Mendocino County Super. Ct. No. SCUKCRCR 0781665
The opinion of the court was delivered by: Jones, P.J.
Received for posting 12/3/10
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Kenneth Lyle Said pleaded guilty to incest (Pen. Code, § 285)*fn1 and the court sentenced him to the midterm of two years. On appeal, appellant claims the court: (1) failed to give him an opportunity to object to the sentence; (2) did not properly balance the aggravating and mitigating circumstances; and (3) erroneously characterized the offense as "serious" when it selected the midterm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts regarding the offense are taken from the probation report. K. was raised by her aunt and uncle in Wyoming and lived there until 2004. Some time after 2004, she moved to Willits to meet her siblings, including her biological brother, appellant. K. suffers from numerous "physical ailments," including "cerebral palsy and . . . reoccurring strokes, which leave[ ] her unable to care for herself."
On December 11, 2007, K., then 58, called the Willits Police Department to report that appellant "had raped her." She explained that appellant had, for several months, "insisted on having sexual intercourse with her, which she has participated in." K. told the police that because of her physical limitations, she "never felt as if she would be able to physically stop the sexual relationship between her and her brother, as he is physically stronger [than] her." K. told appellant "she did not want to engage in sexual intercourse with him, but he insisted . . . [and] verbally threatened her," telling her that "if she wanted to be part of the family, she need[ed] to comply with the family ways, which meant having sexual intercourse with him." When interviewed by the police, appellant denied having a sexual relationship with K.
The People charged appellant with rape (§ 261, subd. (a)(2)), inflicting pain and suffering on a dependent adult (§ 368, subd. (b)(1)), and sexual battery by restraint (§ 243.4, subd. (a)). In January 2008, the People amended the information to include one count of incest (§ 285). Appellant pleaded guilty to incest. The court dismissed the remaining charges and ordered appellant to appear at a sentencing hearing on April 2, 2008. Appellant did not appear and the court issued a no-bail bench warrant.
Over a year later, appellant was arrested in Southern California for "a DUI." In July 2009, he appeared in custody and the court set a sentencing hearing for August 2009. At the August 2009 sentencing hearing, the court ordered the Department of Corrections and Rehabilitation to perform a diagnostic evaluation pursuant to section 1203.03.*fn2
In the section 1203.03 report, the Department of Corrections and Rehabilitation opined incarceration was appropriate because "[t]he present case is of a serious nature" and appellant's "actions have placed the community at risk[.]" The report noted that appellant "took advantage of his disabled biological sister and forced her to have sex with him. It is not clear whether or not Mr. Said will re-offend, [but] it is clear he took advantage of a vulnerable victim for his own sexual gratification. He was supposed to report to the probation department; instead he left the county without permission. He was supposed to abide by the law; instead he broke the law and was arrested in Southern California for driving under the influence and false information to a peace officer. . . . Mr. Said is considered a risk to the community and others due to his continued substance abuse and escalating criminal behavior." According to the evaluation, appellant claimed the "situation with his sister was consensual" and that he "realized what he did was wrong and he regrets his actions."
The psychiatric evaluation accompanying the section 1203.03 report noted that appellant presented a "moderate risk of future violence" and a "low-moderate risk of future sexual offending." According to the psychiatric evaluation, appellant was "distraught over his legal and medical circumstances," but had "minimal empathy and remorse for the victim. . . . Mr. Said denied responsibility for the actions leading to his arrest. Instead, he reported the victim initiated the sexual relationship and falsified information to authorities when Mr. Said ended the sexual relationship. This explanation seems implausible given both the ...