P. v. Osman
Filed 4/8/13 P. v. Osman CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
IRSHAD ABDISHEIKU OSMAN,
Defendant and
Appellant.
H037818
(Santa Clara
County
Super. Ct.
No. C1085577)
Defendant
Irshad Abdisheiku Osman appeals from a judgment
of conviction entered after he pleaded no contest to lewd and lascivious
act on a child under 14 (Pen. Code, § 288, subd. (a))
and admitted that he had substantial sexual contact with the child during the
commission of this offense (§ 1203.066, subd. (a)(8)). Pursuant to the negotiated plea agreement,
the trial court sentenced him to three years in prison. On appeal, defendant contends that the trial
court abused its discretion in failing to reduce his score on the Static-99R
risk assessment form. He also contends
that the trial court’s failure to correct the probation report violated his
freedom and equal protection. We find no
error and affirm the judgment.
Statement of Facts
name="_ftnref2" title="">[2]
Thirteen-year-old
John Doe testified that defendant began teaching him about the Koran in January
2010 as a favor to his family. Most of
the tutoring sessions occurred at John Doe’s home, but others occurred at
defendant’s residence.
At approximately 4:30 p.m. on August 14, 2010, defendant picked up John Doe to take him
to the mosque. They left the mosque at
about 9:30 p.m. and went to
defendant’s residence. After John Doe
fell asleep on the living room couch, defendant told him to sleep on his
bed. John Doe, who was wearing his
clothes, then fell asleep on defendant’s bed.
John Doe was awakened when his
“butt started hurting.†The pain in his
rectum was seven on a scale of one to 10, with 10 being “really, really bad
pain.†His pants and underwear had been
pulled down below his thighs. Defendant,
whose pants were down to his ankles, was behind John Doe. Defendant’s penis was erect and had semen on
it. John Doe went to the bathroom,
cleaned himself, and saw semen on the toilet paper. John Doe then told defendant to take him
home.
Defendant drove John Doe to the
Safeway parking lot where they both exited the car. As they were walking to John Doe’s residence,
defendant said he had to go to work and left.
John Doe ran home and told family members what had happened. John Doe was interviewed by police officers
that night.
II. Discussion
Defendant
contends that the trial court abused its discretion in denying his request to
strike the second risk factor on the Static-99R coding form. He contends that this factor irrationally
distorted his assessed risk for reoffending and violated his constitutional
protection.
Background
The
probation report included a Static-99R, which assessed 10 risk factors. Defendant received a score of 4. He received one point for each of the
following: he would be 18 to 34.9 years
old when he was released from prison, he had never “lived with a lover at least
for two years,†he was not related to the victim, and his victim was male. As to the second factor, the comments section
of the form states: “Defendant stated
that he is single, and his religion prohibits living with a lover prior to
marriage.†Defendant did not receive any
more points because he did not have any nonsexual violent convictions or prior
nonsexual violent convictions, prior sexual convictions, more than three prior
sentencing dates, or any victims who were strangers. A score of minus 3 to 1 on the Static-99R
indicates a low risk, 2 or 3 indicates a low-moderate risk, 4 or 5 indicates a
moderate-high risk, and 6 or more indicates a high risk.
Defendant
objected to the use of the Static-99R at the sentencing hearing. His counsel argued that defendant was a very
devout follower of Islam and his religion and culture prohibit cohabitation
prior to marriage. Trial counsel stated
that the information in the comment section was “insufficient to alert the
religious issues involved.†He requested
that the trial court strike the point for this factor, thus reducing the score
by one point.
The
prosecutor objected to the motion to strike.
He argued that the Static-99R was “religion neutral†and the second risk
factor was “qualified†by defendant’s explanation in the comments section. He also noted that the Static-99R is “simply
a predictor,†and “should be given whatever weight it deserves.â€
The trial
court declined to strike the score on the second risk factor. It stated:
“With respect to the boxes on the form that Defense Counsel is asking
the Court to strike, I am not prepared to do that at this time. I understand the argument made by the Defense
with respect to perhaps the inadequacies of the Static 99[R]. Nonetheless, the law mandates that predictors
be checked and filled out, and it appears that the information that was
obtained was certainly accurate.
[¶] With respect to the
‘comments’ section, again, I think the comments adequately reflect what the
situation was with respect to Mr. Osman having any previous lovers. Again, I will indicate that I do understand
that there may be some inadequacies or insufficiencies with the Static 99. Nonetheless, they are the answers as given in
the report and will remain.â€
B. Legal Principles
A
presentence or probation report provides the trial court with relevant and
reliable information regarding sentencing.
(See § 1203.) If the 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 that 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 has 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).)
When probation is denied, the
report is forwarded to the California Department of Corrections and
Rehabilitation (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.â€
(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.)
Defendant
argues that the Static-99R does not take into account religious sensibilities,
noting that many religions prohibit cohabitation outside of marriage. Thus, he claims that the trial court abused
its discretion “when it [made] factual findings based on an irrational
inference.â€
title="">[4]
A trial
court abuses its discretion when its factual findings are not supported by
substantial evidence. (
Cal.4th 706, 711-712.)
Here, there is no question that the
probation report accurately reflects defendant’s answer to the second risk
factor, that is, that he had never lived with a lover for at least two
years. Moreover, the “comments†section
of the Static-99R allowed defendant the opportunity to explain his response to
this risk factor and to clarify that he was single and his religion prohibited
cohabitation. Defendant has not shown
that the information explaining his response to the second risk factor will not
be used in assessing his risk of reoffense.
Since the probation report must include the results of the Static-99R
for individuals, such as defendant, who must register as sex offenders, the
trial court did not have discretion to strike a risk factor that was factually
accurate. (§ 1203,
subd. (b)(2)(C).)
Relying on United States v. C.R. (E.D.N.Y. 2011) 792 F.Supp.2d 343 (
information “was misleading and led to an inaccurate risk assessment.†Defendant’s reliance on C.R. is misplaced. In
testimony regarding the minor’s potential for recidivism based on various
assessments, including the Static-99. (
concluded that the Static-99 was inapplicable to a minor who was convicted
solely of online child pornography. (
challenge to the use of the Static-99R.
Defendant
next contends that the trial court’s failure to correct the report violated his
First Amendment right to religious
freedom.
Here, trial
counsel noted that defendant was “a very devout follower of Islam and was
attempting to teach this young man the issues involving the Koran and taking
him to the mosques and so forth,†and it was very “troubling to think he could
go from a low/moderate risk category to moderate to high based on his adherence
to a cultural, and more importantly, religious principle.â€
“
‘ “[A]s a general rule, ‘the failure to object to errors committed at
trial relieves the reviewing court of the obligation to consider those errors
on appeal.’ [Citations.] This applies to claims based on statutory
violations, as well as claims based on violations of fundamental constitutional
rights. [Citations.]†’
[Citation.]†(
411 (Romero).) Since defense counsel never argued that the
use of the Static-99R violated his constitutional right to religious freedom,
he forfeited the issue on appeal.
Even
assuming that defendant has preserved this issue on appeal, we find that it has
no merit. The First Amendment to the
United States Constitution prohibits the “establishment of religion, or
prohibiting the free exercise thereof.â€
(U.S. Const., 1st Amend.; see also Cal. Const., art. I, § 4.) In Lemon
v. Kurtzman (1971) 403 U.S. 602 (Lemon),
the United States Supreme Court established a three-part test to evaluate a
challenge under the Establishment Clause.
Under this test, “a governmental
must (1) reflect a clearly secular purpose; (2) have a primary effect that
neither advances nor inhibits religion; and (3) avoid excessive government
entanglement with religion.
[Citation.]†(
584-585.)
Here, the
Static-99R, including the second risk factor, satisfies the first part of the
identifying a convicted adult sex offender’s potential for recidivism. (Lemon,
supra, 403 U.S. at p. 612.) As defendant has acknowledged, studies have
shown that the second risk factor is relevant to this purpose, because “a
person who has lived with a sexual partner for at least two years is less
likely to commit a sexual offense.â€
As to the
second part of the Lemon test, the
Static-99R has a “primary effect . . . that neither advances nor inhibits
religion.†(Lemon, supra, 403 U.S. at
p. 612.) It does not refer to religion
or religious beliefs, and it does not distinguish between male sex offenders
who are married and those who cohabit with a partner. Defendant contends, however, that the second
risk factor “impos[es] greater restriction on people because they exercise
their religious belief not to cohabitate before marriage,†and thus has the
effect of inhibiting religion. Though it
may be true that a convicted sex offender who does not cohabit for at least two
years due to religious beliefs is less likely to reoffend than one who does not
do so for non-religious reasons, there may be no such correlation. Since defendant presented no evidence on the
effects of a convicted sex offender’s religious beliefs and his potential for
recidivism, we reject his contention.
As to the
third part of the Lemon test, the
second risk factor of the Static-99R avoids “
‘excessive government entanglement with religion’ †(Lemon,
does not refer to any religion or religious practice.
Defendant’s
reliance on Katcoff v. Marsh (2d Cir.
1985) 755 F.2d 223, 234 is unpersuasive.
In Katcoff, the plaintiffs
challenged the Army’s program of providing chaplains to enable soldiers to
practice their religion. (
held that the program, with a few exceptions, was constitutional. (Ibid.) Here, defendant has not demonstrated that the
Static-99R interfered with his right to practice his religion. Inouye
v. Kemna (9th Cir. 2007) 504 F.3d 705 also does not support defendant’s
position. In Inouye, the parties agreed that requiring a parolee to participate
in a religion-based drug treatment program was unconstitutional. (Id.
at p. 711.) In the present case, a
positive score on the second risk factor does not compel defendant to
participate in any religion.
In sum, we
conclude that defendant has failed to establish that the second risk factor of
the Static-99R violated his First Amendment right to religious freedom.
Defendant
next contends that the failure to correct the probation report violated his
right to equal protection.
Here,
defendant failed to object on the ground that the Static-99R violated his right
to equal protection. Accordingly, he has
forfeited the issue on appeal. (
Assuming that defendant has
preserved this issue on appeal, there is no merit to his contention. Both the federal and state Constitutions
guarantee the right to equal protection
of the laws. (U.S. Const., 14th Amend.;
Cal. Const., art. I, § 7.) “ ‘ “The concept of the equal
protection of the laws compels recognition of the
proposition that persons similarly situated with respect to the legitimate
purpose of the law receive like treatment.â€
’ [Citation.]†(Cooley
v. Superior Court (2002) 29 Cal.4th 228, 253.)
means that an equal protection claim cannot succeed, and does not require
further analysis, unless there is some showing that the two groups are
sufficiently similar with respect to the purpose of the law in question that
some level of scrutiny is required in order to determine whether the
distinction is justified.†(
705, 714.) Once this prerequisite is
met, we then determine the appropriate standard of review. (Id.
at p. 715.) When a statute involves
suspect classifications or touches upon fundamental interests, we apply strict
scrutiny review and a statute will be sustained if it is necessary to further a
compelling state interest. (
1185, 1200 (Hofsheier).) However, “most legislation is tested only to
determine if the challenged classification bears a rational relationship to a
legitimate state purpose.
[Citations.]†(
Defendant contends that “sex
offenders who follow their religious teachings and do not cohabitate with
others before marriage†are similarly situated to “sex offenders with the same
record and profile under the Static-99R but freely live with lovers outside
marriage.â€
Assuming, as does the Attorney
General, that the two classes of sex offenders are similarly situated, we next
consider whether the distinction infringes upon a fundamental constitutional
right. Defendant contends that the
state’s use of the Static-99R touches upon his fundamental right to religious
freedom. We disagree. The second risk factor of the Static-99R
distinguishes between the two classes based on cohabitation, not religion. Under the Static-99R, all sex offenders who
have not cohabited, regardless of their religious beliefs and practices,
receive one point, while those who have cohabited for at least two years
receive no points. Since this
classification does not infringe a fundamental right, we must determine “ ‘ “ ‘if
there is any reasonably conceivable state of facts that could provide a
rational basis for the classification.
[Citations.] Where there are
“plausible reasons†for [the classification], “our inquiry is at an end.†’ †’ â€
(Hofsheier,
1200-1201.) As defendant has
acknowledged, studies have indicated that cohabitation is a relevant factor,
and thus the second risk factor furthers the legitimate state purpose of
predicting the potential for recidivism by convicted sex offenders. Since the second risk factor bears a rational
basis to the legitimate state purpose of protecting the public, it does not
violate defendant’s right to equal protection.
Defendant
also contends that his trial counsel was ineffective for failing to present
appropriate objections to the probation report.
“To prevail on a claim of
assistance of counsel, a defendant ‘ “must establish not only deficient
performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice.â€
’ [Citation.] . . . Moreover, prejudice must be affirmatively
proved; the record must demonstrate ‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’ †(People
v. Maury (2003) 30 Cal.4th 342, 389.)
Defendant’s
contention fails. We have concluded that
his constitutional claims have no merit and thus he cannot establish that he
was prejudiced by any deficiency in trial counsel’s performance.
III. Disposition
The
judgment is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
______________________________
Premo,
Acting P. J.
______________________________
Márquez,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] The
statement of facts is based on the transcript of the preliminary hearing.
