McLaughlin

David Andrew McLaughlin was charged by complaint with three counts of committing lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)) and three counts of oral copulation of a child under the age of 14 (Pen. Code, § 288a, subd. (c)). As to the lewd act counts, it was additionally alleged that these were serious felonies (Pen. Code, § 1192.7, subd. (c)(6)), and that McLaughlin—the victim’s uncle—occupied a position of special trust and committed an act of substantial sexual conduct (Pen. Code, § 1203.066, subds. (a)(8)-(9)).

In the municipal court, McLaughlin entered an open plea of guilty to two of the lewd act counts, and admitted the special allegations. In return, it was agreed that the maximum term of incarceration he could receive was 16 years. The remaining counts against him were dismissed. Probation was denied and McLaughlin was sentenced to the mid-term of six years on both counts, each term to run concurrently with the other.

The sole issue on appeal is whether the superior court failed to exercise its discretion properly in denying probation.

Discussion

Penal Code section 1203.066, subdivision (a) declares that a defendant who commits the…