Opinion
E065079
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. KATRINA TERRY HOVIE, Defendant and Appellant.
Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1406230) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Rodger P. Curnow, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
The appellate issues in this case relate exclusively to sentencing. Defendant Katrina Terry Hovie was convicted of, among other things, two counts of forcible sexual penetration (Pen. Code, § 289, subd. (a)) and sentenced to a total of 14 years in prison. She contends that the trial court abused its discretion by sentencing her to the upper term on the first such count. She further contends that the trial court erroneously believed that it was required to impose a full and consecutive sentence on the second such count.
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
Defendant and victim Jane Doe had a romantic and sexual relationship that lasted, off and on, for about six months.
At the preliminary hearing, the magistrate ordered that the victim be referred to in the record by this fictitious name. (See Pen. Code, § 293.5.)
On the night of December 20-21, 2014, defendant visited Doe at her home in Riverside. They were lying in bed together, talking, when defendant revealed that she had asked a male friend to rape her. According to Doe, she responded, "[Y]ou shouldn't have come . . . . It's over." According to defendant, Doe responded, "You're always going to be a pervert."
Doe's remark made defendant angry. Defendant got on top of Doe, choked her, and tied her wrists with a belt. Defendant also repeatedly stuck her fingers into Doe's vagina. When Doe called out to her mother, defendant put a pillow over her face, then put a scarf with a knot in it into her mouth.
Doe kept telling defendant to stop. She tried to appeal to defendant's better nature. Eventually, she "talked [defendant] out of it." Defendant started crying; she said "she's such a horrible person, and she can't believe she did that, and she's sorry, and she loved [Doe]."
Doe drove defendant home. When they got there, however, defendant would not get out of the car. Doe said she was going to call the police. According to defendant, she replied, "[A]ll right. . . . I need to tell them what I did." When the police responded, defendant said she wanted to turn herself in and admitted that she "raped" Doe.
Defendant told the police and later testified that, when the crime occurred, she was coming down after having used methamphetamine about 10 hours earlier. A test of her blood was consistent with this. Defendant also testified that her "mind was blank" and she was not "able to stop [her]self . . . ." According to an expert, methamphetamine can cause "aggression and agitation."
II
PROCEDURAL BACKGROUND
The original information charged defendant with forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)) (count 1) and domestic violence (Pen. Code, § 273.5, subd. (a)) (count 2). In connection with the sexual offense, there was an allegation of tying and binding under the One-Strike Law. (Pen. Code, § 667.61, subd. (e)(5).) This meant that defendant was exposed to a sentence of 15 years to life. (Id., subd. (b).)
During plea negotiations, the People amended the information, deleting the tying and binding allegation, but adding two more counts of forcible sexual penetration (counts 3 and 4) and one count of forcible false imprisonment (Pen. Code, §§ 236, 237, subd. (a)) (count 5).
After a trial, a jury found defendant:
Count 1: Not guilty of forcible sexual penetration, but guilty of the lesser included offense of simple assault. (Pen. Code, § 242.)
Count 2: Not guilty of domestic violence, but guilty of the lesser included offense of domestic battery. (Pen. Code, § 243, subd. (e)(l).)
Count 3: Guilty of forcible sexual penetration.
Count 4: Guilty of forcible sexual penetration.
Count 5: Not guilty.
Defendant was sentenced to a total term of 14 years in prison, along with the usual fines, fees, and miscellaneous sentencing orders.
III
SENTENCING ISSUES
A. Additional Factual and Procedural Background.
According to defendant's statement to the probation officer, she had had a "very chaotic" childhood. She had been removed from her biological family when she was two, due to domestic violence, and placed with a foster family, which later adopted her. While she was between the ages of seven and ten, her adoptive older brother repeatedly forced her to have sex with him. After he left home, she reported the molestation to her adoptive mother, who responded by hitting, beating, and otherwise physically abusing defendant. Eventually, defendant was removed from her adoptive family and placed with her older biological sister.
At the time of sentencing, defendant was 23. She had a history of "anger outbursts" and violent behavior, dating back to when she was four. She had been using alcohol since she was 11, marijuana since she was 13, and methamphetamine since she was 15. She had never obtained any substance abuse treatment.
Judge Philip J. Argento had presided over the trial. However, he was due to go on vacation, and rather than waive time for sentencing, defendant waived any objection to being sentenced by a different judge.
Judge Becky Dugan presided over the sentencing hearing. She indicated that she had read the probation report and had conferred with both counsel in chambers. Defense counsel requested probation or, alternatively, the low term, based on defendant's youth and her lack of a "significant" criminal history.
Defendant and the trial court then had this discussion:
"THE COURT: Ms. Hovie, you're a strange girl. You know, I've had you in my court for a number of months.
"THE DEFENDANT: Yes.
"THE COURT: You confessed to the crime from the beginning, said you wanted to take responsibility for it. . . . [¶] . . . [¶] . . . I don't think you've ever really accepted responsibility for it. What you've done is say, 'I'm a victim. I've had a terrible life, and because of my terrible life I did this terrible thing, and while it's terrible, I'm still going to make the victim come to court and testify in front of 12 strangers.'
"That's not really accepting of responsibility. Your attorney got you just a terrific result. I hope you appreciate his hard work. But the case is outrageously bad as far as the damage to the victim in this case.
"THE DEFENDANT: I mean, Your Honor, I actually went to trial so there would be a sense of understanding.
"THE COURT: To who of what?
"THE DEFENDANT: The whole incident, the leading up to the incident, to her not respecting me when I said I didn't want to go to her house that evening. I mean, you guys see it through a straw. You know, there's a lot that led up to the incident.
"THE COURT: Nothing, nothing that led up to the incident, nothing, explains your conduct. That's what I'm saying, that you paint yourself as a victim . . . . [¶] . . . [¶]
"Did you have a great childhood? No. Did you have crappy parents? Yes. But many, many, many people have and they don't act out in the way that you acted out.
"THE DEFENDANT: Oh, I beg to differ.
"THE COURT: You beg to differ?
"THE DEFENDANT: A lot of individuals act out until they get that help that they need.
"THE COURT: Why haven't you got it, Ms. Hovie? You're the person that can get it.
"THE DEFENDANT: I'm still young. . . . I apologize that I didn't have somebody to grab my hand and lead me. I was trying to find a way out."
Defendant continued:
"THE DEFENDANT: . . . I'm begging for your mercy to put me in a program that will provide me with the help I need. Prison is not going to help me.
"THE COURT: No that's not true. State prison now has numerous programs.
"THE DEFENDANT: No.
"THE COURT: You're going to take advantage of all of them.
"THE DEFENDANT: You're taking an individual that's trying to place herself outside. You say it's an aggressive history and you're placing the individual into an environment of just pure aggression. I mean, dude — I apologize for calling you dude, but you're really
"THE COURT: Sometimes, Ms. Hovie, it's about punishment. It's about punishment. And there is lots of programming there, lots and lots of it, . . . lots of help while you're in and lots of help when you get out. And it's up to you to take advantage of it."
The trial court found that defendant was not eligible for probation. It further found "lots of factors in aggravation." It specifically listed:
1. "[C]overing her mouth so she couldn't cry out for help, and having her isolated in an unsafe position . . . ." (See Cal. Rules of Court, rule 4.421(a)(3) [victim was particularly vulnerable].)
2. "[W]hile you described that you 'snapped,' . . . when you consider how long it lasted and how your conduct repeated itself over the course of time, that's not snapping. That's making a plan and carrying out your plan." (See Cal. Rules of Court, rule 4.421(a)(8) [planning].)
3. "[I]t's an abuse of position of trust. . . . [I]t was a person you loved. What could you do to a person you don't love?" (See Cal. Rules of Court, rule 4.421(a)(11) [taking advantage of a position of trust].)
4. "Your juvenile record is just — it takes two pages to print it. As an adult, though, you just went right from juvenile to adulthood with a [vandalism conviction]. It was a misdemeanor, but it's the same kind of angry conduct, damaging property of somebody else . . . ." (See Cal. Rules of Court, rule 4.421(b)(2) [numerous prior convictions or juvenile adjudications].)
5. "How you covered her face with a pillow, how she couldn't scream, how you had plenty of time to stop and reflect between your actions and still carried them out. Those are all factors in aggravation." (See Cal. Rules of Court, rule 4.408(a) [other criteria reasonably related to the decision being made].)
6. "[Y]ou really don't accept responsibility for your conduct. You feel sort of . . . bad, but mostly you view yourself as a victim. I find that a factor in aggravation." (See Cal. Rules of Court, rule 4.408(a), supra.)
On count 3 (forcible sexual penetration), the principal count, the trial court imposed the upper term of eight years. On count 4 (forcible sexual penetration), it imposed the midterm of six years (the midterm). It added, "And the six years is full and consecutive as required by law." On count 1 (battery) and count 2 (domestic battery), it imposed terms of 180 days, to be served concurrently.
B. The Imposition of the Upper Term.
Defendant contends that the trial court abused its discretion by sentencing her to the upper term on count 3 (forcible sexual penetration).
1. Forfeiture.
Preliminarily, the People respond that defendant forfeited this contention by failing to raise it below.
"In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 351.) This "waiver doctrine . . . appl[ies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Id. at p. 353.) Such discretionary sentencing choices "include the decision . . . to impose the lower or upper term instead of the middle term of imprisonment . . . ." (Id. at p. 349.)
Here, defense counsel did not raise any of defendant's present arguments below; thus, they have been forfeited.
Defendant claims that defense counsel's request for the low term was sufficient to preserve these arguments. Not so. Defense counsel argued that defendant's youth and supposedly minimal criminal history militated in favor of the low term. However, after the trial court explained its reasons for imposing the upper term, he did not assert that they were erroneous. To put it another way, he urged the trial court to exercise its discretion in favor of the low term, but he did not argue that the upper term would be an abuse of discretion. Defendant relies heavily on the trial court's statement of reasons, arguing that it reveals flawed reasoning, but defense counsel did not object or raise any such argument at the time.
Defendant also argues that the asserted error resulted in an unauthorized sentence. "[T]he 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]" (People v. Scott, supra, 9 Cal.4th at p. 354.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.) This exception does not apply to "sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Ibid.) Here, defendant argues that the trial court's reasons for imposing the upper term were unsound; she does not argue that it could not impose the upper term at all.
2. Merits.
Even aside from forfeiture, we also reject this contention on the merits.
The statutorily prescribed punishment for forcible sexual penetration is three, six, or eight years. (Pen. Code, § 289, subd. (a)(1)(A).) "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (Pen. Code, § 1170, subd. (b).) "Selection of the upper term is justified only if circumstances in aggravation are established by a preponderance of evidence and outweigh circumstances in mitigation." (People v. Wright (1982) 30 Cal.3d 705, 710.)
"Sentencing decisions are reviewed for abuse of discretion. [Citations.] Under this standard, a trial court's exercise of discretion will not be disturbed unless the trial court exercised it in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (People v. Gibson (2016) 2 Cal.App.5th 315, 325.)
Defendant claims that the trial court disregarded several applicable mitigating factors. However, "[a] trial court may minimize or even entirely disregard mitigating factors without stating its reasons. [Citations.]" (People v. Salazar (1983) 144 Cal.App.3d 799, 813.)
First, defendant argues that her abusive childhood, including a history of sexual molestation, should have been treated as mitigating, but instead the trial court "turned [it] against her . . . ." The trial court, however, expressly acknowledged defendant's abusive childhood; it simply found that it did not significantly reduce her culpability. Particularly in light of the numerous aggravating factors, this was not arbitrary, capricious, or patently absurd.
Next, defendant argues that her methamphetamine addiction was mitigating. However, "'drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.' [Citation.]" (People v. Cuevas (2001) 89 Cal.App.4th 689, 704.) Defendant had been using methamphetamine for approximately eight years — over a third of her life — and had never availed herself of any substance abuse treatment.
Defendant also argues that her "minimal criminal history" was mitigating. Given that defendant was only 23, however, her criminal history was actually quite alarming. Starting at the age of 14, she racked up nine juvenile adjudications and one adult conviction. Moreover, contrary to her claim of a "lack of previous violent crimes," six of these were for battery, including one for battery on a peace officer and one for battery with serious bodily injury.
Finally, defendant argues that the trial court erroneously disregarded her prompt admissions of responsibility. Once again, however, the trial court acknowledged that she had "confessed to the crime from the beginning . . . ." As it explained, however, while defendant did admit committing the criminal acts, she did not genuinely admit moral responsibility for them; instead, she blamed her background, she blamed methamphetamine, and she blamed the victim.
In sum, then, the trial court reasonably could and did discount all of the mitigating factors that defendant cites.
Defendant complains about the trial court's remark, "You're a strange girl. . . . I've had you in my court for a number of months." Defendant labels it "unseemly"; she speculates that the trial court "may have based its exercise of sentencing discretion on the basis of unidentified other courtroom proceedings the judge had with Ms. Hovie which had nothing to do with this case." However, she does not actually raise any claim of error based on this remark.
If only out of an excess of caution, then, we note that there was no such error. Judge Dugan had, in fact, presided over pretrial proceedings in this case about a month and a half earlier; as far as this record shows, she had not presided over any other case involving defendant. But regardless of which proceedings she was referring to, there was no indication that they influenced her decision in any way.
Defendant similarly complains about the fact that she was sentenced by a judge who had not presided over the trial. Once again, however, she does not raise this as a claim of error. As she acknowledges, "it is not error for a judge other than the one who tried a criminal case to pronounce judgment and sentence." (People v. Downer (1962) 57 Cal.2d 800, 816; accord, People v. Jacobs (2007) 156 Cal.App.4th 728, 733.) Also, she voluntarily consented to this procedure.
C. The Imposition of a Full Consecutive Term.
Defendant contends that the trial court erroneously believed it was required to impose a full and consecutive sentence on count 4 (forcible sexual penetration).
Under Penal Code section 667.6, subdivision (d):
"A full, separate, and consecutive term shall be imposed for [specified sexual offenses, including forcible sexual penetration] if the crimes involve separate victims or involve the same victim on separate occasions.
"In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior."
Here, the trial court specifically found that defendant "had plenty of time to stop and reflect between [her] actions and still carried them out." It therefore found that a full consecutive term was "required by law." "Once a trial judge has found . . . that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior. [Citations.]" (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
In discussing the relevant evidence, both sides cite to the trial transcript. It must be remembered, however, that Judge Dugan did not preside over the trial. She stated that she had read the probation report and had conferred with the attorneys in chambers. Neither side objected to her sentencing defendant based on this information. We therefore confine our review to the information in the probation report.
It is arguable that defendant has forfeited this contention entirely by failing to provide us with an adequate record. (See People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) We have no idea of what was said in the chambers conference. For all we know, the attorneys made factual representations; if so, the trial court would have been entitled to rely on them. (People v. Mroczko (1983) 35 Cal.3d 86, 112, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) --------
The probation report stated: "The defendant . . . used her fingers to aggressively penetrate the victim's vagina. The victim screamed, 'No! Stop!' The defendant then put her hands around the victim's throat and 'choked' her for approximately ten seconds. . . . The defendant continued to digitally penetrate the victim. The victim yelled for her mother, at which point the victim continued to scream. The defendant then tried to 'stuff' a scarf in the victim's mouth. The victim reported the incident lasted approximately one hour." It also noted that defendant "admitted to putting a pillow over the victim's face and attempt[ing] to prevent her from screaming by putting a scarf in her mouth."
The case most closely on point is People v. King (2010) 183 Cal.App.4th 1281. There, the defendant inserted his fingers into the victim's vagina. When the lights of a car went by, he took his fingers out, looked around, and looked "uneasy"; he then reinserted his fingers. (Id. at pp. 1290, 1325.) The trial court found that, when the defendant saw the lights, "'[h]e could have stopped at that point. This was the opportunity giving [him] the opportunity to reflect about his actions.'" (Id. at p. 1325.) The appellate court sustained this finding. It noted, "A finding that the defendant committed the sex crimes on separate occasions 'does not require a change in location or an obvious break in the perpetrator's behavior.' [Citation.]" (Ibid.)
Here, there were two distinct interruptions in the sexual assaults — the first when Doe screamed, "No! Stop!" and defendant choked her, and the second when Doe yelled for her mother and defendant silenced her with a pillow and a scarf. These interruptions must have lasted at least as long as the interruption in King, which the court characterized as "momentar[y]." (People v. King, supra, 183 Cal.App.4th at p. 1325.) Moreover, unlike in King, defendant did not merely halt her sexually assaultive conduct; rather, she shifted to nonsexually assaultive conduct. Each time, she increased her control of the victim before resuming her sexually assaultive conduct. Thus, a reasonable trier of fact could have decided that defendant had a reasonable opportunity for reflection.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
SLOUGH
J.