What is the appropriate sentence for a man convicted of committing a lewd or lascivious act under section 288, subdivision (a) of the California Penal Code?

The commission of a lewd or lascivious act under section 288, subdivision (a) is punishable by a prison term of three, six, or eight years. Trial courts may also grant probation unless prohibited by statute (People v. Aubrey (1998) 65 Cal.App.4th 279, 282), and here, section 288 does not forbid a probationary sentence.⁷

"'A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citations.]' [Citations.]" (People v. Sizemore (2009) 175 Cal.App.4th 864, 879.) In deciding whether to grant

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probation, a trial judge must consider various facts relating to the crime and the defendant including, among others, how defendant's crime compares "to other instances of the same crime"; whether the defendant injured the victim physically or emotionally; "[w]hether the defendant took advantage of a position of trust or confidence to commit the crime"; the defendant's prior record; the collateral impact of the conviction on the defendant's future; and "[w]hether the defendant is remorseful." (Cal. Rules of Court, rule 4.414.) The court may also consider any "additional criteria reasonably related to the decision being made" (Cal. Rules of Court, rule 4.408(a)), including aggravating and mitigating circumstances set forth in rules 4.421 and 4.423. One such aggravating circumstance is "acts [by a defendant] disclosing a high degree of cruelty, viciousness, or callousness." (Cal. Rules of Court, rule 4.421(a)(1).) "The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citation.]" (People v. Leung (1992) 5 Cal.App.4th 482, 506.)