Opinion
G043699
09-16-2011
THE PEOPLE, Plaintiff and Respondent, v. IMADE A. JATI, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09HF0179)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Imade A. Jati appeals from his conviction on 13 counts of forcible rape, sexual penetration with a foreign object by force, and sexual penetration of a minor by a foreign object arising from his repeated sexual abuse of his daughter, J.J., over a nine-year period. He contends his due process rights were violated by instructing the jury with CALCRIM No. 1190 [other evidence not required to support testimony in sex offense case] and the trial court erred by imposing consecutive upper terms for the offenses, resulting in a total prison term of 80 years. We reject his contentions and affirm the judgment.
FACTS AND PROCEDURE
Prosecution Case
Testimony of J.J.
J.J., who was 18 years old at the time of trial, testified against Jati. When she was much younger, and prior to when the charged offenses occurred, J.J. lived in Pennsylvania with Jati, her mother, two younger brothers, two older half-sisters, and an older-half brother. Jati began sexually abusing J.J. when she was nine years old and in the third grade. On more than 10 occasions, mostly when they were alone in the house, Jati would come into J.J.'s bedroom and touch her genitals. Jati would pick up J.J. and rub her body against his genital area; she would put her legs around Jati's waist when he did this. Jati told J.J. what he did was okay and it was not bad, but she should not say anything about it because it would ruin the family and they would have no money. This conduct continued for the next couple of years.
By the time J.J. was 12 or 13 years old, Jati had begun coming into her bedroom and touching her like before, but he would now also insert his fingers into her vagina. J.J. would try to push Jati away, but he would not stop. Again, Jati told J.J. to say nothing because it would ruin the family. By the time J.J. began having her menstrual periods at around age 13, Jati was coming to her room two to three times a night and inserting his fingers into her vagina. Jati told J.J. he loved her more than his other children. When J.J. resisted her father, he would get frustrated and make a "mad face" that scared her. J.J. wrote Jati notes begging him to stop, but he did not. He continued to warn her to not tell anyone or the family would be ruined.
When J.J. was 13 or 14 years old, and in the ninth grade, Jati began having intercourse with her. He took her into his bedroom and tried to make her remove her clothes, but she would not. He took his clothes off and penetrated her vagina with his penis. J.J. could not make him stop. Eventually, Jati would remove his penis and ejaculate outside of J.J. Over the next few years, Jati continued having sexual intercourse with J.J.—over 100 times while they lived in Pennsylvania. Jati would also perform oral sex on J.J. and on occasion tried to force her to orally copulate him.
In October 2007, the family moved to Irvine; J.J.'s older step-siblings stayed in Pennsylvania. Jati and J.J. drove to California together, spending several nights in motels on the way, and every night Jati tried to have sex with J.J. Throughout the next year in their Irvine home, Jati routinely came to J.J.'s bedroom at night around 2:00 to 4:00 a.m. J.J. would awaken with Jati's fingers insider her vagina. This happened over 100 times. During the year, Jati would take J.J. into the closet and force her to have sexual intercourse with him. Jati continued to warn J.J. if she told anyone, the family would break up. Jati had intercourse with J.J. more than 50 times in the closet, and once on the couch. J.J. described one incident in which she was walking past Jati as he watched pornography on the television. He removed her pajamas, put his fingers inside her vagina for about three minutes, and then had intercourse with her on the couch. Whenever they had intercourse, Jati would typically ejaculate in his hands, on the floor, or on J.J.'s stomach. He used a condom one time. The last time J.J. and Jati had intercourse was on Easter Day in 2008, when he took her to his bedroom and forcibly penetrated her vagina with his penis.
The charged offenses took place in Irvine between October 2007 and December 2008. Because Jati does not challenge the sufficiency of the evidence to support his convictions, we need not provide a detailed account.
Around November 2008, when J.J. was a senior in high school, Jati and J.J.'s mother separated because Jati was having an affair. J.J., her mother, and two brothers moved away, and Jati moved to another house. J.J. eventually told her mother about Jati's abuse, and J.J.'s mother reported it to the police.
Investigation/Recorded Calls
Irvine Police Detective Matt Ricci investigated the case. He arranged covert telephone calls on January 26, 2009, between J.J., her mother, and Jati. First, J.J.'s mother called Jati and said something was wrong with J.J. and they needed to talk. Jati declined to talk to her, but then he called her back and then called J.J. Jati and J.J. had a long conversation in which Ricci wrote questions for J.J. to ask Jati. The telephone calls were recorded and the recordings were played for the jury. During the telephone calls, Jati did not deny J.J.s continued references to Jati touching her. When J.J. told Jati it was embarrassing to her that Jati had sex with her, Jati responded, "Yeah, I know. It is, embarrassing." J.J. told Jati he must promise to never have sex with her again, and he replied, "Absolutely. Absolutely." When J.J. asked Jati if he would try to have sex with her again, Jati responded, "No, I won't."
Expert Testimony
A child abuse pediatrician testified as an expert for the prosecution. She reviewed J.J.'s medical examination records and the report of the sexual assault examination performed on J.J. in January 2009. She noted there were no signs during the examination of any residual injury or sexual abuse. The expert testified it was not unusual that there would be no physical signs of sexual abuse as injuries would have likely healed in the eight or nine months since the last occurrence. The expert did not examine or interview J.J. and was unaware of the number of rape allegations J.J. made.
Defense
Jati testified and denied ever having sexually abused his daughter. Jati claimed he had a good relationship with J.J. and all his other children. Jati explained he and J.J.'s mother began having marital problems because of Jati's job-related traveling. By July 2008, Jati had begun an affair with another woman, and he and his wife eventually separated. Jati claimed J.J. was upset about her parents' separation and angry with him for having an affair. When questioned about the recorded telephone conversations with J.J., Jati claimed he was simply "role playing" with his daughter. He thought J.J. was just saying things about sexual abuse by him because she wanted to move out of her mother's house and he was just playing along to help give his daughter an excuse. When asked on cross-examination about his daughter's strong emotions and tears while testifying, Jati testified his daughter was "a game player," and "[this] whole thing is a game."
Rebuttal
Ricci testified on rebuttal he spoke with Jati after his telephone conversation with J.J. Ricci told Jati he was not under arrest. Jati said he had no idea why the police wanted to speak with him. When asked about the telephone conversation with his daughter, Jati said it was just about J.J. not wanting to live with her mother. When Ricci told Jati he had listened in on the conversation, and mentioned some of Jati's statements, Jati denied making them. Jati was later taken to the police station where he listened to the tape recording. At no time did Jati explain his statements by saying he had just been role playing with J.J.
Charges, Conviction, and Sentence
An information charged Jati with six counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) (counts 1, 2, 3, 4, 6 & 7), four counts of sexual penetration with a foreign object by force (§ 289, subd. (a)(l)) (counts 5, 8, 9 & 10), and three counts of sexual penetration of a minor by a foreign object (§ 289, subd. (h)) (counts 11, 12 & 13). A jury found Jati guilty on all counts. The trial court imposed a total term of 80 years in prison comprised of the upper term of eight years on count 1, plus consecutive upper terms of eight years on counts 2 through 8, 10, and 12. The court imposed upper terms of three years on counts 9, 11, and 13, and stayed those terms pursuant to section 654.
All further statutory references are to the Penal Code.
DISCUSSION
1. CALCRIM No. 1190
The trial court instructed the jury with CALCRIM No. 1190, which states that "[c]onviction of a sexual assault crime may be based on the testimony of a complaining witness alone." Jati contends this instruction violates due process for a variety of reasons. He concedes, however, his arguments have been rejected by the California Supreme Court in the context of the predecessor to CALCRIM No. 1190, the substantially identical CALJIC No. 10.60 (People v. Gammage (1992) 2 Cal.4th 693, 700-701), and we are bound by its conclusions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). He raises the arguments here only to preserve them for future review. Accordingly, we need not consider them further.
2. Sentencing: Imposition of Consecutive Upper Terms
The trial court imposed a total term of 80 years in prison comprised of the upper term of eight years on count 1, plus consecutive upper terms of eight years on counts 2 through 8, 10, and 12. Jati contends the trial court abused its discretion by imposing the full consecutive aggravated terms for each count because it failed to adequately consider mitigating circumstances. We reject his contentions.
The trial court enjoys broad discretion in its sentencing decision, which we review for an abuse of discretion. However, such discretion "'must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.'" (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Thus, the trial court must exercise its sentencing discretion "in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (Ibid.)
In exercising its sentencing discretion as to which term to select (low, middle, or high), the trial court must consider "circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision," and it must state its reasons for its sentencing choice. (Cal. Rules of Court, rule 4.420(b), (e).) The Attorney General correctly points out Jati's challenges to the court's reasoning in its discretionary sentencing choices are waived because they were not raised in the trial court. (See People v. Scott (1994) 9 Cal.4th 331, 353.) However, in view of his alternative ineffective assistance of counsel claim, we exercise our discretion to consider the issue (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Ellison (2003) 111 Cal.App.4th 1360, 1370), and find it to be without merit.
The probation report stated there were four circumstances in aggravation, and no mitigating circumstances, relating to the crimes: the crimes involved a high degree of cruelty; the victim was highly vulnerable; the manner in which the crimes were carried out indicated planning; and as J.J.'s biological parent, Jati took advantage of a position of trust. (Cal. Rules of Court, rule 4.421(a).) The report stated there was one circumstance in aggravation relating to the defendant; Jati had engaged in violent conduct. It found one mitigating circumstance relating to the defendant, 54-year-old Jati had an insignificant record of criminal conduct (only one prior conviction for writing bad checks in 2003). (Cal. Rules of Court, rule 4.421(b).) There was no information on whether J.J.'s step-sisters had been victimized by Jati. The probation report stated Jati had a score of zero on the Static-99 assessment placing him at low risk of committing another sexual offense if released on probation. But Jati was ineligible for probation pursuant to section 1203.065, subdivision (a), because the crimes involved force or fear, and full consecutive sentences were required by section 667.6. The probation report included letters from one of his former wives, two of his adult daughters, and one of his adult sons, expressing support for Jati.
Section 667.6, subdivision (d), requires imposition of "full, separate, and consecutive term[s]" for certain sex offenses committed against the same victim on separate occasions including the offenses committed by Jati, i.e., forcible rape (§ 261, subd. (a)(2)), sexual penetration by force (§ 289, subd. (a)(1)). (§ 667.6, subd. (e)(1), (8).)
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Although nothing was filed on Jati's behalf at the sentencing hearing, his counsel argued against imposing the aggravated terms based on Jati's age, lack of criminal history, and letters of support filed by his other adult children and one of his former wives. The prosecutor argued the court should impose consecutive aggravated terms on each count because the repeated sexual offenses were committed with force by a father against his biological daughter, and Jati "perjured himself in front of the jury" and blamed J.J. The prosecutor also criticized the Static-99 results, saying he believed the assessment to be "flawed with regard to these type of cases. I think it's more suitable for [sexually violent predator] type actions."
In imposing sentence, the trial court concluded full consecutive sentences were appropriate under section 667, subdivision (d), because "this is not a one[-]time aberrant behavior, but this was ongoing behavior over an extended period of time" and Jati had "a reasonable opportunity to reflect upon [his] actions and yet . . . resumed sexually assaultive behavior . . . ." In imposing the aggravated term for each count, the court stated it was relying on California Rules of Court, rule 4.421(a)(11) [defendant took advantage of position of trust or confidence to commit offense], because Jati was J.J.'s biological father and "he took advantage of a position of special trust for the care and protection of his child and instead committed these offenses against her."
We cannot say the trial court abused its discretion by selecting the aggravated terms based upon Jati's gross abuse of his special position of trust or care for his daughter. A single valid factor is sufficient to justify a sentencing choice, whether an aggravated term of imprisonment or a consecutive sentence, and the same factor can support several consecutive sentences supported by a single proper statement of reasons. (People v. Dancer (1996) 45 Cal.App.4th 1677, 1695-1696, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) Jati's complaints the prosecutor improperly invoked Jati's claim of innocence by arguing at sentencing Jati had perjured himself and unfairly criticized the value of the Static-99 assessment are irrelevant. There is nothing suggesting the trial court relied on either factor.
Jati contends the trial court abused its discretion in selecting the upper term for each count because there were numerous mitigating circumstances that should have resulted in a lesser sentence. He contends that in addition to his insignificant criminal record (Cal. Rules of Court, rule 4.423(b)(1)), the court should have considered it was unlikely he would reoffend because there were no reports he sexually abused his other daughters (Cal. Rules of Court, rule 4.423(a)(3)), and the Static-99 scored him at low risk of reoffending. Both points were noted in the probation report, and the trial court could reasonably conclude in view of the duration and number of the offenses committed against one daughter, the absence of reports of sexual abuse of his other daughters did not lessen the severity of the crimes.
Jati further asserts the court failed to consider as a mitigating circumstance that he exercised caution to avoid harming his daughter when he repeatedly raped her by not ejaculating inside her, so she would not become pregnant, and by using no more force against her than that necessary to commit the offenses. (Cal. Rules of Court, rule 4.423(a)(6).) It completely strains credulity for Jati to suggest he was trying to protect his daughter by acting so as to avoid a pregnancy—as the Attorney General notes, the more likely motive for such conduct was to prevent his acts from being discovered.
Jati also complains that in selecting the upper term, the trial court failed to take into consideration he was statutorily eligible for probation. He criticizes the prosecutor, the probation officer, and defense counsel for not reminding the court probation was an option. Jati relies on section 1203.066, subdivision (d), which permits the trial court to grant probation under very narrow circumstances to a defendant convicted of committing a violation of section 288 [lewd act on a child] or section 288.5 [substantial sexual conduct with a child], if the defendant was a member of the victim's household. The section is inapplicable. Jati was not convicted of violation of sections 288 or 288.5. Jati was convicted of and sentenced on charges of forcible rape (§ 261, subd. (a)(2)), and sexual penetration with a foreign object by force (§ 289, subd. (a)(l)), and was ineligible for probation pursuant to section 1203.065, subdivision (a).
Jati also makes a cursory and undeveloped argument that "a determination that the sentencing court abused its discretion in imposing essentially a life term also requires reversal as a violation of [his] right to due process and the ban on cruel and unusual punishment." These arguments have been waived because they were not raised below (People v. Norman (2003) 109 Cal.App.4th 221, 229 [cruel and unusual punishment arguments must be raised in trial court because they require fact-specific determinations about offense and offender]), and are not adequately argued on appeal (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Ineffective Assistance of Counsel
Jati contends he was denied effective assistance of counsel at sentencing because his counsel made no substantial argument, other than to tersely ask the court to not impose the aggravated terms based on Jati's age, lack of criminal history, and letters of support filed by his other adult children and one of his former wives. We reject the claim.
"To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.] 'In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny . . . ' and must 'view and assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.' [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. [Citation.]" (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) Furthermore, " . . . '"if the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
We cannot say on the face of the record there is no satisfactory explanation for defense counsel's performance at the sentencing hearing, nor has Jati demonstrated prejudice. Jati complains his counsel failed to alert the court to the mitigating factors in this case. But as we have already discussed above the trial court was well aware of the most of the factors (e.g., Jati's age, lack of a significant criminal record, lack of reports of abuse of his other daughters, low score on the Static-99 assessment, letters of support from his family) as they were discussed in the probation report. And as noted above, contrary to Jati's assertion on appeal that counsel failed to point out he was eligible for probation under section 1203.066, subdivision (d), he was not. That leaves only Jati's specious claim he conducted the rapes in a careful manner to avoid harming his daughter by getting her pregnant. We cannot fault defense counsel for failing to make such a cynical argument—we doubt there is even a remote possibility it would have persuaded the trial court to impose a lesser sentence.
DISPOSITION
The judgment is affirmed.
O'LEARY, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.