Opinion
B305367
06-29-2021
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ROBERT DIIORIO, Defendant and Appellant.
Joseph L. Ryan, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SA097242 Upinder S. Kalra, Judge. Affirmed with directions.
Joseph L. Ryan, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, P. J.
In August 2017, defendant Justin Robert Diiorio was convicted by plea of rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)) and placed on three years probation. In March 2019, the trial court found that he had violated conditions of his probation, revoked his probation, and sentenced him to eight years in prison. Defendant appealed.
Unless otherwise specified, statutory references are to the Penal Code.
We appointed counsel for defendant. Counsel informed defendant of counsel's intention to file a brief that does not identify any arguable issues and of defendant's right to file a supplemental brief. We also informed defendant of his right to submit a supplemental brief or letter stating any grounds for an appeal, or contentions, or arguments he wishes this court to consider.
Pursuant to defendant's request, counsel did not send to defendant copies of the record on appeal or a copy of counsel's brief to defendant; instead, at defendant's request, counsel sent these items to defendant's mother at an address defendant provided.
Defendant's counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues on appeal and requesting that we independently review the record to determine if the lower court committed any error. Defendant did not file a supplemental brief or otherwise inform us of any potential issues for us to consider.
We have reviewed the record and, finding no arguable issues, affirm the judgment. We do, however, direct the trial court to prepare an amended abstract of judgment to correct a clerical error.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
In September 2016, defendant was charged by information with rape by use of drugs (count 1; § 261, subd. (a)(3)); rape of an unconscious person (count 2; § 261, subd. (a)(4)); sexual penetration of a minor by foreign object (count 3; § 289, subd. (h)), and possession of child pornography (count 4; § 311.11, subd. (a)).
In August 2017, defendant pled guilty to count 2 (rape of an unconscious person) and the court granted the prosecution's motion to dismiss the remaining counts. The court suspended the imposition of sentence and placed defendant on probation for three years. Among other terms and conditions of his probation, defendant was required to serve 364 days in county jail, comply with a protective order prohibiting him from coming within 100 yards of specified persons, including S.M., not “contact[ing] or attempt[ing] to contact the victim(s), ” and not possess or use controlled substances. The court also imposed certain fines and fees (see §§ 290.3, 1202.4, 1465.8; Gov. Code, § 70373, subd. (a)(1)), and ordered defendant to register as a sex offender (§ 290).
In October 2017, defendant admitted a probation violation and the court found he had violated probation. The court reinstated probation on the further condition that defendant serve an additional 90 days in county jail.
In February 2018, the Orange County Superior Court transferred defendant's probation case to the Los Angeles County Superior Court.
In November 2018, defendant's probation officer received information indicating that defendant had recently interacted with S.M. The probation officer conducted an investigation and, in January 2019, filed in the superior court a report stating that defendant may be in violation of several conditions of probation, including the proscriptions against contacting or coming within 100 yards of persons named in a protective order.
Although our record is not entirely clear, it appears that S.M. was not the victim of the rape to which defendant pled guilty. Rather, it appears that defendant was in possession of a phone containing electronically stored nude pictures of S.M.-then a minor. Although such possession was alleged in count 4 of the amended information filed in September 2016, the court dismissed that count in connection with defendant's guilty plea on the rape charge. According to the trial court in the probation revocation proceeding, defendant committed the rape against his 16-year-old stepsister.
Based on the probation officer's report, the court summarily revoked defendant's probation and set a formal probation violation hearing. The hearing was held on three dates in February and March 2019.
A. The Prosecution Case
S.M. testified to the following.
Defendant and S.M.'s older sister had been in a relationship for six years, and S.M. viewed defendant as her “big brother.” Although defendant's protective order prohibited him from having contact with S.M., she and defendant had “hung out” together about five or six times during the 15 months since the protective order was issued.
On the eve of her 20th birthday in November 2018, defendant texted messages to S.M. and called her on her phone. Defendant invited S.M. “to go out, have fun, [and] drink, ” for her birthday. She agreed. Defendant picked up S.M. and the two bought food at a restaurant and went back to defendant's house. They arrived at his home between 8:00 and 9:00 in the evening. They drank alcohol and ingested cocaine and Adderall, which defendant supplied.
Meanwhile, S.M. was receiving calls and text messages from her older sister, who wanted to know where S.M. was. S.M. told defendant that her sister was looking for her. Defendant then drove S.M. to meet S.M.'s friend, Brian. S.M. stayed with Brian until about midnight, when Brian drove S.M. to a gas station where defendant picked her up. Defendant took S.M. back to his home, where the two drank and used more cocaine and Adderall. They stayed up all night. At about 10:00 the next morning they went to a liquor store for cigarettes and then to a bar. There, S.M. drank three or four shots of liquor.
S.M. had no recollection of leaving the bar. The next thing she remembered she was waking up in defendant's bedroom at about 7:30 or 8:00 p.m. as her sister was beating on the locked door. Defendant was lying on the bed next to her and her clothes and “things” were scattered around the floor. She was wearing her underwear and defendant's boxer shorts. Defendant gathered up S.M.'s belongings into her backpack, gave the backpack to S.M. and directed her to the garage where she hid for about 30 minutes. She then ran from the house and obtained a ride to her home.
The parties stipulated that a urine sample taken from S.M. on November 12, 2018, tested positive for cocaine and amphetamine.
B. The Defense Case
Defendant testified as follows.
On November 10, 2018, S.M. called defendant and said she had an argument with her sister and had nowhere to stay. S.M. had previously told defendant that the restraining order against him had been “removed.” Defendant allowed her to come to his home. Defendant picked up S.M. and brought her to his house. They ate food, watched movies, and “hung out” at the house that night. S.M. brought a “bottle of Jameson” with her. He did not use drugs and there were none in the house that night. During the evening, S.M. received threatening text messages from her sister. Defendant drove her to meet with a friend, and later picked her up again and brought her back to his house. S.M. made drinks for herself with the Jameson whiskey, while defendant and a friend drank beer.
The next morning, which was S.M.'s birthday, defendant and S.M. went to a liquor store to get cigarettes. A man in the store informed them it was also his birthday and invited them to a bar across the street. S.M. and the man from the liquor store “drank shots, ” while defendant had a beer. After defendant and S.M. returned to defendant's house, S.M. went into the bathroom and defendant went to bed. S.M. woke him up six or seven hours later after S.M.'s sister and father broke into defendant's house and began “banging” and “screaming.” Defendant called his mother and the police. The police searched the house without finding any drugs or alcohol.
Defendant's mother testified that she went to defendant's house on November 11, 2018 in response to defendant's call. S.M.'s sister and father and police officers were at the house. She went inside the house and did not see any bottles of alcohol or drug paraphernalia.
C. The Court's Ruling
The court ruled that defendant willfully violated the conditions of probation that prohibited him from disobeying the protective order and from coming within 100 yards of a person identified in the protecting order-namely, S.M. The court based its conclusions in part on the witnesses' credibility: The court found S.M. to be “credible” and defendant “incredible, ” “manipulative, ” and “dishonest.”
The court revoked defendant's probation and sentenced him on the rape conviction to the upper term of eight years in prison. (§ 264, subd. (a).) The court selected the upper term because the victim of the rape was a 16-year-old unconscious stepsister of the defendant who had been placed in defendant's care by his parents; the defendant thus took advantage of a position of trust and the victim was particularly vulnerable. (See Cal. Rules of Court, rule 4.421(a)(3) & (11).)
The court, citing People v. Dueñas (2019) 30 Cal.App.5th 1157, ordered that fines previously imposed be “waived” pending proof by the People that defendant has the ability to pay them.
Contrary to the court's sentencing order, which requires defendant serve his sentence in prison, the abstract of judgment provides that defendant shall serve his sentence in county jail pursuant to section 1170, subdivision (h)(1) or (h)(2).
DISCUSSION
Rape is a serious felony as defined in section 1192.7, subdivision (c), and a crime that requires the defendant to register as a sex offender under section 290, subdivision (c). As such, a person convicted of rape must serve his sentence in prison, not county jail. (§§ 264, subd. (a), 1170, subd. (h)(3).) The judgment, reflected in the transcript of the sentencing hearing and the minute order of that hearing, correctly provides that defendant shall serve his sentence in prison. The abstract of judgment, however, erroneously states that defendant shall serve his sentence in county jail. The error is a clerical error, which a court has the power to correct on its own motion. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct the trial court to make that correction.
We have reviewed the record and, with the correction of the abstract of judgment as directed, no arguable appellate issue exists. (Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th 106, 110.)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect that defendant shall serve his sentence in state prison and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: CHANEY, J., FEDERMAN, J. [*]
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.