Opinion
H044270
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ALLAN BARRETT JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS151786A)
Defendant pleaded no contest to six counts of committing a lewd act on a child under 14 pursuant to a negotiated disposition. In exchange, other charges were dismissed and defendant was promised a prison sentence between 12 and 18 years. He argues that the trial court abused its discretion by sentencing him to the upper limit of the plea bargain. For the reasons stated here, we will affirm the judgment.
I. BACKGROUND
Fifteen-year-old Jane Doe disclosed to an aunt and uncle that she had been sexually abused by defendant, her mother's live-in boyfriend and the father of her two younger siblings. The police were contacted, Doe was interviewed at the police station that evening, and the next day she provided a more detailed statement of the abuse. She reported that she had been sexually abused by defendant since she was seven or eight. She described defendant touching her vaginal area and pressing into her body with his penis while clothed, and then removing their clothes and putting his penis between her legs. Defendant forced Doe to masturbate him and orally copulate him. When the abuse began, defendant had Doe place her hand on a Bible and swear not to tell anyone. Defendant apologized and said he would never do it again, but the abuse continued. According to the prosecution's trial brief, the sexual acts included defendant "grinding his penis into her clothed buttocks, rubbing her breasts and her vaginal area, over and under her clothing, rubbing his penis between her legs, attempting penile penetration into [her] vagina and anus as well as touching [her] vagina with his tongue and having [her] manually and orally manipulate his penis to ejaculation."
Doe had told a friend about the abuse when she was in eighth grade, referring to the abuser as a 39-year-old cousin (defendant was 39 at that time), and the school reported the abuse. But Doe denied the abuse to the police at that time because her mother, fearing she would lose her younger children, told Doe to lie. Doe could not estimate how many times she had been molested by defendant over the years. The abuse stopped for a period of time in ninth grade when she lived with her biological father, but resumed when she returned to her mother's home, and the last act of abuse had occurred about 4 weeks before the interview. Doe also reported that defendant had been physically abusive to her mother for years. He had recently punched her mother and the next day he became angry with Doe, grabbed her by the throat and pushed her.
Doe's maternal aunt came forward during the investigation and reported that she had been sexually abused by defendant some eight years previously when she was 15 years old. Defendant had kissed her with his tongue in her mouth and cupped her breasts over her bra. Doe's mother did not believe her sister (defendant said she was lying) and did not speak with her for several months.
Defendant denied the allegations. He told police officers that he and Doe would argue over school, and one time they argued when she came home late, but the arguments were never physical. Doe's mother admitted to police officers that Doe had told her several years earlier that defendant had sexually abused her, and that she had panicked at that time and told Doe that she and her siblings would be taken away by Child Protective Services, but she denied telling Doe to lie.
II. TRIAL COURT PROCEEDINGS
A criminal complaint charged defendant with 10 counts of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a); unspecified statutory references are to the Penal Code) and four counts of committing a lewd act on a child 14 or 15 years old. (§ 288, subd. (c)(1).)
After waiving a preliminary examination and on the first day of an estimated two-week jury trial, defendant pleaded no contest to six counts of violating section 288, subdivision (a) charged in an amended information (counts 1, 6, 7, 8, 9, and 10) and admitted four enhancements involving Doe orally copulating or masturbating his penis. (§ 1203.066, subd. (a)(8); counts 7, 8, 9, and 10.) In exchange, the prosecution agreed to a prison term between 12 and 18 years, and to dismiss the eight remaining counts.
The prosecutor filed a sentencing memorandum setting forth several aggravating factors in support of an 18-year sentence. She argued that defendant's acts involved the threat of great bodily harm and demonstrated a high degree of cruelty, viciousness, or callousness under California Rules of Court, rule 4.421(a)(1) in that defendant "not only preyed on a young child to satisfy his sexual urges but he also was able to continue sexually abusing this child for seven long years due to the secrecy he demanded of her after the very first incident of touching. His sexual conduct was also kept a secret due to his physical and verbal abuse of [Doe's] mother [of] which [Doe] was acutely aware and eventually as a result caused [Doe] to comply with his sexual requests so as to be the protector of her brother and sister as well as her mother." The prosecutor argued that Doe was particularly vulnerable in that she had "told her mother of the defendant's sexual acts and the defendant convinced the family that [Doe] was lying; leaving [Doe] completely unsupported and rejected by her mother as the sexual abuse continued for four more years." The prosecutor argued that defendant induced Doe's mother not to believe her which allowed the sexual abuse to continue; that the manner in which he committed the molestations (when Doe's mother was not home, by asking Doe to bring him soap in the shower and to rub his neck in his bedroom, and by entering her bedroom to rub her back) demonstrated planning and sophistication; and that defendant took advantage of a position of trust and confidence as Doe's stepfather and the father of her younger half siblings, as their caretaker when Doe's mother was working, as the family's main financial supporter, and was the batterer of Doe's mother.
The prosecution submitted a letter written by Doe in support of the maximum sentence. Doe wrote: "The defendant Allan Jones has abused me and my family for years. I was abused in every way, including sexual assault. Being molested at the age of seven and having it continue for years. I want eighteen years ... for the childhood he stole from me and the ever constant pain day by day, night by night. ... [¶] When i was seven years old he had molested me for the first time. My mother started leaving me home at night with her boyfriend while she went to work at the bar. The first time he pressed his penis against me. After that he looked so scared, took me upstairs, and handed me a red bible with gold lettering. He said to swear i would never tell anyone and what just happened would stay in between us. It then started happening more [] frequently. As I got older he would go into my room while i was laying down and touch my private areas such a breast, butt, and vagina. I was confused and knew i didn't like it. As i grew older i started refusing. If i didn't he would make my mom, sister, brother, and my night hell. He abused us all verbally and would beat my mom right in front of us. It didn't stop and eventually escalated to worse things like him rubbing his penis against my butt and vagina. Having my mouth connecting to his penis. Prying my legs apart. When I was in middle school in 2011 i tried telling my mom. She continued to date Allan. During that time I was extremely alone. Allan called me a demon and that he would bury me alive. My mom did not leave him. She did not tell the police. [¶] Around that time I was being selfish and ignorant; I tried to hang myself. I was so clouded in my pain that I wasn't thinking straight. ... Over the years I found myself detaching from everybody. ... I lack a lot of social skills and find myself battling internally. One day my aunt was taking me and her kids to school when i had a flashback and broke down out of nowhere. There has been multiple times where I'd find myself leaving school because i'm so sad and scared id break down crying. I don't cry a lot, but the memories consume me causing tears. At night I'll be sleeping and have a nightmare about Allan trying to kill me. My mom leaving me. Or memories inside a dream, replays of my old life. Certain things trigger me and I have a break down. I find myself uncomfortable with fathers in my friends and cousins home. ... It's hard for me to grow close to people. The most common emotions I feel is depressed, empty, and angry. [¶] ... [¶] This is only a small percentage of why Allen Jones should get his full sentencing. He has forever dramatically ruined my life. He has also ruined other lives."
Defendant filed a responsive sentencing memorandum in which he professed his innocence. He stated that Doe was not isolated when they lived under the same roof because one or more of her maternal relatives had always lived with the family; Doe had not identified him as her molester in 2011; Doe's mother denied telling Doe to lie about the reported abuse in 2011; and Doe's mother denied Doe ever having told her that he had molested Doe. He pointed out that Doe's father's custody request in 2013 was unrelated to any safety concerns about him, and that Doe willingly returned to her mother's home after living with her father for a period of time. Defendant attached to his memorandum summaries of interviews his investigator conducted with Doe's mother, one of Doe's maternal uncles (not the uncle to whom Doe disclosed her abuse), Doe's maternal grandmother, Doe's mother's cousin, one of Doe's childhood friends, that friend's mother, and defendant's business partner. Defendant was described in those documents as a good provider and an awesome father with a heart of gold, and not a child molester. In contrast, Doe was described as problematic, manipulative, defiant, and a liar. Defendant also submitted letters written by friends and relatives attesting to his good moral character and innocence.
Defendant argued that no allegations were made of threats of violence; that Doe was no more vulnerable than a typical victim of sexual molestation; that no one, including Doe's mother, was induced to participate in the molestations; that there was no evidence of planning or sophistication; and that his criminal history showed decreasing criminal behavior. He asked the court to consider in mitigation that he had entered a plea which obviated the need for Doe and others to testify.
After Doe's father and defendant spoke at sentencing, the court gave a lengthy statement in connection with its sentencing order. The court noted that it had read the probation report and the materials provided by the parties, including Doe's statement, and it found the abuse described by Doe to be credible. The court found it disturbing that defendant's focus at sentencing was to impeach Doe's credibility, and it commented that the circumstances defendant highlighted to impeach Doe—her delayed disclosure and ongoing abuse while others lived in the household—are not unusual in sexual abuse situations. Regarding defendant's professed innocence, the court acknowledged "the circumstances under which he entered his plea." It noted that the probation department had not listed lack of remorse as aggravating, and it too would not consider lack of remorse as an aggravating factor.
The court found as aggravating factors Doe's age when the abuse started, making her particularly vulnerable; defendant being in a position of trust as a stepfather to Doe; his having Doe promise not to tell anyone and threatening her; and defendant's numerous convictions of increasing severity making him a serious danger to society. The court considered in mitigation the character defendant displayed to those who had written letters on his behalf, but that it was "far outweigh[ed]" by the aggravating factors.
The court found consecutive sentences appropriate given the many separate incidents which continued for a substantial period of time, and it sentenced defendant to the maximum term under the plea agreement—the upper term of eight years for court 1, and fully consecutive two-year terms for the five remaining counts.
III. DISCUSSION
Defendant argues that the trial court abused its discretion by sentencing him to the maximum prison term under the plea bargain. Under the applicable standard of review, " ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
A. EVIDENCE OFFERED TO BOLSTER PROFESSED INNOCENCE
Defendant argues that his plea was entered under North Carolina v. Alford (1970) 400 U.S. 25 (Alford), that a trial court sentencing a defendant who enters an Alford plea should consider in mitigation evidence which tends to show innocence, and that the trial court abused its discretion here by refusing to consider what he views as exculpatory evidence in light of his Alford plea.
The defendant in Alford, charged with first degree murder, entered a guilty plea to second degree murder to avoid the death penalty while maintaining his innocence. The United States Supreme Court held that Alford's plea was not rendered involuntary by his motivation to avoid the death penalty, "[i]n view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in his innocence." (Alford, supra, 400 U.S. at p. 38.) In so holding, the court observed that the evidence against Alford "substantially negated his claim of innocence and [] further provided a means by which the judge could test whether the plea was being intelligently entered." (Ibid.) The court further noted that to insure that pleas coupled with claims of innocence are the product of free and intelligent choice, they "should not be accepted unless there is a factual basis for the plea, [citations]; and until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence." (Id. at p. 38, fn. 10.)
Even if we accept defendant's characterization of his plea as one entered under Alford, we disagree that the trial court should consider evidence supporting his professed innocence as a mitigating sentencing circumstance. "As long as the guilty plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant, [citation], and a sufficient factual basis exists to support the plea of guilt, [citation], the collateral consequences flowing from an Alford plea are the same as those flowing from an ordinary plea of guilt. Were this not so, defendants pleading guilty would routinely proclaim their innocence to reap two benefits: (1) the avoidance of a trial and a possible reduction in sentence, and (2) the extinguishment of all collateral consequences of their plea." (Blohm v. C.I.R. (11th Cir. 1993) 994 F.2d 1542, 1554.) Thus, while a criminal defendant entering a plea under Alford is not required to admit his guilt, he does consent " 'to being punished as if he were guilty to avoid the risk of proceeding to trial.' " (U.S. v. Glenn (2nd Cir. 2014) 744 F.3d 845, 847, fn. 1, italics in original.) Defendant therefore cannot be adjudicated guilty under Alford and at the same time challenge the factual basis which forms the underpinning of the plea bargain by asking the court to consider his professed innocence in support of a mitigated sentence. Defendant is not seeking to withdraw his plea; he wants to receive the benefit of the plea bargain (avoiding the risks of trial) and at the same time be punished as if he were not guilty. That he cannot do.
Defendant's change of plea did not contain an explicit protestation of innocence. When entering his plea, defendant said "I'm doing this only because there's, for my understanding, there's no real guarantee which way a jury might sway. It could go either way," and "I waited my whole life for my two kids. ... And this is my only guarantee. I got admit guilt things I've done -- I have not done, go to prison to guarantee I'll see them. I'll do it because I love them." Unlike the defendant in Alford, defendant here stipulated to a factual basis for the plea. On the waiver of rights form, defendant initialed next to the paragraph which states "I agree there is a factual basis for the plea," and he identified a police report by number "as a basis for my plea and admissions," which is inconsistent with a protestation of innocence. When his plea was entered, defendant's attorney stipulated that a factual basis for the plea was contained in the police report (including 13 supplements to the main report), a supplemental report prepared by the district attorney's investigator, and Doe's forensic interview. Defendant alerted the court in his sentencing memorandum that he maintained his innocence, and declared at his sentencing hearing that the charges against him were false, explaining that he "[took] a deal by pleading no contest to things I didn't do," to minimize his separation from his children. --------
Defendant's analogy to a jury considering lingering doubt in the sentencing phase of a capital trial is inapposite. (People v. Brooks (2017) 3 Cal.5th 1, 104; People v. Terry (1964) 61 Cal.2d 137, overruled on unrelated grounds in People v Laino (2004) 32 Cal.4th 878, 893.) A non-capital defendant is sentenced by a court, not a jury. And the guilt of a non-capital defendant who enters a guilty or no contest plea (under Alford or otherwise) is established by virtue of the plea itself. (People v. Hoffard (1995) 10 Cal.4th 1170, 1177 ["A guilty plea admits every element of the crime and constitutes a conviction."].) Not having been tried or sentenced by a jury, there is no lingering doubt regarding defendant's guilt which could cast a shadow on the sentencing proceedings here.
California Rules of Court, rule 4.413(c)(2), allowing the sentencing court to consider factors limiting a defendant's culpability in overcoming the presumption of probation ineligibility, also has no application here. The rule lists factors not amounting to a defense such as provocation, coercion, duress, mental condition, and age, none of which applies to defendant.
B. ABUSE OF DISCRETION REVIEW
The trial court did not abuse its discretion by rejecting the evidence submitted by defendant in support of the minimum sentence under the plea bargain. The court's comments make clear that it read and considered the evidence submitted by defendant before determining that aggravating factors outweighed any mitigating factors. The court's comments also make clear that it did not consider defendant's lack of remorse to be an aggravating factor.
A single factor in aggravation justifies the imposition of an aggravated term. (People v. Black (2007) 41 Cal.4th 799, 816.) Here several aggravating factors are supported by the record, including: Doe's vulnerability, particularly after she disclosed the abuse to her mother in 2011 and in light of ongoing domestic violence in the home; the planning and sophistication that went into each act of abuse; defendant threatening Doe; defendant taking advantage of a position of confidence; and ongoing abuse demonstrating a high degree of cruelty and callousness. (Cal. Rules of Court, rule 4.421(a)(1), (3)(1), (6), (8), (11).)
There is no abuse of discretion in the court commenting that it found Doe to be credible after reviewing the sentencing evidence submitted by both parties, or in commenting on the evidence corroborating Doe's allegations and defendant's efforts to impeach Doe. Doe's credibility was integral to the factual basis for defendant's plea. After having the facts presented more fully at sentencing, the court's comments served to resolve the conflict between defendant waiving his right to trial and claiming innocence, thereby insuring the constitutional soundness of the plea. (Alford, supra, 400 U.S. at p. 38, fn. 10.) Indeed, had the court been persuaded by defendant's demonstration of innocence, the validity of the plea would have been undermined.
Nor did the court improperly act as an expert by noting that the evidence defendant put forward in support of his innocence (Doe's recanting of her first report of abuse, her delayed disclosure, and the family's lack of awareness of the abuse) was not inconsistent with ongoing sexual abuse. Although the court's observations that child victims of sexual abuse often delay disclosure or recant, and that such behaviors do not by themselves undermine the validity of sexual abuse allegations, demonstrated its familiarity with Child Sexual Abuse Accommodation Syndrome (see People v. Ranlet (2016) 1 Cal.App.5th 363, 371 ["CSAAS describes five categories of behaviors commonly engaged in by victims of child sexual abuse: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and retraction"]), they were appropriate to respond to defendant's argument that those facts supported his innocence.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Bamattre-Manoukian, J.