Opinion
A102660.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. MARIO A. IRIAS, Defendant and Appellant.
In this second appeal, Mario A. Irias appeals a judgment sentencing him again to 16 years in state prison, which was imposed in a resentencing hearing ordered by our decision in the prior appeal. (People v. Irias (Jan. 31, 2003, A095796) [nonpub. opn.].) We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
The procedural and factual background was set forth in detail in our previous opinion and may be briefly reviewed here. An information filed in Alameda County charged appellant with engaging in three or more acts of substantial sexual conduct with a child under the age of 14 in violation of Penal Code section 288.5. When the matter came up for trial, the jury first deadlocked and the court declared a mistrial. A second trial led to appellants conviction.
The evidence revealed that appellant, an immigrant from Honduras, began living with Maria A. in 1995 and married her three years later. Marias daughter, Wendy, was five years old when appellant joined the household. In 1997, Maria was told by Wendy that appellant touched her. She confronted appellant who denied doing so and left the house for a week. Later, Maria repeatedly asked her daughter about inappropriate touching but Wendy denied that it occurred.
A close friend, Aridel F., had a daughter Wendys age and shared childcare duties with Maria. In 1996 or 1997, she also received a report through her daughter that appellant touched Wendy in an inappropriate way. The girls were then six years old. Aridel took no action on this first report of abuse, but in 1998 she asked Wendy if her stepfather continued to touch her. When the child tearfully responded in the affirmative, she called the childs school without giving her name. An officer of the Oakland Unified School District Police Department investigated the report but found no evidence of abuse.
About a year later, Aridel spoke with the childs aunt, Marlane, about the reported abuse and the two women decided to take the child to a clinic for examination without the mothers knowledge. On December 21, 1999, they picked the child up from school and took her to the Eastmont Health Center, where she was seen by a nurse practitioner. After talking to the child in private, the nurse practitioner reported possible sexual abuse to Child Protective Services and referred the child for a medical examination at Childrens Hospital.
An emergency response worker in Child Protective Services, Audra Dunning, soon arrived at the clinic and interviewed the two women and the child. Dunning then called the Oakland Police Department. A police officer responded to the call and spoke to Wendy in the presence of Dunning. On the basis of this interview, Dunning assumed protective custody of the child and took her alone to Childrens Hospital for an examination.
At Childrens Hospital, Wendy was examined by a doctor in the emergency room, who testified that the child displayed "an abnormal hymen" and referred her to a specialist, Dr. James Crawford, at the Child Protection Clinic. Dunning arranged to have Wendy placed in a foster home after the examination, while the police contacted her mother. The next day, Wendy was interviewed again and a dependency petition was filed.
On January 20, 2000, Dr. Crawford examined Wendy with an instrument that provided light, magnification and a camera to document the examination. He found that a section of her hymen provided "clear evidence" that something had "penetrated into her vagina, tore the tissue and caused the injury." He could not specify precisely how the injury occurred but he stated it was "not the type of injury that you see through normal activities."
At trial, Wendy testified that appellant first touched her when she was five and a half. After a friends birthday party, she fell asleep and he carried her to her mothers bed, lifted her shirt, and touched her private part. She said it happened "a lot" after that time, but in response to further questions she appeared to say it was not a frequent occurrence. Appellant did not touch her for a year after the first incident; he touched her "more than four" times in 1997, three or four times in 1998, and the last time during the week before Christmas in 1999. He would "always" touch her in the early morning after her mother had left for work; he would come into her room, lie down in her bed, pull off her pants, and touch her.
Taking the stand in his own defense, appellant denied ever touching the child inappropriately.
At a sentencing hearing on July 24, 2001, the trial court imposed the upper term of 16 years in state prison. In his statement of reasons for imposing the sentence, the court stressed appellants lack of remorse but also mentioned other factors, i.e., "the relationship between the defendant and the victim, the age of the victim, the violation of trust," and the emotional impact on the victim. With regard to the latter factor, the court observed, "[I]ts not something that, even with the best counseling and most hopeful prognosis going forward, that anybody is ever going to forget or completely overcome." In the prior appeal, we affirmed the conviction but held that the court erred in considering lack of remorse under the circumstances of the case. We remanded the case for a new sentencing hearing in which appellants lack of remorse would not be considered as an aggravating factor.
On March 28, 2003, the trial court resentenced appellant to state prison for the same upper term of 16 years. The court stated that its observations at the prior sentencing hearing still applied and justified an upper term, without regard to the matter of "remorse or the lack thereof." When defense counsel inquired what weight was given to the circumstances in aggravation listed in the probation report, the court responded that pertinent factors were appellants "relationship with the victim, the impact upon the victim, [and] her vulnerability." The court added that the fact that appellant was on probation for a driving offense was also a factor, "although [it] would be given certainly less weight."
Defense counsel objected that the crime was not committed with "any notable amount of violence," contrary to the probation officers report. In response, the trial court appeared to say that the facts did permit some limited consideration of the violence of the crime. The court commented, "[T]here was testimony by Dr. Crawford as to his examination of the victim, and violence comes in different degrees. . . . [The court may] evaluate the level of physical contact and the impact of that on the victim . . . ."
DISCUSSION
In this appeal, appellant argues that the trial court abused its discretion in imposing the upper term of 16 years in state prison. Our review of the sentence is governed by the principle that the trial courts exercise of its "wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) " `The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives and its discretionary determination to impose a particular sentence will not be set aside on review. " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, citations omitted.)
The record of the two sentencing hearings discloses that the trial court based its sentence on five factors: the impact on the victim, violence, the age of the victim, abuse of a position of trust, and violation of probation. In attacking the sentence, appellant relies on a line of decisions holding that an aggravated term must be supported by facts that have the effect of making the offense "distinctively worse than the ordinary." (People v. Moreno (1982) 128 Cal.App.3d 103, 110; People v. McNiece (1986) 181 Cal.App.3d 1048, 1061, overruled on other grounds in People v. McFarland (1989) 47 Cal.3d 798, 804-805; People v. Price (1984) 151 Cal.App.3d 803, 813-815.) He argues that the first four factors in aggravation do not have this effect because they are characteristic of the crime, and the last factor is of minor importance because the probation was for a traffic offense.
Each of the factors, however, was properly considered in sentencing. With regard to impact on the victim, we note the trial courts description of this factor seems to refer to "emotional injury," which is listed by California Rules of Court, rule 4.414(a)(4), as a criteria for granting or denying probation. Rule 4.421 does not mention emotional injury as a circumstance in aggravation, but it does not purport to give a comprehensive listing of such circumstances and the fact of emotional injury may tend to support a finding of "great violence" or the vulnerability of the victim. (Cal. Rules of Court, rule 4.421(a)(1) & (3).) Thus, we conclude that, whether considered as a separate factor in aggravation or as a factor from which violence and vulnerability may be inferred, the fact of the emotional injury to the victim is a proper consideration in sentencing.
Similarly, we do not see error in the trial courts consideration of the degree of violence. While the evidence was conflicting on this point, the trial court might rely on testimony that appellant " `used fingers, his private part, and his mouth" and caused a tearing and disfigurement of her hymen. The trial court did not state that these circumstances constituted "great violence" within the meaning of rule 4.421(a)(1), but only that they could be evaluated in sentencing. To this extent, the record provides no showing of error.
The trial courts mention of the victims age in the first sentencing hearing requires us to consider possible application of the rule that "[a] circumstance which is an element of the substantive offense cannot be used as a factor in aggravation." (People v. Clark (1992) 12 Cal.App.4th 663, 666; People v. Wilks (1978) 21 Cal.3d 460, 470.) Appellant was convicted of an offense that is defined as involving conduct with a child under the age of 14. "[W]here, as here, an age range factor is an element of the offense, vulnerability based on age is generally not a proper aggravating factor." (People v. Fernandez (1990) 226 Cal.App.3d 669, 680; People v. Quinones (1988) 202 Cal.App.3d 1154, 1159; People v. Ginese (1981) 121 Cal.App.3d 468, 476.)
However, People v. Garcia (1985) 166 Cal.App.3d 1056, 1069-1070, holds that "extreme youth" may be considered in conjunction with other factors in assessing the victims vulnerability: "a minor under the age of 14 may be determined to be particularly vulnerable because of other factors that exist. Some of the potential factors which have been recognized are mental deficiency, physical handicaps, intoxication, supervision or control of a defendant over a victim, and extreme youth within the given age range." [Italics added.] (Accord: People v. Dancer (1996) 45 Cal.App.4th 1677, 1694, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) Under this rule, the trial court did not err in mentioning the age of the victim. The sexual conduct with the child began when the child was only five years old — an extremely young age within the age category — and the trial court mentioned this fact in the context of enumerating a series of relevant circumstances.
Appellant next argues that abuse of a position of trust within the meaning of rule 4.421(a)(11) should not be considered as a factor in aggravation in cases involving convictions under Penal Code section 288.5 because in these cases "the defendant almost always occupies a position of trust vis-à-vis the complaining witness." Three recent decisions reviewing similar upper term sentences for convictions under Penal Code section 288.5 have rejected this argument on the ground that abuse of trust is not an element of the crime. In People v. Clark, supra, 12 Cal.App.4th 663, 666, the court observed, "Since continuous sexual abuse can be committed by anyone residing in the same home with the children, whether or not they have special status with the victim, such sentencing factor is not an element of the crime." In People v. Burbine (2003) 106 Cal.App.4th 1250, 1263, the court cited quoted language in Clark and added, "The same clearly holds true for nonhousehold members. A neighbor, or a housecleaner, gardener, or dog walker employed by a childs parents, for example, might enjoy `recurring access to a child without occupying a position of trust with respect to him or her." (Accord: People v. Franklin (1994) 25 Cal.App.4th 328, 338.)
The authority of these decisions is bolstered by People v. Rodriguez (2002) 28 Cal.4th 543, 549-550, which upholds their assumption that an abuse of trust is not an element of the offense defined by Penal Code section 288.5. Earlier cases suggest that the defendants parental relationship with the victim cannot be used to support both a finding of the vulnerability of the victim and abuse of a position of trust under rule 4.421(a)(3) and (11). (People v. Fernandez, supra, 226 Cal.App.3d 669, 680;People v. Garcia, supra, 166 Cal.App.3d 1056, 1070.) As stated in Garcia, the two factors "are two sides of the same coin. The significant circumstance is the relationship between the defendant and the victim." (People v. Garcia, supra, at p. 1070.) But we find nothing in the present record to suggest that appellants sentence rests on an overly broad use of the circumstance of the appellants relationship with the victim.
Lastly, we see no error in the trial courts brief mention that appellant was on probation for a driving offense when the crime was committed. This fact was indeed a circumstance in aggravation under rule 4.421(b)(4). Properly refraining from giving this circumstance excessive importance, the trial court commented, "[I]t is a factor, although [it] would be given certainly less weight than would be on probation for a similar offense."
We conclude that appellant has failed to carry his burden of showing clearly that the sentencing decision was " `irrational or arbitrary. " (People v. Superior Court (Alvarez), supra, 14 Cal.4th 968, 977, citation omitted.) The record reveals that the trial court relied on a series of factors that were relevant to sentencing and had some tendency to support an aggravated term. We decline to place a different weight on these factors than assigned by the lower court.
The judgment is affirmed.
We concur: Marchiano, P. J., Stein, J.