Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SCD207466 of San Diego County, Jeffrey F. Fraser, Judge. Affirmed.
HALLER, Acting P. J.
Jose Luis Matias pled guilty to sexual penetration of an intoxicated person. (Pen. Code, § 289, subd. (e).) The court imposed a six-year sentence, and ordered Matias to pay $1,000 in restitution. On appeal, Matias contends the court abused its discretion by denying him probation. We reject this contention and affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The factual summary is based on the preliminary hearing transcript and probation report because Matias pled guilty before trial.
In late October 2005, two female UCSD students, SG (age 18) and HS (age 19), planned to attend an off-campus Halloween party sponsored by a fraternity. UCSD had arranged for a bus to transport students from a campus parking lot to the party held at a hotel about 15 minutes away. Before leaving the dorms, SG and HS each consumed about seven alcoholic drinks. The women then went to a campus parking lot where they boarded the bus to take them to the party. Matias was the bus driver.
While on the bus, SG and HS drank an additional alcoholic beverage contained in a water bottle. When they arrived at the hotel, SG was highly intoxicated, stumbled down the bus aisle, and slouched over in a chair two seats behind Matias. HS coaxed SG to get off the bus, but SG said she would just "ride [the bus] a couple of times and... be fine." HS was hesitant about leaving her friend, but Matias reassured HS that SG would be safe with him. According to HS, Matias said: "She'll be okay. She'll be safe. I'll just take her for a couple of rides and she'll be fine."
SG never made it to the Halloween party. She next remembered walking back to campus at about 2:00 to 3:00 a.m. with a girl she had met earlier that evening. The girl said she took SG off the bus because the bus driver was acting strange and had said he wanted SG to stay on the bus. SG still felt "pretty drunk" after returning to her apartment, and "kind of passed out."
The next morning, SG realized her vagina was sore. She vaguely remembered a male standing over her on the bus and thrusting his body, and she felt something inside her vagina. SG went to the student health center for an examination. The examination revealed SG had lacerations and bruising on her vaginal area. The police were contacted.
When initially interviewed by detectives, Matias denied anyone had stayed on his bus. However, Matias later admitted that SG stayed on his bus that evening. He told the police he heard SG groaning and pulled off the road to check on her. He claimed he had consensual sexual intercourse with her, which she initiated. Matias said SG did not seem that drunk. Testing confirmed Matias's DNA matched the sperm cells located in SG's vagina.
Matias was arrested and charged with rape of an intoxicated person, rape of an unconscious person, sexual penetration of an intoxicated person, and rape by foreign object of an unconscious victim. (§§ 261, subd. (a)(3)(4), 289, subds. (d)(e).) In exchange for pleading guilty to sexual penetration of an intoxicated person (§ 289, subd. (e)), the People dismissed the remaining charges with a Harvey waiver.
A Harvey waiver permits the sentencing court to consider the entire factual background of the case, including any charges dismissed under a plea bargain. (In re Carl N. (2008) 160 Cal.App.4th 423, 427, fn. 3; see People v. Harvey (1979) 25 Cal.3d 754, 758-759.)
Sentencing
In his sentencing statement, the prosecutor conceded Matias was eligible for probation, but urged the court to find the circumstances weighed in favor of denying probation. In support, the prosecutor identified several aggravating factors, including that SG was particularly vulnerable; Matias was an active participant in the crime; there was no provocation or unusual circumstance; and Matias took advantage of a position of trust or confidence. (See Cal. Rules of Court, rule 4.414(a).)
All further rule references are to the California Rules of Court.
In his sentencing statement, Matias's counsel requested the court to grant Matias probation, emphasizing that Matias had no criminal record. Defense counsel also argued that the crime took place only because of Matias's "mistaken belief that the victim could consent to the acts." Counsel said the "situation occurred where [Matias] came into contact with an inebriated individual and thought that the victim might be interested in having sex with him. Unfortunately, Mr. Matias misread the situation and, more importantly, the victim's lack of sobriety." Matias's counsel also argued that imprisonment would have a severe detrimental effect on Matias and his family, and that he demonstrated remorse for the crime.
In support of these arguments, Matias submitted his own handwritten letter and numerous other letters from family and friends who believed probation was the appropriate outcome of the case and that Matias's criminal conduct was highly uncharacteristic of his normal behavior.
Matias also relied on a report by clinical psychologist Dr. Gregg Michel. Dr. Michel opined that Matias was not a sexual predator, and it was unlikely he would reoffend if Matias received ongoing treatment from experienced mental health professionals. However, Dr. Michel also noted that Matias's behavior was "grossly inappropriate and exploitive," and that his continuing assertions that the victim put her arms around him and pulled him towards her are "quite implausible given the victim's state of intoxication" and likely reflects Matias's attempt to mitigate his improper conduct. Dr. Michel also stated that despite Matias's expressions of regret, Matias "did not express specific concerns with regard to the potential detrimental effects of his behavior on the victim" and instead was concerned primarily with his "legal fate."
In the probation report, the probation officer stated she "tends to concur with Dr. Michel in believing that the defendant has the ability to abide by probation conditions." However, the officer also said a "punitive sanction" would be appropriate for the crime, and noted the parties disagreed about the appropriate type of sanction.
At the sentencing hearing, the court had before it the sentencing statements, Dr. Michel's psychological evaluation, the probation report, letters submitted by Matias, and a letter submitted by SG's mother. The court also heard from SG, who described the substantial emotional injuries caused by Matias's crime. SG asserted that Matias's crime took away her "innocence" and her "carefree personality," and that she would never be the same. She said that she had been a virgin before the crime, and that the sexual assault resulted in her being depressed for several years. She said she "became such a bitter and angry person that nobody could recognize me from my previously bubbly self." She also described the strong negative effect the crime had on her family and friends. She concluded her statement by telling Matias that she was now putting her life back together, and therefore "I don't even need to see you go to prison. Just having you here today, I know that I won."
Over Matias's objections, the court also permitted SG's friend, HS, to speak. HS discussed how the crime caused substantial emotional pain to herself and to SG, and then spoke directly to Matias: "Mr. Matias, you are a selfish and immoral person. You said to me before I got off of the bus, 'She will be okay with me' or something to that effect. How dare you premeditate rape on a girl who could barely stand up. For what you have done, you have caused so much pain. I hope that you feel it back when you repay the years that were and will be taken away from [SG] as well as my own happiness in your years in prison."
After considering all of the evidence and arguments, the court found probation was not appropriate under the circumstances. The court stated: "The defendant appears to be somebody who, but for this, has led a good life. He's a hard worker. Counsel has made the argument that he's a good person but for this one bad act. [¶] But it is hard to believe that a good person would commit this one bad act. Given how vile it really is, the victim clearly was not... in a position where she could protect herself. She was vulnerable. The defendant was in a position—it was a violation of trust. She was on his bus. He was the driver; and, obviously, he took her to various areas in order to complete these acts. [¶] The lacerations and bruising of the vaginal area indicate that there was some degree of force used to complete the act. Therefore, this is not a probation case." The court also said that Dr. Michel and the probation officer "got it absolutely wrong," particularly given the physical and emotional injuries suffered by the victim, the violation of trust, and the vulnerability of the victim. The court told Matias "many lives have changed" because of his "selfish" acts. The court then imposed the middle term of six years.
DISCUSSION
As his sole appellate contention, Matias contends the court abused its discretion in denying him probation.
I. Applicable Law
Matias was statutorily eligible for probation, but the court had broad discretion to determine whether probation was appropriate in this case. (See People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530.) "Probation is an act of clemency that is granted only in the discretion of the judge." (People v. Read (1990) 221 Cal.App.3d 685, 689.)" 'The decision to grant or deny probation requires consideration of all the facts and circumstances of the case.'..." (People v. Weaver (2007) 149 Cal.App.4th 1301, 1312.) Rule 4.414 sets forth factors relevant to the trial court's decision, including factors relating to the crime and factors relating to the defendant.
Factors relating to the crime include: "(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism... ; and [¶] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime." (Rule 4.414(a).)
" 'The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of discretion.'... 'In reviewing [the determination] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order... is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' " (People v. Weaver, supra, 149 Cal.App.4th at p. 1311.)
II. Factors Supported Denial of Probation
The court denied probation for several reasons related to the circumstances of the crime, including the victim was in a highly vulnerable state; Matias took advantage of his position of trust; and Matias caused the victim to suffer physical and emotional injuries. These factors are proper considerations in the probation determination (Rule 4.414(a)(3)(4)(9)), and the evidence fully supported the applicability of these factors.
First, the evidence supported that SG was a vulnerable victim. She was a young woman alone on a bus after having passed out from drinking too much. "Victim '[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.' " (People v. Weaver, supra, 149 Cal.App.4th at p. 1314.) This definition certainly applies to SG in this case. Matias argues the victim's vulnerability was not a proper reason to deny probation because " 'vulnerability' due to intoxication" was an element of this offense. (Italics added.) (See People v. Parrott (1986) 179 Cal.App.3d 1119, 1124 [court cannot rely on element of offense to deny probation].) However, the evidence showed SG was particularly vulnerable not just because she was intoxicated, but because Matias had full control of the situation and obtained that control by lying to her friends and stating he would take care of her. Indeed, Matias had been hired specifically for the purpose of transporting college students to a party to ensure the students' safety. Under the circumstances, Matias's conduct in taking advantage of SG's vulnerability was particularly egregious. The court did not err in relying on the vulnerability factor.
Second, the evidence supported that Matias violated the trust of the students and the university. Matias affirmatively exploited his position as a bus driver to isolate a young unconscious college student and to engage in unconsented sex with her. This act constituted a violation of trust. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1145 [noting special relationship between bus driver and passengers requiring driver to take some action to protect passengers].)
Third, the evidence showed that SG suffered injuries from the crime. A medical examination the day after the assault revealed that SG had lacerations and bruises in her vaginal area. These injuries indicated that Matias used force to commit the crime. Contrary to Matias's contentions, the fact that these injuries were not permanent does not mean the court could not rely on them to determine probation was not a proper disposition. Additionally, SG's statement at the sentencing hearing made clear that she had suffered severe emotional injury, and Matias's crime also had a substantial detrimental affect on her family and friends. Under these circumstances, the court found Matias deserved a prison sentence. This conclusion was reasonable.
Citing People v. Ramirez, supra, 143 Cal.App.4th 1512, Matias argues this case was less serious than the typical sexual penetration with an intoxicated person crime, and therefore the factor set forth in Rule 4.414(a)(1) is not applicable. (See fn. 5, ante.) However, the court did not rely on this factor to reach its conclusion. In any event, the Ramirez case is not helpful to Matias's argument. In Ramirez, the defendant offered a 16-year-old victim a ride home, gave her tequila, and then had sexual intercourse with her after she passed out. (Ramirez, at pp. 1517-1518.) The victim suffered hemorrhaging and a hematoma from the assault. (Id. at pp. 1519-1520.) Under these circumstances, this court found the trial court did not abuse its discretion in finding probation was " 'not an acceptable alternative to prison....' " (Id. at p. 1531.)
The fact the Ramirez defendant used more force and coercion than did Matias does not mean Matias's crime was not also serious. The evidence showed Matias used his position as a bus driver to sexually assault SG and to conceal that assault by parking the bus somewhere between the fraternity party and the university campus. Further the evidence showed that Matias attempted to convince SG's friend to let her stay on the bus after the sexual assault, leading to a reasonable inference that Matias would have continued to sexually assault this young unconscious woman had SG's friend not intervened. As in Ramirez, this crime was more serious than "other instances of the same crime." (Rule 4.414(a)(1).)
III. Matias's Additional Arguments Are Without Merit
Matias alternatively contends that even if the evidence supported the existence of the aggravating factors, the court failed to appreciate that numerous factors relating to the defendant favored a grant of probation, including that Matias appeared remorseful, he did not have a prior criminal record, and the victim did not express any continuing fear of him. However, unless the record affirmatively shows otherwise, a court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation. (See Rule 4.409; People v. Weaver, supra, 149 Cal.App.4th at p. 1313.) Moreover, the record shows that the court was aware of several mitigating factors, including Matias's remorse and lack of criminal record, but found that the particular circumstances of the crime and seriousness of the offense outweighed these factors. The court did not abuse its discretion in reaching this conclusion.
Additionally, Matias's discussion of several additional "mitigating" facts is unsupported. For example, he states that SG "was acting provocatively and encouraged the sexual encounter," and that he did not plan the offense and instead the crime "was an opportunistic offense arising when he realized [SG], although affected by alcohol, was apparently amenable to a sexual encounter." These statements are unsupported by the record. The facts underlying the criminal charges to which Matias pled guilty do not show that SG did anything to trigger Matias's criminal conduct. Further, contrary to Matias's arguments, the record does not support that the court denied probation merely because the court believed he was not a "good person."
Matias also challenges various statements made by the court about the facts of the crime. However, viewed in context, these statements were appropriate. For example, Matias argues the court's statement that SG was not an "experienced drinker" was erroneous because SG admitted she frequently drank alcohol. This admission, however, does not necessarily show this young woman knew how to handle drinking alcoholic beverages. In any event, there is nothing in the court's remarks showing the level of SG's drinking experience affected the court's probation decision.
We also find unavailing Matias's argument that the court should have granted probation because the victim did not demand a prison sentence. Although the victim did not "demand" a prison sentence, she made clear that the sexual assault caused her to suffer substantial emotional injures for a lengthy period and that she was attempting to move on from the incident. Further, it is within the court's sole discretion to determine whether to grant probation, and the victim's testimony at the sentencing hearing is only one relevant factor for the court to consider. (See Rule 4.408(a).)
In a related argument, Matias contends the court erred by allowing the victim's friend, HS, to make a statement at the sentencing hearing. Citing section 1191.1, Matias contends only victims, parents or guardians, and next of kin are permitted to make statements. The argument is unsupported. "Court[s] [have] discretionary power to hear and consider additional witnesses if appropriate." (People v. Zikorus (1983) 150 Cal.App.3d 324, 332; see People v. Mockel (1990) 226 Cal.App.3d 581, 586.) HS's testimony at the sentencing hearing was proper, particularly because she was with the victim on the night the crime occurred and was a witness to relevant facts. Although HS's statements were understandably emotional, judges are frequently required to make sentencing choices in cases where emotions run high and the court was fully capable of putting the assertions into proper perspective.
Matias also argues the court abused its discretion because its probation denial was contrary to the recommendations of Dr. Michel and the probation officer. However, "[a] probation officer's report and recommendation are advisory only, [and are] aids to the sentencing court in its exercise of discretion in determining an appropriate disposition, and thus may be rejected in their entirety." (People v. Kronemyer (1987) 189 Cal.App.3d 314, 366; see § 1203.067.) The court specifically recognized that both the probation officer and psychological evaluator had recommended probation, but disagreed with their assessments. The court had a reasonable basis to reject the recommendations. Dr. Michel's recommendation was qualified by his observations that Matias's crime was "grossly inappropriate and exploitive," Matias had not fully accepted responsibility for the crime and continued to claim the victim initiated the sexual contact, and Matias was a sexual offender who requires "obvious negative legal consequences for his actions." Additionally, the probation officer appeared to rely primarily on Dr. Michel's ultimate conclusion without considering the reasons underlying that conclusion. The judge, who had considered the facts and circumstances of the crime, was entitled to disagree with the probation officer's assessment of Matias's ability to comply with probation, the need to impose strong punishment for his actions, and the degree of danger he presented to the community.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., IRION, J.
Factors relating to the defendant include: "(1) Prior record of criminal conduct... including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] (2) Prior performance on probation or parole and present probation or parole status; [¶] (3) Willingness to comply with the terms of probation; (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [¶] (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others." (Rule 4.414(b).)