Opinion
A152730
12-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER PARLATO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR681896)
Defendant Alexander Parlato appeals from a judgment of conviction entered after he pleaded no contest to forcible rape (Pen. Code, § 261, subd. (a)(2)), forcible sexual penetration (§ 289, subd. (a)(1)(A)), and corporal injury on a girlfriend (§ 273.5, subd. (a)); admitted he had personally inflicted great bodily injury upon his victim under circumstances involving domestic violence (§ 12022.7, subd. (e)); and admitted he had suffered a prior strike conviction (§§ 1170.12, subds. (b) & (c), 667, subds. (d) & (e).) Pursuant to a negotiated plea agreement, the trial court sentenced him to 22 years in state prison. On appeal, defendant contends the trial court erred by denying his request to strike the factual recitation in the probation report and replace it with the preliminary hearing transcript. He further contends the court erred by denying his request to strike the reference to his Static-99 test because the probation report failed to include a "Facts of Offense Sheet" and did not include any raw data regarding how his test was scored. We affirm the judgment, but we remand for the limited purpose of ordering the compilation of a "Facts of Offense Sheet," as required by section 1203e.
All further statutory references are to the Penal Code unless otherwise stated.
I. BACKGROUND
A. Preliminary Hearing
1. Direct Testimony
Jane Doe and defendant had an "[o]ff and on" sexual relationship for several years prior to June 5, 2016. That evening, defendant contacted Jane via text while she was living at a house in Sonoma, and said he wanted to come see her. At first, Jane ignored defendant's texts; eventually, she told him not to come to her house. Nonetheless, at around 11:00 p.m., defendant texted Jane he was "coming over." Defendant continued to text Jane, "until the wee hours of the morning," he was going to come over and he would see her soon. Eventually, Jane was woken by the sound of pounding on her door and a flashlight shining through the door near her bedroom. When defendant announced himself, Jane told him to leave and told him she did not want him there. When defendant told her he had been drinking and did not "want to get in trouble," Jane let him inside her home. Jane was wearing a short, black "nightie" without any underwear on underneath.
Once inside, defendant began to force himself on Jane, kissing her all over her body and pushing her towards her bedroom. Eventually, Jane was able to force defendant to go to the front of the house; there, she asked him to have a drink with her, thinking that would keep him away from her bedroom. While Jane had a liquor bottle in her hand, defendant attempted to force himself on her, so Jane pushed back at defendant and hit him in the head with the bottle. This made defendant mad, so he began to pummel Jane with his fists on the left side of her face, head, shoulder, back, and ear. Defendant also bit Jane on her neck. Then, defendant asked her to "go to the bedroom now" which Jane took to mean if she went with defendant, he would stop hitting her. Hoping "that the beating would stop" Jane went with defendant to the bedroom where she attempted to "[p]lease him in a sexual way"; defendant, however, continued to beat Jane on the side of her head and ear with an open fist. Defendant also grabbed Jane's hair and used it to force her "to do what he wanted [Jane] to do to him." Defendant subsequently got on top of Jane and alternately forced his penis inside of her, licked inside her vagina, bit her pubic area "very, very, very hard" and forced his entire hand inside her vagina. Later, defendant sat on top of Jane and put his hands around her neck "and pressed tight enough where [she] wasn't sure" she "was going to survive, and long enough to where [she] was fearing for [her] life."
Eventually, Jane was able to escape and make it to a neighbor's house; the neighbor called 911 for Jane.
2. Cross-examination
Jane Doe confirmed she and defendant met in 2011. She was 49 years old, and he was 24. They had dated in the past, but never officially broke up. She encouraged him to find a younger girl, but they would always come back to each other. Jane told defendant he was free to come and go from her house. He asked permission every time. He lived at her house for a couple months when they first met, when he got out of Sonoma County Jail. After a couple months, he moved out.
Defendant lived with Jane again in June and part of July of 2014. He again had permission to come and go as he pleased. He moved out again in July 2014. Between July 2014 and June 2016, they continued to see each other at Jane's house but not in public. He would call and ask if he could come over. She would give him permission to come over. When he visited, they would usually end up having sexual relations.
He would come over, they would watch television, she would cook dinner, and they would have sex. They had consensual sex between five and ten times between 2014 and 2016. The last time he visited was when he had a short breakup with a girlfriend about a month and a half prior, probably in April 2016. She thought they had had sex when he visited last.
On the night in question, defendant's behavior was unlike anything Jane had seen with him before. He would not have come over without permission. He would have left if she had asked him to. He would not have forced himself on her. He would not have pounded on her door or lied to get in.
Jane did not think defendant was drunk. She did not smell alcohol. She thought he made up the story about being drunk so she would let him in. She had spent a lot of time with him in the past. He had always been kind to her. She had never seen him be violent before. His behavior was incredibly bizarre. B. Sentencing Hearing
At the start of the sentencing hearing, the court indicated it had reviewed the presentence report, as well as the sentencing statement, factual objections and mitigation material submitted by the defense. The court noted the great volume of materials submitted by the defense was rare in a case with a negotiated disposition. In any event, the court stated it had read all of the material and inquired whether defendant was prepared to go forward with sentencing.
The court inquired if there was a request to withdraw the plea or to consider a different sentence. As the parties had negotiated a disposition, the court was somewhat perplexed by the voluminous submissions. Defense counsel stated defendant did not have a direct request of the court except to review the statements and sentencing package and come to a just result.
The court determined there was no reason not to follow the agreed-upon disposition. The court stated that when it took the plea, it had made the requisite findings that the plea had been voluntarily, intelligently, and knowingly made.
The court then heard argument regarding defendant's objections to alleged hearsay statements in the probation report. Citing People v. Otto (2001) 26 Cal.4th 200, the People argued it was permissible for hearsay statements from police reports to be referenced in presentence reports. Defense counsel argued the preliminary hearing transcript should be substituted for the section of the probation report entitled "Circumstances". Counsel noted the factual basis the parties stipulated to at the time of the plea was the preliminary hearing transcript. Counsel argued the preliminary hearing transcript was better evidence than the police report and is the information stipulated to support the plea.
Defense counsel claimed, "[m]any" portions of the "Circumstances" section of the probation report were either contradicted or not in line with the testimony contained in the preliminary hearing transcript. Defense counsel further suggested that if the court was not willing to strike the entire "Circumstances" section of the probation report, it should include by citation the preliminary hearing transcript into the "Circumstances" section of the probation report.
The court denied the request to make the preliminary hearing transcript a part of the probation report or substitute the preliminary hearing transcript for the factual recitation. In so ruling, the court explained the preliminary hearing transcript stood independently and was part of the record. Further, the court stated that although it reviewed the probation report, it was not relying on that report in rendering the sentence. The court added it could find no reason for striking portions of the probation report where there was already an agreed outcome as to the sentence. Defense counsel noted the probation report and the sentencing packet would be sent to California Department of Corrections and Rehabilitation (CDCR) and would go to the counselors. As such, it could have an impact two months in the future to twenty years in the future, when someone reviews the information contained within it.
Defense counsel also objected to the Static-99 test results being included in the probation report because he disagreed with their accuracy. Defense counsel attached an article illustrating the history of the Static-99 test and its many flaws. Defense counsel noted the law requires the probation department to create a fact offense sheet regarding how they got to their specific recommendation. Defense counsel also argued that the numbers alone, without any further analysis or description, were meaningless.
The trial court denied the motion to strike the results of the Static-99 test and imposed the agreed upon sentence.
II. DISCUSSION
Defendant does not argue the sentence is erroneous or that the sentencing court was improperly influenced by matter in the probation report. Instead, the relief he seeks is remand for the trial court to strike the factual recitation in the probation report and replace it with the preliminary hearing transcript. He further seeks remand for the trial court to strike the results of and reference to the Static-99 test in the probation report.
Defendant seeks this relief because of the possibility that an erroneous probation report could adversely affect him in the future in terms of housing, services, and parole. A. Legal Principles
A presentence, or probation, report provides the trial court with relevant and reliable information regarding sentencing. (See § 1203.) When probation is denied, the report is forwarded to the CDCR. (§ 1203, subd. (b)(3).) The probation report is then used by the CDCR for classification and assessment of a defendant's risk on release and his conditions of parole. (Cal. Code Regs., tit. 15, §§ 3076.2., subd. (b)(2)(E), 3375, subd. (j)(3).) The probation report is also used in other contexts. It is admissible evidence to show the underlying facts of a prior conviction, and it may support a "determination that a person is a sexually violent predator, but shall not be the sole basis for the determination." (Welf. & Inst. Code, § 6600, subd. (a)(3).) The information in probation reports may also be used by experts in forming their opinions regarding a prisoner's conduct in proceedings under the Mentally Disordered Offender Act (§ 2960 et seq.). (People v. Martin (2005) 127 Cal.App.4th 970, 976-977, disapproved on another ground in People v. Achrem (2013) 213 Cal.App.4th 153.)
A sentencing court has the discretion to correct or to strike a probation report, in whole or in part. (See Cal. Rules of Court, rule 4.437(d) & (e); and see generally People v. Municipal Court (Lopez) (1981) 116 Cal.App.3d 456, 458-459.) The purpose of this discretion is to assure probation reports are founded on accurate and reliable information, thus affording fundamental fairness to a defendant on matters related to the report. Accordingly, when a defendant believes the probation report is insufficient, inaccurate or based upon unreliable information, he may present evidence to counteract or correct any portion of the report. (People v. Bloom (1983) 142 Cal.App.3d 310, 320.) As a general rule, reversal is not required unless the trial court has relied on the inaccurate information. (People v. Phillips (1977) 76 Cal.App.3d 207, 215.) B. Alleged Inaccuracies
It is true, "the basic evil which should be avoided in probation reports tendered to the court for sentencing purposes is that the reports should not in any way be misleading or inaccurate." (People v. Lutz (1980) 109 Cal.App.3d 489, 497.) Although defendant claims the probation report was misleading, he fails to point to any specific inaccuracies or contradictions between the testimony at the preliminary hearing and the factual recitation in the probation report. Rather, he broadly claims, without citation to the record, the "Circumstances" section of the probation report does not include a reliable recitation of the relevant facts. It is not the job of this court to do an appellant's work for him either by manufacturing his legal arguments, or by combing the record on his behalf for factual support. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800.) Even in the trial court, defendant only made brief references to alleged contradictions between the preliminary hearing testimony and the facts contained in the probation report. In any event, if only to preclude a future ineffective assistance of counsel claim, we address the merits of defendant's arguments and conclude they fail.
For instance, in his sentencing statement, defendant argued testimony given by Jane Doe at the preliminary hearing was that she greeted defendant "half nude" at the door of her home. Jane did not testify that she was "half nude" when she let defendant inside her home. Rather, her testimony was that she was wearing a "black nightie" with no underwear. Even assuming arguendo this testimony could be construed as Jane being "half nude," there was nothing included in the "Circumstances" section of the probation report that contradicted this testimony. In fact, there was no description in the probation report regarding the specifics of her attire when she answered the door; it was simply not noted.
The probation report also states that Jane's neighbor had called the police on her behalf, and when police arrived at the neighbor's home, the neighbor advised the deputies that Jane had gone home "to put on pants." This statement is consistent with the preliminary testimony Jane was not wearing underwear and lends support to defendant's assertion Jane was "half-nude."
Even assuming there had been an inaccuracy regarding the description of Jane's attire (which we do not find), the trial court did not abuse its discretion in failing to strike this reference and replace it with the preliminary hearing transcript. The court presided over defendant's preliminary hearing testimony and expressly noted for the record that it had considered the transcript of that hearing in preparation for defendant's sentencing hearing. The court also presided over the change of plea hearing and was well aware of the facts underlying the offenses to which defendant plead. The facts of the underlying offense were both graphic and extremely disturbing. On this record, there would be little basis for finding the claimed inaccuracy to be prejudicial, even from the perspective of future parole proceedings.
As to defendant's claim the "Circumstances" section of the probation report contradicted Jane's testimony at the preliminary hearing that she struck appellant "in the head with a vodka bottle[,]" defendant ignores that the probation report expressly states, Jane Doe hit defendant "once in the head with the bottle of liquor[.]" Although defense counsel argued that defendant "likely" suffered a significant injury, there was no evidence presented at the preliminary hearing regarding the extent of his injuries. Accordingly, there is no contradiction nor are there any inaccuracies in the probation report regarding defendant's alleged injuries. If anything, the probation report is entirely consistent with Jane's testimony she hit defendant in the head with a bottle of liquor.
Accordingly, there was no contradiction between the preliminary testimony and the probation report. Given the facts included in the probation report were intended to be a summary of the relevant facts, this hardly supports defendant's claim the facts contained therein are unreliable. Defendant's reliance on People v. Otto, supra, 26 Cal.4th 200 does not compel a contrary conclusion. There, unlike here, the issue was whether hearsay evidence was admissible to prove a qualifying offense in a proceeding under the Sexually Violent Predator Act (see Welf. & Inst. Code, § 6600, et seq.). As mentioned, the trial court did not consider the presentence report when it sentenced defendant to the negotiated sentence. C. The Static-99 Test Results
Defendant next claims the trial court improperly failed to strike reference to the Static-99 test because the probation report did not contain a "Facts of Offense Sheet," as required by section 1203e, or any raw data as to how the Static-99 test was scored.
When a defendant has been convicted of an offense that requires him to register as a sex offender, "the probation officer's report shall include the results of the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) . . . ." (§ 1203, subd. (b)(2)(C).) The Legislature has required the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) "reflect[ ] the most reliable, objective, and well-established protocols for predicting sex offender risk of recidivism, [that] ha[ve] been scientifically validated and cross validated, and is, or is reasonably likely to be, widely accepted by the courts." (§ 290.04, subd. (a)(2).) The Static-99 has been designated the SARATSO for adult males required to register as sex offenders. (§ 290.04, subd. (b)(1).)
Although defendant disputes the accuracy of the Static-99 test as diagnostic tool, the results of this test are included in his probation report because it is the mandate of the Legislature. (§§ 290.4, subd. (b)(1), 1203, subd. (b)(2)(C).) Any decision to change the risk assessment tools utilized by the probation department rests uniquely with the Legislature and is beyond the purview of this court.
And, contrary to defendant's contention, section 1203e does not require "raw data" regarding how the Static-99 test was scored. Rather, section 1203e, subdivision (a) provides, as follows: "Commencing June 1, 2010, the probation department shall compile a Facts of Offense Sheet for every person convicted of an offense that requires him or her to register as a sex offender pursuant to Section 290 who is referred to the department pursuant to Section 1203. The Facts of Offense Sheet shall contain the following information concerning the offender: name; CII number; criminal history, including all arrests and convictions for any registerable sex offenses or any violent offense; circumstances of the offense for which registration is required, including, but not limited to, weapons used and victim pattern; and results of the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO), as set forth in Section 290.04, if required. The Facts of Offense Sheet shall be included in the probation officer's report."
The plain statutory language makes clear that only the "results" of the risk assessment tool are required, not the "raw data" regarding how those results were achieved. In any event, we agree a limited remand is required, as the probation report failed to include a separate "Facts of Offense Sheet."
The Attorney General argues that because the probation report in this case included all of the requisite information (defendant's name, his CII number, his criminal history, the circumstances underlying the offenses to which he pleaded and his Static-99 test results), remanding this case for preparation of a "Facts of Offense Sheet" containing this same information would be futile act and an inefficient use of judicial resources. While there is a certain amount of judicial inefficiency in remanding cases for clerical errors, remand in this case would not be a futile act. The language of section 1203e elucidates that preparation of a "Facts of Offense Sheet" is a mandatory part of the sentencing packet for a defendant who has been convicted of a qualifying sex offense. Pursuant to that section, the probation department "shall compile a Facts of Offense Sheet . . . ." (§ 1203e, subd. (a), italics added.) Section 1203e also mandates that "the probation officer shall send a copy of the Facts of Offense Sheet to the Department of Justice within 30 days of the person's sex offense conviction, and it shall be made part of the registered sex offender's file maintained by the Department of Justice. The Facts of Offense Sheet shall thereafter be made available to law enforcement by the Department of Justice, which shall post it with the offender's record on the Department of Justice Internet Web site maintained pursuant to Section 290.46, and shall be accessible only to law enforcement." (§ 1203e, subd. (c), italics added.)
Although the probation report contains all the requisite information under section 1203e, the preparation of a separate "Facts of Offense" sheet was mandated by law. Accordingly, we must remand for the limited purpose of directing the trial court to order the probation department to prepare the requisite "Facts of Offense" sheet and to comply with subdivision (c) of section 1203e. D. Future Harm
Although there is no Judicial Council Form, a "Facts of Offense Sheet" form is readily available on the Internet. For ease of reference, we attach a copy of this form to our opinion.
Finally, defendant's claims of future possible harm, which are speculative in nature, are not without remedy. If defendant, as an inmate, believes he was wrongly classified for prison housing due to the false information in the presentence report, he has recourse to an administrative-review process. Inmates are given the opportunity to contest their placement scores at the classification committee hearings. (Cal. Code Regs., tit. 15, §§ 3375, subd. (f)(5); 3376.1; 3084.1-3084.9 [describing appeal process for inmates and parolees with grievances].) Likewise, if an inmate believes he or she is erroneously made to obey more restrictive parole conditions than ordinarily imposed, the inmate can pursue an administrative appeal. (See §§ 3000, subd. (b)(5), (b)(7) [inmates have the right to reconsideration of parole conditions and the length of parole by the Board of Parole Hearings, also known as the parole authority]; §§ 5075, 5075.1, 5077 [Board of Parole Hearings shall review prisoner requests for setting of parole length or conditions and shall have authority to modify previously made decisions of the Department of Corrections on these matters].)
III. DISPOSITION
The judgment is affirmed. The matter is remanded for the limited purpose of directing the trial court to order the probation department to prepare the requisite "Facts of Offense" sheet and to comply with subdivision (c) of section 1203e.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
LEE, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------