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People v. Jauregui3/26/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Yura Phinn Jauregui was charged with two counts of forcible sodomy (Pen. Code, § 286, subd. (c)(2) ), two counts of forcible sexual penetration (§ 289, subd. (a)(1)), and six counts of committing a lewd act on a child age 14 or 15 (§ 288, subd. (c)(1)). Defendant entered a negotiated plea of no contest to the six lewdness charges, and the remaining charges were dismissed with a Harvey waiver. The trial court sentenced defendant to state prison for an aggregate term of six years four months.
On appeal, defendant disputes two of the trial court's findings that contributed to its decision to deny probation. Specifically, he claims the court erred by finding that he posed a danger to others and that he lacked remorse. We disagree and shall affirm the judgment.
FACTS
A. Underlying Offense
The victim in this case was the niece of defendant's girlfriend. The victim was 17 years old in July of 2000, when she reported to police that defendant had sexually assaulted her on two occasions. During both incidents, defendant was intoxicated.
The first incident occurred in August of 1997, when the victim went to baby-sit defendant's son at the home defendant and her aunt shared. After the victim arrived, defendant did not leave as planned. He sat next to her and touched her genital area. When she told him not to do so, he pushed her on the ground and tore off her clothes. He then had anal intercourse with her, repeatedly telling her "it felt good" and that he was going to turn her into "a real woman." She was crying and screaming for defendant to stop, and she even bit him at one point. Following the assault, defendant threatened to shoot her in the head or to shoot her family if she told anyone what had happened.
The second incident occurred in the summer of 1999, when the victim slept over at defendant's home. During the night, defendant got into bed with her. He told her that if she screamed or pulled away, he would get his gun and shoot her. He then had anal intercourse with her. The victim was crying and shaking during the incident.
Police arranged to have the victim make a pretext telephone call to defendant, which was recorded. The victim initially told defendant that she wanted to talk about "what happened" and how he had "raped" her. Defendant eventually admitted he had "molested" her and said it would not happen again. Defendant said the victim should tell her mother she had lied and "to just forget about it," and he asked her not to report the matter to police. He said he was intoxicated and thought it was a "mutual thing" since the victim "played with (his) thing." He said he wanted to work things out and asked for forgiveness. But when the victim repeatedly sought an apology, defendant would respond by referring to potential consequences of his actions, including arrest, suicide, and emotional trauma to his five-year-old son. When the victim eventually indicated she would report the matter to police, defendant suggested that he would shoot himself in the head.
When he was later interviewed by the probation officer in this case, defendant admitted that he had vaginal intercourse with the victim on two occasions a couple of weeks apart. Defendant said his sexual contact with the victim was consensual and that on both occasions he stopped when she asked him to. Defenda
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