Filed 10/26/17 P. v. Matheson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. BRYAN PRENTISS MATHESON, Defendant and Appellant.

H043386 (Santa Clara County Super. Ct. No. F1555725)

Defendant was sentenced to 30 years in prison for ongoing sexual abuse of his girlfriend’s minor daughter. He challenges the trial court’s selection of upper terms on his three felonies and its imposition of a $259.50 booking fee. For the reasons stated here, we will affirm the judgment.

I. trial court proceedings

Defendant was charged by criminal complaint with continuous sexual abuse of a child under 14 (Pen. Code, § 288.5, subd. (a); count 1), rape of a minor 14 years or older (Pen. Code, § 264, subd. (c)(2); count 2), and lewd or lascivious acts on a child age 14 or 15 and 10 or more years younger than defendant (Pen. Code, § 288, subd. (c)(1); count 3). According to the probation report, defendant, who was 22 years older than the victim, was in a romantic relationship with the victim’s mother for many years, and the victim viewed him as a stepfather. Defendant sexually abused the victim from the time she was seven or eight until she reported the abuse at age 15.

Defendant touched the victim’s vagina over 50 times, and about half of those contacts involved digital penetration. The molestations first occurred after school when the victim’s mother was working, and they continued for eight years despite the victim telling her mother twice that defendant was touching her. The victim’s mother yelled at defendant and told him to leave her alone, but the abuse continued. Defendant attempted to rape the victim when she was 11 or 12, but retreated when she screamed, “ ‘No, I’m not ready, get away from me.’ ” In early 2015, defendant orally copulated the victim while her mother was sleeping, and some weeks later raped her while her mother was in the shower. The victim, then 15 years old, reported the abuse at school.

Defendant soon moved to Arizona, and was extradited to Santa Clara County on the felony warrant in this case. He waived his right to a preliminary examination and entered an open guilty plea to the charges.

The probation department recommended that defendant be sentenced to aggravated terms on each count. The probation officer expressed the view that defendant had fled to Arizona in an attempt to avoid the consequences of his actions, and that he was not taking full responsibility for his conduct by explaining that he would do things that he could not remember and get into bad situations when he drank alcohol. The probation report noted that defendant had put the victim through continuous abuse for approximately seven years, causing her unknown psychological and emotional damage. The report also noted defendant’s felony convictions for inflicting corporal injury on a child, first degree burglary and grand theft, in addition to misdemeanor convictions for DUI, battery, and obstructing an officer. The report identified four aggravating factors: the victim was particularly vulnerable; defendant took advantage of a position of trust; the crimes were carried out with planning; and defendant’s prior convictions were numerous and of increasing seriousness. The one mitigating factor identified was that defendant acknowledged wrongdoing at an early stage of the criminal process.

The trial court followed the recommendation of the probation department, sentencing defendant under Penal Code section 667.6, subdivision (d) to an aggravated 16-year term on count 1 consecutive to a full 11-year aggravated term on count 2, running consecutive to a full 3-year term on count 3 under Penal Code section 1170.1. In imposing sentence, the court stated the following: “I do adopt the probation report, particularly for their recitations of some of the facts in mitigation and aggravation. Particularly, let me go over those: [¶] Facts in aggravation pursuant to 4.421: The victim was, in fact, particularly vulnerable. The manner in which the crime was carried out does indicate a certain persistence in seeking out opportunities to be alone with the victim. And of course the most heinous one, if you will, is the defendant took advantage of his position as a stepfather to commit the offense, which is an incredible violation of trust. [¶] … I find that under (b)(2), prior convictions as an adult are numerous and increasing seriousness, based on the criminal histories attached. [¶] I have also reviewed the circumstances in mitigation and find that he voluntarily acknowledged wrongdoing prior to his arrest and at an early stage in the proceedings under Rule 3(b), and I accept his sincere expression of remorse made here in court. [¶] … [¶] In the end, though, there’s no getting away from the fact of continuous abuse and terrorizing of a child for about seven years in ways that are almost unimaginable and unspeakable. [¶] … [¶] I find that the defendant had reasonable opportunities to reflect on his actions and nevertheless resumed sexually assaultive behavior and, accordingly, I think that calls for severed and consecutive terms to be mandatory. Even if they weren’t, I would probably impose them anyway.”

II. discussion

A. Sentencing Choices

Defendant argues that the trial court abused its discretion by considering his abuse of the parental relationship to support two separate aggravating factors. He has forfeited that claimed sentencing error by failing to object in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.) Defendant made no objections to the contents of the probation report or the sentence itself. We nonetheless elect to resolve the issue on the merits rather than address whether trial counsel was ineffective for failing to preserve the claimed error in the trial court.

The trial court imposed upper term sentences based on the victim’s vulnerability, defendant having taken advantage of a position of trust or confidence, the manner in which the crime was carried out indicating planning or sophistication, and defendant’s numerous and increasingly serious prior convictions. (Cal. Rules of Court, rule 4.421(a)(3), (8), (11), (b)(2).) Defendant is correct in noting that his “stepfather” relationship with the victim can support either a finding of victim vulnerability or of his taking advantage of a position of trust or confidence, but not both. As several courts have recognized, that relationship alone cannot support both aggravating factors because the position of trust in a parental-type relationship is what renders the victim vulnerable. (People v. Fernandez (1990) 226 Cal.App.3d 669, 680; People v. Clark (1992) 12 Cal.App.4th 663, 666; People v. Robinson (1992) 11 Cal.App.4th 609, 615, disapproved on other grounds in People v. Scott, supra, 9 Cal.4th at p. 353, fn. 16.)

While the trial court did not specifically elaborate on the vulnerability factor, the probation report (which the trial court “adopted” in discussing mitigating and aggravating factors) attributed the victim’s vulnerability not to the defendant’s parental relationship, but to the victim’s young age (seven or eight years old when the abuse started) and the fact that it continued for many years. We agree that the victim’s age cannot constitute an aggravating factor here because age is an element of each offense. (People v. Ginese (1981) 121 Cal.App.3d 468, 476.) However, a finding of vulnerability independent of the victim’s age is supported by the record. The victim had twice disclosed the abuse to her mother, yet her mother failed to act, and that failure to protect left her particularly vulnerable to continued abuse. (People v. Smith (1979) 94 Cal.App.3d 433, 436 [victim vulnerability means “defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act”].) Accordingly, we find no error in the trial court considering the victim’s particular vulnerability and defendant’s taking advantage of his position of trust as independent aggravating factors.

Nor do we find any abuse of discretion in the trial court’s ultimate sentencing decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847 [“The trial court’s sentencing discretion must be exercised 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.’ ”].) In preparing for the sentencing hearing, the trial court read the probation report, which included a statement from the victim and contained several letters of support for defendant. Several of defendant’s family members were present at the hearing, and the court expressly acknowledged their support. Defendant apologized for his actions, and the court accepted his remorse as genuine. Still, it determined the aggravating factors—emphasizing particularly that “defendant took advantage of his position as a stepfather”—outweighed the factors in mitigation. That one factor alone adequately supports the trial court’s selection of the upper terms. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371.)

B. The Booking Fee

As part of the judgment of conviction, the court imposed a $259.50 criminal justice administrative fee (“booking fee”). Defendant argues that the fee violates due process and should be struck because there is no evidence that it represents the actual costs authorized by the governing statute. Setting aside whether defendant preserved his argument in the trial court, the argument is without merit.

Government Code section 29550.2, subdivision (a) provides: “Any person booked into a county jail … is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c), including applicable overhead costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise processing arrested persons.” Under subdivision (c), “ ‘actual administrative costs’ include only those costs for functions that are performed in order to receive an arrestee into a county detention facility.”

Consistent with Government Code section 29550.2, Santa Clara County Ordinance Code section A14-56 authorizes the county Board of Supervisors to impose a booking fee “not [to] exceed the actual administrative costs, including applicable overhead costs, incurred in booking or otherwise processing arrested persons.” (Santa Clara County Ord. Code, § A14-56(a).) The ordinance provides that “the amount of the fee shall be determined from time to time by the Board of Supervisors by resolution,” and that any increase in the fee may be adopted after notice and a public meeting. (Id., § A14-56(b).)

In 2006, the Santa Clara County Board of Supervisors calculated the cost of booking an arrested person into the county jail at $259.51, factoring in (1) salaries for booking and classification staff, medical and mental health staff, and pre-trial services staff, (2) county overhead, and (3) department indirect costs. This court has taken judicial notice of that fee calculation, as well as the Board of Supervisors’ June 20, 2006 resolution setting $259.50 as the amount of the booking fee.[1]

The resolution recognizes the Board of Supervisors’ authority to impose the booking fee and acknowledges that the fee “cannot exceed the actual administrative costs incurred by County but may include applicable overhead costs as permitted by Federal Circular A 87 standards.” The analyst’s memo states that the proposed $259.50 booking fee “is the actual cost of booking an individual into custody[.]” Those documents are sufficient to establish a booking fee comporting with Government Code section 29550.2. (People v. Aguilar (2015) 60 Cal.4th 862, 869 [“[T]he trial court correctly relied on the fee schedule set by the county board of supervisors based on actual cost data[.]”].) The statute does not require that the 2006 resolution be included in every case file in which the fee is imposed, or that the trial court make findings as to the validity of the fee. The statute does not impose any requirement as to when a booking fee must be recalculated, and defendant presents no evidence that the cost of booking and processing an arrestee has dropped below the costs calculated in 2006.

III. disposition

The judgment is affirmed.

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