Opinion
H035921
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. RUBEN JACOB MATUK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
(San Benito County Super. Ct. No. CR-09-02291)
In a negotiated disposition, defendant Ruben Jacob Matuk pleaded guilty to attempted lewd conduct on a child of 14 or 15 years (Pen. Code, §§ 288, subd. (c)(1), 664), lewd conduct on a child under the age of 14 (§ 288, subd. (a)), attempted lewd conduct on a child under the age of 14 (§§ 288, subd. (a), 664), sexual battery on an unlawfully restrained person (§ 243.4, subd. (a)), misdemeanor indecent exposure (§ 314, subd. (1)), two counts of oral copulation with a person under 18 years of age (§ 288a, subd. (b)(1)), and misdemeanor annoying or molesting a minor (§ 647.6, subd. (a)). Six counts alleging other sex crimes against the same victims were dismissed in exchange for his plea. The trial court denied probation and sentenced him to prison.
Further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant challenges the court's reasons for denying probation, asserting that probation "likely would have been granted" had the court not mistakenly relied on an "incorrect assumption" that he was statutorily ineligible. We conclude that the court incorrectly cited defendant's statutory ineligibility as a reason for denying probation, but we find the error harmless. We affirm the judgment.
I. Factual Background
Defendant took advantage of his position as the son of a pastor to prey upon four young girls in his father's congregation. Between 2002 and 2009, he exposed his erect penis to his victims on multiple occasions. He masturbated in front of them, asked or "told" them to touch his penis and "jack him off," and demanded that they orally copulate him. Two of defendant's victims were his cousins. All four were under 18 when defendant began abusing them; the youngest was 10, another was 12, and two were 14. One girl eventually told her mother, who called the police. Defendant was arrested. The police investigation led to defendant's other victims.
II. Procedural Background
The court noted at defendant's plea hearing that he "appear[ed] eligible for probation." The district attorney opposed a grant of probation "based on the number of victims, the circumstances, including the location of the offenses[,] and the fact that the offenses occurred over an approximate seven-year period of time."
The probation report identified four aggravating factors: (1) the crimes involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) the victims were particularly vulnerable (rule 4.421(a)(3)); (3) defendant took advantage of a position of trust or confidence to commit the offenses (rule 4.421(a)(11)); and (4) he engaged in violent conduct, which indicated a serious danger to society (rule 4.421(b)(1)). The report also identified two mitigating factors: (1) defendant had no criminal record (rule 4.423(b)(1)), and (2) he was ineligible for probation and but for that ineligibility would have been granted probation (rule 4.423(b)(4)). The report stated that section 1203.066, subdivisions (a)(7), (a)(8), and (b) made defendant ineligible for probation. "Furthermore," the report continued, "these matters are very serious in nature due to the victims' ages and the fact that this behavior went on for seven years. In order to protect other young children in this community, . . . probation should be denied." The probation officer recommended an aggregate term of 11 years and eight months, which included the upper term for defendant's section 288, subdivision (a) conviction.
Further rule references are to the California Rules of Court.
At sentencing, the district attorney reiterated the People's opposition to probation. After a letter from one of the victims and defendant's letter of apology were read into the record, defendant's trial counsel urged the court to impose the mitigated rather than the maximum term in prison.
The court denied probation and sentenced defendant to 11 years and eight months in prison. The court explained that "[p]robation is being denied for many reasons. There's the ineligibility statutorily and the limitation of probation being a possibility, being inappropriate in light of the seriousness of and nature of the charges, the victims' ages, and the length of time that the defendant's criminal behavior was carried on."
III. Discussion
Defendant contends the court abused its discretion in denying him probation because one of the reasons the court listed, i.e., his statutory ineligibility, was incorrect.
"The granting or denial of probation is a matter for the discretion of the trial court. [Citation]." (People v. Bolton (1979) 23 Cal.3d 208, 216.) "A denial of a grant of probation generally rests within the broad discretion of the trial court and should not and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner." (People v. Edwards (1976) 18 Cal.3d 796, 807.) "It must be impartial, guided by 'fixed legal principles, to be exercised in conformity with the spirit of the law.' " (People v. Wade (1959) 53 Cal.2d 322, 338, disapproved on another ground in People v. Carpenter (1997) 15 Cal.4th 312, 381-382, superseded by statute on another ground as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096,1106.) "A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." (People v. Cluff (2001) 87 Cal.App.4th 991, 998 (Cluff); In re Bine (1957) 47 Cal.2d 814, 817 (Bine).) "When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Price (1991) 1 Cal.4th 324, 492 (Price))
Here, the court cited a number of reasons for denying probation. Defendant contends, the Attorney General concurs, and we agree that the first reason, statutory ineligibility, was not supported by the record.
The probation report cited section 1203.066, subdivisions (a)(7), (a)(8), and (b) as "limiting or prohibiting the grant of probation in this case . . . ." None of those provisions applied here. Section 1203.066, subdivision (a)(7) says probation "shall not be granted to . . . [¶] . . . [¶] [a] person . . . convicted of committing a violation of Section 288 or 288.5 against more than one victim." (§ 1203.066, subd. (a)(7).) It was inapplicable because defendant was convicted of violating section 288, subdivision (a) against only one victim.
Section 1203.066, subdivision (a)(8) says probation shall not be granted to "[a] person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age." (§ 1203.066, subd. (a)(8).) "'Substantial sexual conduct' " is defined in section 1203.066, subdivision (b) as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (§ 1203.066, subd. (b).)
Here, defendant was convicted of lewd conduct on a child under the age of 14 (§ 288, subd. (a)), but the offense did not meet the statutory definition of " '[s]ubstantial sexual conduct.' " (§ 1203.066. subd. (b).) Defendant exposed himself to his 12-year-old victim and "kept asking" her to touch his penis. When she refused, "he grabbed her hand and made her touch it and then told her to jack him off, but she told him no." On these facts, section 1203.066, subdivision (a)(8) was not a basis for denying probation either. Since the provisions the probation officer relied on in concluding that defendant was statutorily ineligible for probation were not supported by the record, the court should not have given "statutory ineligibility" as a reason for its decision denying probation.
Defendant asserts that since he was, in fact, eligible for probation, the sentence must be vacated and the case remanded for resentencing. Had the erroneous finding of statutory ineligibility been the only reason the court cited, a remand for resentencing would have been required. (E.g., People v. Read (1990) 221 Cal.App.3d 685, 689-691.) Here, however, as defendant acknowledges, the court had additional reasons for denying probation: the seriousness and nature of the charges, the victims' ages, and the length of time defendant's behavior was carried on.
Those reasons were amply supported by the record. (Cluff, supra, 87 Cal.App.4th at p. 998; Bine, supra, 47 Cal.2d at p. 817.) Over a seven-year period, defendant exposed his erect penis to his victims, masturbated in front of them, and demanded that they "jack him off" and orally copulate him. He masturbated in front of one victim "a bunch of times" from the time she was 10 until she was 13 or 14. Another victim was 14 when defendant exposed his erect penis and asked her to orally copulate him. She recalled a second incident when she was 16, explaining that "he pretty much just grabs the back of your head . . . and that's how he did it." One victim was 12 when defendant first exposed himself and asked her to masturbate him. She recalled another incident that same year and another when she was 18. When she refused to masturbate him on that occasion, he hugged her "and grabbed my butt," and when she pushed him away, he "grabbed me back."
The detailed evidence that defendant's young victims provided was more than sufficient to support the court's additional reasons for denying probation, and it convinces us that the court's improper reliance on what it believed was defendant's statutory ineligibility was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; Price, supra, 1 Cal.4th at p. 492.) On these facts, it was not reasonably probable that defendant would have been granted probation in the absence of the court's error. (Price, at p. 492.)
Apparently anticipating a waiver argument (People v. Scott (1994) 9 Cal.4th 331, 353-356), defendant asserts as a fallback contention that his counsel rendered ineffective assistance to the extent she "failed to adequately apprise the trial court of [defendant's] eligibility for probation and/or of the recitation of unsupported circumstances weighing against probation cited in the probation report . . . ." We need not address this argument because we address his underlying claim on the merits..
But, defendant argues, there was "very considerable evidence weighing in favor of probation." "Indeed," he asserts, "the probation report stated that [he] would have been granted probation absent (what the author mistakenly believed to be) his ineligibility." The record refutes defendant's contention that his supposed "statutory ineligibility" made all the difference in this case. Had the court considered statutory ineligibility the determining factor, it would have had no reason to list any other factors supporting its decision. But it did list other reasons, which in our view establishes that "statutory ineligibility" was not what tilted the scales in favor of denying probation in this case.
Defendant asserts as a "further reason the case must be remanded for resentencing" that there was "a significant possibility" the court relied on the probation report's "unsubstantiated conclusion" that he was likely to be a danger to others. We cannot agree. Although the probation report listed danger to others as a factor in aggravation, it was not among the reasons the court gave for its decision. Had the court relied on that factor, we think it would have said so.
Defendant suggests the court may have relied on the probation report's unsupported statement that his conduct was violent. We are not persuaded. In denying probation, the court cited "the ineligibility statutorily and the limitation of probation being a possibility, being inappropriate in light of the seriousness of and nature of the charges, the victims' ages, and the length of time that the defendant's criminal behavior was carried on." It did not cite defendant's crimes being "violent" as a reason for denying probation. The court's only mention of violence came after it had denied probation, when it stated that it would impose one-third the midterm of one year on the section 243.4, subdivision (a) count, "consecutively imposed based upon the fact that the crime involved great violence, great bodily harm, or the threat of the same."
Finally, defendant argues that the case must be remanded because the sentence "violates [the] U.S. Constitution's guarantee of due process of law." That argument lacks merit because it is founded on defendant's unsupported assumption that the court based its decision to deny probation on findings that his "crimes were violent or that he is likely to endanger the public if not imprisoned . . . ." We see nothing in the record to support that assumption. The court was not required to accept all of the statements in the probation report. (People v. Warner (1978) 20 Cal.3d 678, 683 [court must consider probation report but may properly reject all or any part of it], overruled on other grounds in People v. Douglas (1999) 20 Cal.4th 85, 92, fn. 6.)
IV. Disposition
The judgment is affirmed.
Mihara, J. WE CONCUR: Bamattre-Manoukian, Acting P. J. Lucero, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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