorities or explain why the trial court could not consider the detailed allegations provided in the probation report. (People v. Williams (1997) 16 Cal.4th 153, 206 [points perfunctorily asserted are not properly raised].) In any event, the record shows the trial court’s decision to deny probation was not based on the Placer County case. The trial court expressly stated it could not grant probation based on “the conduct in this case,” referring to the case pending before it, not the Placer County case.

In sum, because the trial court had no intention of granting probation and the record supports that denial, the trial court was not required to order a section 288.1 report. (People v. Thompson, supra, 214 Cal.App.3d at p. 1549.) Having reached that conclusion, we must reject defendant’s contentions that the trial court “shortcut[]” the process by not ordering a continuance for the purpose of obtaining a section 288.1 report.

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DISPOSITION

The judgment is affirmed.

/s/ MESIWALA, J.

We concur:

/s/ MAURO, Acting P. J.

/s/ WISEMAN, J.*

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.