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Name: People v. Wutzke
Case #: D033221
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/01/2000
Subsequent History: Review granted 12/20/00 (S092179)

Review granted on this case. Remand for resentencing was required where the trial court was under the mistaken belief that appellant was ineligible for probation because he was not a “relative” as described by Penal Code Section 1203.066. A jury convicted Wutzke of four violations of section 288, subdivision (a), against more than one victim. He was therefore ineligible for probation under section 1203.066 unless he was a parent or relative who lived in the household. Although Wutzke was not related by blood to the victims, he was the functional equivalent of their grandfather, and had lived with the victims’ grandmother as her common law husband for twenty years. The appellate court here held that Wutzke was a “relative” for purposes of the statute because he was a member of the victim’s household who lived in the household, he had known the victims all their lives and had interacted with them as a grandfather, and had the kind of bond the Legislature envisioned when it enacted section 1203.066. Although it may not have been in the victims’ best interest to grant probation, the trial court erred when it found Wutzke presumptively ineligible.