People v. Ochoa CA2/6

Discussion Appellant argues that the trial court abused is discretion in not granting probation. Probation is an act of leniency, not a matter of right. (People v. Walmsley (1985) 168 Cal.App.3d 636, 638.) "A defendant who is denied probation bears a heavy burden to show the trial court has abused its discretion. [Citations.] Furthermore, 'a denial of probation after consideration of the application on its merits is almost invariably upheld. [Citations.]' [Citation.]" (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157.) The trial court denied probation because the victim was 11 to 12 years old and appellant abused a position of trust. It found that "one time on an 11-to-12-year-old girl is one time too many" and "I don't think that's a probationary sentence." Appellant contends that the trial court erred in assuming that the conviction rendered him statutorily ineligible for probation. Although Section 1203.066, subdivision (a) permits a grant of probation for a non-forcible lewd conduct conviction, state prison is the sentencing norm. (People v. McLaughlin (1988) 203 Cal.App.3d 1037, 1039.) "[T]he defendant bear[s] the burden of persuading the court to…