Opinion
F040301.
10-22-2003
THE PEOPLE, Plaintiff and Respondent, v. CURTIS LYNN MENDEL, Defendant and Appellant.
Tara Selver, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Wiseman, A.P.J., Levy, J., and Cornell, J.
A jury convicted appellant, Curtis Lynn Mendel, of unlawful intercourse with a minor under the age of 16 (Pen. Code, § 261.5, subd. (d)). On March 18, 2002, the court sentenced Mendel to an aggregate term of five years. On appeal, Mendel contends: 1) the court erred in imposing the aggravated term; and 2) he was denied the effective assistance of counsel. We will affirm.
All further statutory references are to the Penal Code.
FACTS
In August or early September 2001, 15-year-old Jennifer H. called 44-year-old Mendel in response to an ad for a singer Mendel placed in the Pennysaver. Over the course of the next several weeks, Jennifer and Mendel spoke on the telephone 10 to 11 times, for hours at a time. On one occasion, Mendel told Jennifer that he wanted her to be his girlfriend.
Around September 16, 2001, Mendel and Jennifer devised a plan to meet on Friday September 21, 2001, and for Jennifer to spend the night at Mendels house in Rosamond. The plan involved Mendel checking Jennifer out of school on Friday September 21, 2001, by pretending to be her best friends older brother. Mendel would then take Jennifer to his house to spend the night. Jennifer would tell her mother that she was going to spending that night at her best friends house and that her friends brother would sign her out of school that day. Also, in order to facilitate his meeting with Jennifer, Mendel spoke with Jennifers mother pretending to be Jennifers best friends brother.
On Friday September 21, 2001, Mendel picked up Jennifer at her school as planned and took her to his home, which was approximately an hours drive away from Jennifers home in Lake Los Angeles. Mendel and Jennifer initially sat in his living room. However, after she drank two and a half wine coolers, they went into Mendels bedroom. Mendel asked Jennifer to take off her clothes but she refused because she felt uncomfortable. They then returned to the living room where they watched a pornographic video for two hours. After talking for another hour and a half, Mendel and Jennifer went back into the bedroom and he asked Jennifer again to take off her clothes. This time Jennifer took off her clothes and she and Mendel engaged in consensual intercourse. The following morning Mendel had intercourse with Jennifer again before taking her home.
Mendel was arrested the following week after the Jennifer told her mother that she had intercourse with him.
Mendels probation report noted as a mitigating circumstance that Mendel did not have any known criminal record. As an aggravating circumstance, it found that the manner in which the crime was carried out indicated planning and professionalism in that Mendel misrepresented himself to the victims mother in order to obtain consent to remove her from school, he checked the victim out of school and drove her to his home where he provided her with alcohol and encouraged her to view a pornographic movie, and he photographed her with a "web cam."
The probation report recommended against a grant of probation based on the planning involved in the instant offenses and the age disparity of almost 30 years between Mendel and the victim.
On March 18, 2002, the court denied Mendel probation referring several times to the lasting impact of Mendels offenses on the victim and the substantial age difference between Mendel and the victim. The court then sentenced Mendel to the aggravated term of four years on count one and a consecutive one-year term on count 2. In imposing the aggravated term, the court stated that it was taking into consideration the aggravating factors outlined in the probation report.
DISCUSSION
Imposition of the Aggravated Term
Penal Code section 261.5, subdivision (a) makes it unlawful to have sexual intercourse with a person under the age of 18 years. Subdivision (d) of this section provides: "Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years."
Mendel contends that because the age difference between him and his victim is an element of his offenses, the court improperly relied on this age difference to impose the aggravated term. He further contends that the court improperly relied on the trauma to the victim to impose the aggravated term because there is no evidence in the record that the victim suffered any emotional trauma because of his offenses. Thus, according to Mendel, the court erred when it imposed the aggravated term on count 1. We will reject these contentions.
Preliminarily we note that the courts comments indicate that it relied on the disparity between Mendels age and his victims age as well as the trauma to the victim to deny Mendel probation, not to impose the aggravated term. Nevertheless, we will find that court acted within its discretion in using the trauma to the victim and the age disparity to deny probation or to impose the aggravated term.
In People v. Bouzas (1991) 53 Cal.3d 467, 480, the Supreme Court found that the prior conviction required to elevate a petty theft to a felony pursuant to section 666 was a sentencing factor and not an element of a violation of this section. (Id. at p. 480.) Here, the offense proscribed by section 261.5 is sexual intercourse with a person under the age of 18. (§ 261, subd. (a).) However, subdivision (d) of this section provides for enhanced punishment if the perpetrator is over 21 years of age and the victim is under the age of 16. (§ 261.5, subd. (d).) Thus, like the prior, theft-related conviction required to raise a petty theft to a felony, the age of the perpetrator and the age of the victim also appear to be sentencing factors and not elements of the offense proscribed by section 261.5. Nevertheless, even assuming that an age difference of six years between the perpetrator and the victim is an element of Mendels offenses, we find that the court did not err in relying on the substantial age disparity between Mendel and his victim to deny him probation and/or to impose the aggravated term.
"Generally, determination of the appropriate term is within the trial courts broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation.] `Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in qualitative as well as quantitative terms. [Citation.] One factor alone may warrant imposition of the upper term [citation] and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation [citation]." (People v. Lamb (988) 206 Cal.App.3d 397, 401.)
"A fact that is an element of the crime shall not be used to impose the upper term." (Cal. Rules of Court, rule 4.420(d).) There is also authority for the proposition that a fact that is an element of an offense shall not be used to deny probation. (People v . Parrott (1986) 179 Cal.App.3d 1119, 1124-1125, but cf. People v. Nobleton (1995) 38 Cal.App.4th 76, 82 .) However, factors may be used to aggravate when they have the effect of "making the offense distinctively worse than the ordinary." (People v. Moreno (1982) 128 Cal.App.3d 103, 110.)
Here, the statute under which he was prosecuted required only that Mendel be 21 years old and the victim 16 years old or younger. (Pen. Code, § 261.5, subd. (d).) Further, the court could reasonably find that the extreme age disparity of almost 30 years between Mendel and his victim made Mendels offenses distinctively worse than the ordinary. Thus, the record supports the courts use of this age disparity to deny Mendel probation and/or to impose the aggravated term. (Cf. People v. Garcia (1995) 32 Cal.App.4th 1756, 1775; People v. Ramos (1980) 106 Cal.App.3d at pp. 601-602; People v. Cortez (1980) 103 Cal.App.3d 491, 496.)
We also find that the record contains substantial evidence supporting the courts reliance on the trauma to the victim to deny probation and/or impose the aggravated term. The record does not contain any direct evidence that Mendels victim suffered any emotional trauma from Mendels assault. However, the court could reasonably find from the nature of the assaults that a victim of two separate sexual assaults would be emotionally traumatized. Further, Mendel was almost thirty years older than the victim, the victim was only 15 years old and a virgin when the assaults occurred, Mendel exploited her desire to be a singer to lure her to his house, and he seduced her by providing her with alcoholic beverages. The court could reasonably conclude from these circumstances that the manner in which Mendel exploited the sexually inexperienced victim twice resulted in severe emotional trauma to her.
In response to respondents assertion that no sentencing error occurred because the planning and sophistication justified the upper term, Mendel contends that the record does not support the courts reliance on this factor because the planning was done by the victim. We disagree.
It appears from the probation report that the victim concocted the idea of telling her mother she would be spending the night at a friends house and having Mendel check her out of school by pretending to be her friends brother. Nevertheless, Mendel went along with these aspects of the scheme that ultimately resulted in the victim going to Mendels house. More importantly, however, Mendel demonstrated a substantial degree of self-initiated planning and sophistication by, among other things, using an ad for a singer to find the victim, calling her numerous times to gain her confidence, and using alcoholic beverages and a pornographic video to confuse the victim and lower her resistance to his sexual advances. These circumstances alone support the courts finding of an aggravating circumstance based on the planning and sophistication of Mendels offenses. Accordingly, we find that the court did not abuse its discretion when it imposed the aggravated term.
The Ineffective Assistance of Counsel Claim
Mendel contends his counsel was ineffective because he did not allow him to testify and he failed to investigate and present a viable defense. We reject this contention.
"To prevail on [an ineffective assistance of counsel claim], defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been different. [Citation.] Because we are limited to the record on appeal, if the record sheds no light on why counsel acted or failed to act in the manner challenged, then unless counsel were asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, we must reject the contention that counsel provided ineffective assistance. [Citation.]" (People v. Farnam (2002) 28 Cal.4th 107, 201.)
A defendant has an absolute right to testify at his trial even over the objection of his defense counsel. (People v. Robles (1970) 2 Cal.3d 205, 215.) However, the record here does not shed any light on whether trial counsel dissuaded Mendel from testifying and, if so, why he did. Nor does the record shed any light on whether defense counsel investigated any potential defenses for Mendel or why he chose not present them to the jury. Thus, in accord with Farnam we reject Mendels ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.