10 11 13 14 15 JEFFREY ROS EN, DISTRICT ATTORNEY (ENDORSED) BAR NUMBER 163589 ALALEH KIANERCI, DEPUTY DISTRICT ATTORNEY BAR NUMBER 254198 MAY 2 7 2015 County Government Center, West Wing, Seventh Floor 70 West Hedding Street WWII) Hi YAMASAKI Chin! Butcan Supaitorwtetw univetsmm 5% {137,7 ESP San Jose, California 95110 Phone: (408) 792-2955 Attorneys for Plaintiff EN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA t, No. 81577162 THE PEOPLE OF THE STATE OF CALIFORNIA, . SENTENCING Plaintiff, MEMORANDUM VS- DATE: June 2, 2016 TIME: 9:00 pm. DEPT: 89 BROOK ALLEN TURNER, Defendant. I . INTRODUCTION The Defendant, Brock Allen Turner, (hereinafter ?Defendant?) was convicted as charged of three felonies after a three week jury trial that concluded on March 30, 2016. The Defendant was found guilty of the following three felony violations: Penal Code section 220(a) [Assault with Intent to Commit Rape of an Intoxicated/Uneonscious person]; Penal Code section 289(c) [Penetration of an Intoxicated Person]; Penal Code section 289(d) [Penetration of an Unconscious Person]. The California legislature classi?es a violation of Penal Code section 220 as a violent felony pursuant to Penal Code section 667.5(0) and a serious felony pursuant to unseemly: (13"1 577162) SENTENCING BRIEF -t 9 10 1Penal Code scutlun All three charges are Penal Code scollon 290(c) requiring the Defendant lo us a sex ull'enller for his, The Defend-um is probation lluu to his on Count 0m, I'znr'll Code 220 and under Penal Code Section The Pmbunml Department has mildb a rho and it has that the Court exercise and ll finding circumstances" ln order for the Defendant ll) be sentenced to a culan laiI lemll The People disagree Ihe Plobatlon mid recommendation in case. The Pruballon Depanmem's recummundullon docs lakc inlo cnnxidcruzlon the seriousness case, fact that lliu was ofmulliplu sex ms, and fact that he has not genuine rcnlorsc or accountabllily for his actions. (L in llic Welling oriurluury l7, 201 5, - Doc, a recent College graduate, hung uul her Miter. - and several nf- Friends at their family home in Palo Allo.' l- and her friends Wale Poly students and were home for the weekend. They had planned meal their mutual friend-V110 was a SHMUIH and residenl at Unlven'liy. Thuy begun dunking hard Ilquor mid champagne a: 10:30 STA MENT 01' in, - Doc hurl appruxlmrucly ol'uhlskuy before flu: girls' ol'f'un sulnr'ulrl campus ":00 in 11:15pm They met up puny uu l'llmpus (llc Kappa Alpha l'nllennli (hcl'cmunm' Ihcy snulullml and rlrunlr 01 hulls: party, Doc llvu bum ln shuts ol'wdku and 50,"ch Sharlly {he wcn: up from - ml- l'ulum m- dmmhory so that lhulr lwhu m: ml feellng well, could Allel_ and -lcl\ the puny, -L\nd 4 - Due were up. 5 um llme,- made some calls lo mam,- 2014 and had um Selma], They been daung =in a 'who was for .January 17. 1015, he am no! comumc any alcuhnl and warn ll, xleep early. Eaxly on January] 2:54 am 9 Haslem time (I 1:54 PST), hc received a phunc call rmm- Doe and The null lhruc mlnums, H.- was no: mm understand what she was saylng because he: spucch was and she was At about 3'16 3 m, 12 [.mcm lldurzl Doc culled-again, but 11: (Ild not answel. Doe lull .l voice maxi] On-phunc He llstelled the Voice mall and fell that while 13 14 15 lb 17 [8 19 - Doe who remnined unconscious. Peter Jonsson was straddling the Defendant while - me was inying, so she ended ihe call -Dnc then enlleil-ii 12,29 inn. and she was unable to get 01-, At nine, Tnylor and Adams were dispatched to an area near the KA house to a report ofa female who was unconscious, but breathing in a field Deputy Taylor amvcd on scene Ell approximately 1:05 am and located the femnle, later identified as - Doe She was on the ground lying in a fetal position behind a garbage She was breathing, but she was completely unresponswe ller dress was pulled up to her waist exposing her vagina and buttocks. lier underwear was on the ground next to her The back other hair was disheveled, knotled and sample!er covered in pine needles. She was wearing it grey sweatshirt that was removed lruin une arm (Exhibit One: photos of victim lit the scene [court copy filed under sealjt) The deputies were alerted to two males who had pinned down and restrained a sulyect (lutci identified as Brock Allen Turner. herein after the abnut 25 yards north. nepniy Admits Depniy Shaw rull tnwniih the men. while Deputy stayed with holding both nfthe arms down Carl-Fredrik Amilt was sitting on the Defendant's legs, Deputy asked the men what was going on and Mr. Innsson replied, "We found him on top of'thc girl!" He then hack inwards whcre- Dne was lying on the gruttnd. The Defendant remained silent, Deputy placctl handcuffs on the Defendant While titling so, he a strong mini nt'altnliul coming from the Defendant, his crotch arch uppciiretl disheveled, and he had what nppenred in he cylindrich hinge consistent with nn ereei underneath his pants. inie~ ht "ch nn l'lr'IS, inrernninly him eiilienie 77162) BRIFF 'iT-giani h. When Duputy Taylvr atayed Dne. who was lying on the ground, he checked for a pulse and heard her snow, in a very loud voice he asked several times, "Can you hear nic7'- Doe did not respond in any verbal attempts 10 Wake her Shonly tltel'caficr, pummedicx arrived and begun trcaiing- Doe They attempted to get a response fi'nm her by applying various teclmiques including a "shake and shout" and applying a physical pain stimulant, but mine were hnving :cx He and Mr Amdl at first thought It was a mutual hul as he gal closcr. 2 he gm ball fcollng Mr. him-son desonhell the woman was on buck, mohanlesn 'l and il luade like she was asleep or paused out while [he man was (In mp uf her aggressively 4 his hips Into hen As they gm closer, he could [all |he wumdn was inn moving at all, her eyes were closed. and her head was ulth to ma side, so he yelled Io get the Defendant's 6 Ha yelled Words in the cfwa of, "lley, she's fucking unconscious!" The Dfil'cndant 7 up, slowly go! off of- Doe, and began running rapidly away from hen Mr. 2: louswn and Mr. Arudl checked on the girl and noticed shu cmllinucd lo 9 unconscious and not respond to them asking her ifshc was okay. Mr. Jonsson then gave 10 chase afier the Defendani and caught up to him about 35 yards away. He > being Alone any males. she was in a relationship will 21 -inliinl um inn-ml on anyone nini TENCINU BRIEF l7 l'liOPl 3 party was much youngcr thun her, nrtr,' she really was lucing silly and joking aruund uhuut suddenly grabbed her and kissed her-t turned and pushed him away. she the lust thut she- wus al a college puny. Sha did not remember maktng the calls to her hoyfr:em1- The next momlng, she checked her phone call 10g and saw that she attempted Jlo eull her and't 12.30 anu, She also n5! remember making any orthesc calls - llm! at 1 100 pm . their mother dropped the group offal Stanford They wulkud ucmes Cumpu: tn meet up [llc KA house and they were Inside the party for Approx11nalely45 nunutcst 11:50 pm . they all went nulsidc tu "pee" in the bushes Thcy not go back mettle the party and tnstead, they Ialked to 'snrnu guys who were (the ofthe guys,- had a aiming who went to Cut Poly and S112 and talked uhnut this connection, At some ulnt when she was outside, the thought was odd, because they had nm talked much and theta was no Htrtatt'on, but she not really much nt'this tncident Later on Lhal the Defendant came back and tried It) ms hut whtle she we trying to milk to her 'l'hts time, he pu! lus hands on her want and she had to muve uwuy frum him At upptoxtmutcly l2: 16 um, one thhe In the group very tnroxtcutud and felt slck, so - and --dccitlcd to take her back lo-rooln to sleep.- was gone for aboul an hour and when she me back>> she suw the pollce and they were then: In hreuk up the She looked l'nr-nnd . ,t . not find her alsler blle hel stster wok Jn Uher home. 9 theLFer t' 20", about We females whu L'llcuunlul Ulc ult on - Duu um nu ml rhut SIIU ennre to the On Jutzc, the, .hl [)0111l'L'11) tantrum inn. (111557102) campus the weekend oi'imiuary 9 thl'mlgh January 12, zuls, to Visit - 2 Who was a Stanford student, While on campus, they attended ii party at the KA fraiemiiy where 3 -was introduced the She described the Defendant as living in the same 4 dormitory as-md they had nluluzll fi'iends, but were not close. She stated rhai 5 (luring the party, she and--were dancing on a table and the Defendant followed (i them onto the table She described the Defendant as being flirtatious with herthen started ll) dance behind her and tried to turn her around to fnee him. She fell uncomfortable and tried to turn her body away St) that he would not be 9 directly "behind" her. He became really "touchy" and put his hands on her Waist and stomach. 10 He even put his hands on her upper thighs, She felt more exceedingly uncomfortable and got flUWll offoftlie tliblc She said the Defendant "creeped" her out because ofhis persistence, (See 12 Exhibil Two. portion ofpolice report referencing incident.) 1} Prior Arrest 1nd HI [4 On November 15, 2014, ii approximately the Defendant and ii group of I5 males were walking on campus drinking beers Deputy Shaw first saw them holding what I6 appeared to be beer Cans so he stepped his palrol car and exited it. As saon as he walked [7 ml the gmup ot'mnles, they began to briskly walk away from his direction, Deputy Shaw IE walked faster to Contact them in urller to determine il'thcy were oflegal dn'nking age. The I9 gmin imiliedintely began running awny from him. Depuly Shaw yelled, "Slop! Police," but the leekerl heck at him and continued running. Deputy Shaw brundcastcd on his radio the: he 2i 'iihlxmipihsuii Knight llii yell "Ship! l'ollcel" scvurlil llniL'S. He insi Sight el'the suhicCts us they passed the south end of the lie lheii heard Depiuy yell. "Slop gel on the gioundl" a loud voice [ii1s37loij' l'h'Ol'l t) [4 l5 lb at a subject she had detained. Deputy Shaw located a discarded black backpack with Coors Light beer cans in it. The Subject who was detained identi?ed the Defendant as one of his swim teammates whom he was drinking with when Deputy Shaw ?rst saw them. scene. He returned wearing a bright orange tuxedo and Deputy Shaw smelled the odor of swim teammates. He noticed the Sheriffs vehicle pull up next to them. He had a black backpack on with Coors Light beers inside, as well a beer in his hand. He admitted trying to hide the beer and knew he was not supposed to have it because he was not 21 years old. He stated that when he saw Deputy Shaw approach, he made the decision to run. While running, he heard the verbal commands to stop, but continued evading. He said it was a split-second decision and he regretted making it. He admitted the backpack that Deputy Shaw found with beers inside ot?it belonged to him. The Defendant also was in possession of a fake driver?s license. (See Exhibit Three: police report l4-3l9-0270U.) Detectives noticed a text message in the ?Group Me" application that appeared on the Defendant?s screen. It stated, "Who?s tits are those?? (See Exhibit Four: photos ofscreenshot.) A search warrant for the Defendant's phone was obtained and his phone was searched by the Santa Clara County Crime lab. Detectives were unable to locate the text from the "Group me? I application or any photos related to that test. However, they leamed that when there is a third party application, the images are not stored on the phone and can be deleted by a third party member in the grmip. Deputy Shaw then called the Defendant on the phone and asked him to return to the leohol on him. The Defendant stated that he was headed to the Stanford football game with his Cell Phone Extraction Shortly after the Defendant?s arrest in the early morning hours ofJanuary 18, 2015, may; ?ft'tfntii'iais 77162) PtiOl?t it?s BRIEF 1 Marc the scurch uflhe all phone shed some light on") the bchavior mid characlcr during the |ime period in question and the year prior to n) 3 Attending Stunfunl Then: were many items indicating the Defendant was Engaging 4 'in excessive drinking and using dmgs. (I) Photo uflhe Dcfendant smoking from a pipe (Sec 5 Exhin Five. phnm); (2) Close up photo nl'a bong and another phow ol'a Stanford swimmer and Defendant's teammate bong in his (Exhibit Six: iwo phntos]; (3) Video 7 depicting 1112 Defendant smoking from a bong and drinking out Oh honIc uriiquor 8 immediately afier inking a "bong hik," which was captured on Ihe Defendant's phone un 9 December 27, 2014. (Sac E'Ilibil video DVD) nhennorc, are many text messages that are or drug use. both during the 10 I lime at Smnford and during his time in Ohio when ho was still in high schoolr On 12 iDucemhei' IS, 2014, he sun 3 message to friend--(ha! stifled, "Do you think I could buy some wax su we could do some dabs?" (See Exhibit Eight: [ext messagcs.) Dabs MB a highly potent form ofmanjuonu that is 'i'lIC 15 concentrated muss. They arc mus! similar in Appearance to either honcy bullet>> which IS why In In is referred in or known on am sum as "honey oil" or "hidden" Dabs are an increasing 17 problem on Campus am] With teens as Jn ullcmaiivc way :0 ingest marijmna.' There is another is group mcssugc nbnni pulling money tog-:thcr to buy 30 ram on Janunry 13, 2015, (See Exhibit Nine: um managesrnpr- oflhh vnpori 4 mm," min ii la [in [he ii'iimvi in. MM l'iJuwniwwnm 'ln'r ngih is i; anniinn Miran-Him: qur i mlwa min mm wuii Mnauui ni rim-rind using the . .Iymrl/L'r Lonccnirmc>> Umni i lumrl 'Tmcmumznair -m I There were many references lo buying. and shanng "weed" finm as early as April 2 I 1, 2014, when the Defendant was tn ottnt, throughout the Dcl'cndant's short tt'nte Stanford. 3 (Sec Exhtbit 'I'en: vanous text messagch The text messages also referenced doing acid or 4 tn find a "hunk up" to purchase etch] both in Pugh sehtml and whtle at Stanford, On 5 24, 20t4,_,ent a message the slaung, "I've got a a banker"! t'nt a good and [rip when we get hneh The Defendant responded, "I'm dawn rut 7 sun: (Sec Eleven; text exchange.) On July 25, 2014, while slill tn Ohio, the tz sent a tett mcssagc tn-- saying. "Oh dude I acid with-as! week" 9 --hett bragged about the prior week, which he was 10 taking LSD and MDMA together The Defendant responded, gotta fuckmg try thatt heard 1 I it's awcsomc (See Exhihtt Twelve: text messages) 12 Emily. Ihere is text message exchange between the Defendant and sister- 13 from June 3,2014, She asked htnt, "Did you rage last night?" He responded, "Yeah kind of, [l 14 was hard to find a placc to drink, But when we finally did could only drink for like an hour and 15 a half." She responded, "Hahn enjoy tt while lasts, the {inmost (stc) thing to look back on ls beer but no plnee to tt That go nwny tn eohcge." (See Exhibit 17 Thirteen. le'tt messagch IS m. LEGAL ARGUMEN Penn Code auction 1 defines the put-pose nrsenteneittg someum' I0 prison. .tt "The finds theme: that the for crime 'v Thu- put-push it'hest served by terms propomonute to the 11f the affem'e the nth, it tm'smuzt 777777 71! provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.? (Cal Pen Code 1 l70(a)(l). (emphasis added.)) Moreover, the general objectives ofsentencing are outlined by the California Rule of Court 4.410 to include (I) protecting society (2) punishing the defendant, (3) encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses, (4) deterring others from criminal conduct by demonstrating its consequences, (5) preventing i the defendant from committing new crimes by isolating him or her for the period of incarceration, (6) securing restitution for the victims of crime, and (7) achieving uniformity in sentencing. The Probation Department?s recommendation that the Defendant be sentenced to a moderate term in the County Jail, which is generally four to six menths, does not adequately take into account the seriousness of the Defendant?s crimes. The recommendation does not encompass the totality of circumstances surrounding a pattern of behavior by the Defendant. 'i?herefore, it will not effectively punish the Defendant and ensure he will not be a danger to the community. Lastly, it does not re?ect the impact the case has had on the victim or the "l community, where the problem of campus sexual assaults is an epidemic. Thus it will not serve the very important purpose, which every sentence should strive to attain. to deter future crimes and in this case, sexual assaults on college campuses. l?rohatiniLl?'lggilng l?trt?int to {?gngl?udc A . Pursuant to Penal Code section the Defendant, because he was convicted oi?a violation of Penal (?ode section 220, is statutorily ineligible for probation. ?Except in unusual cases where the interests of justice would best be served if the person is granted 23 prohation, probation shall not be granted to any person who is convreted of violating paragraph 24 ll (Bl577lti?) BRIEF 41" (7) of subdivision of section 261, subdivision of Section 286, subdivision of Section - 288a, subdivision ot?Section 289, or Section 220 for assault with intent to commit a speci?ed sexual offense.? (Cal Pen Code (emphasis added.? The Statute further clarifies that: ?When probation is granted, the court shall Specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by the disposition.? (Cal Pen Code Furthermore, prior to granting probation the court must go through the factors listed in California Rule of Court 4.413(b) in evaluating whether the interests of justice woald be served. (Id) 1. 4.41303) Probation Eligibility When Probation is Limited Probation if the defendant comes under a statutory provision prohibiting probation "except in unusual cases where the interests of justice would best be served," or a substantially equivalent provision, the court should apply the criteria in to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule or court 4.414 to decide whether to grant probation. a. Criteria in Facts Showing Unusual Case Related to Basis for Limitation on Probation. The following facts may indicate the existence ofan unusual case in which probation may be granted if otherwise appropriate: a fact or circumstance indicating that the basis for the statutory limitation on probation, altl'iough technically present, is not fully applicable to the case, including: The fact or circumstance giving rise to the limitation on probation is, in this case, less serious than the typically present in other cases {waiving the some predation limitation, and the defendant has no recent record of l?mplm lumwi (81577102) SENTENCING BRIEF -i3 1 committing similar crimes or crimes ofviolenee; (Cal Rule ofCt. (emphasis added.? 2 Contrary to the Probation Department?s assessment classifying this crime as ?neutral? 3 in the criteria for Rule 4.4 4(a)(l this case is not substantially less serious than the 4 circumstances typically present in other cases involving the same probation limitation. In fact, 5 unlike most violations ofl?enal Code section 220, Assault with Attempt to Commit Rape, the 6 Defendant here was successful in completing a sex act, and found guilty of violating both Penal 7 ICode Sections 289(d) and 289(e). After completing those sex acts, he then continued to assault 8 the vulnerable victim with the intention of raping her behind a dumpster in the dark. Notably, campus sexual assaults have been rampant across the country, however, the 10 circumstances ofthis case are exceptionally more serious than those that typically occur. The I fact that two independent bystanders had to intervene to prevent the Defendant from 12 completing the rape, makes this case more egregious than other cases of assault with intent to 13 I commit rape. The Defendant?s attempt to flee, and his physical attempts to continue to get 14 away from the Good Samaritans who caught and restrained him, ?arther illustrate the threat and IS menace the Defendant posed to the victim and the community at large. to 17 The seriousness of this case is apparent in the facts that were presented at trial. It is 18 abundantly clear that on the night in question, the Defendant was on the prowl and attempted to It) "hook up" with women who were strangers to him, and who were clearly not interested in his 1 '1 sexual advances. Additionally, this assault occurred a week alter he was similarly aggressive with another female, at a different fraternity party, at the same location. That female came I forward and described the Defendant as making her feel uncomfortable. I I i I SFN BRUTF -14 i Hcforc llie assault ini- [303,112 unsuccessfully went afler her sister 2 - any sort or lnlercsl from - In fact, - was actually 1 itinka l0 lhi: Defendant's lhen -and she did inn even have a Conversalian or 4 with {116 Defendant Despite his lies lliai there was same suit between 5 'lnmselrnn-boih at ml and in mi In was abundantly clcar from -temm0n)' inn she was completely caught orrgunnl by his mulliple (0 kiss 7 lit-,r night. Slic even had to gut away from him aflcr he grabbed waist, and she Jlerltd ll 'Iicr{mint-mhisbelinvior She 1; IO case arosci I I There has been an attempt by llia and others in support ofhim, to minimize 12 his cunducl in this case, conduct lhzil is typical at parties on college campuses, the 13 fact ililii "some pctiplc" arc "promiscuous" a! cullege panics does not absolve tlic Defendant of 14 his conduct and lhe manner tliit he violated both - Due and her sislcr-Evcn l5 (linugli lie was (wice [#39ch b- lie felt it was acceptable to pursue he! sister, - l(i Doe, lam that night when she was alone and inebi-iated, He purposefully lonk her to an l7 area, away from all ol'xhc puny goers, to an area that was dimly lil, and assaulted list 13 'iin the ground behind a dumpster. acllbarnicly look advantagc ol'tlie llici that she was so l9 lnln'ucmcd that slh.' iinl ftiim ii sentence, let alone keep lint open or stand, Tliis lichai lm' ilinl 3'0" find on campus, bul il is more akin in ll 20 Jhcliavmi 15 mil [yplx'dl a i clung lut [lrcy llic pi cy iti tlii>> was a young \vomzm who ma Fl iilini 2: much Hill] was rii pl'mci'l licrselli (815771! l: l'mpl After phyalcully removlng her underwear and digitally penetrating her for some time. czitusinl,Y lacerations to her genital area. he continued tn assault her and attempted to rape her until he was interrupted and stopped by the otlx'cr students Once he did not make any attempt in help her up, or to help her get her cluthes on, or to make sure she was physically final Rnther he run away and left her there half-naked and cilmpletely unconscious and incoherent. But for the nt'the twu Good Samaritans. the Defendant would have I completed the penile penetration of- Duo. Ultimately, the that that the Defendant prayed upon an intoxicated stranger on a college campus should not be viewed as a less serious crime. than were to assault a stranger in Downtown Palo Alto, 'l'hu recommendation by does not take into account the global ramifications 'the Defendant's conduct has had on not unly- Doe and her family, hut the greater cummunlty and students on Stanford's campus. This case did not just attract public headlines because a star athlete. yet again, was accused a sexual assault. This case touched on the nerve nfthe because of the audacious and callous manner that the Defendant annulled a completely female in public This case appealed to the pulse ofthe cummunity because the Defendant run and to get away, and white nmny other cases, he was only apprehended by lwo brave students who chased him down and ensured he would :Imwcr the uulhulltics For whit! they observed They rcpurtcd what they saw and stopped it because it .30 clearly shocked their cause cc, as ll would shock the unscience ofany ordinary in iihliimg citizen. wi mule semis case, - Duo and ln-r family zlu. and equally impurulnt the on Slszunl's campus do nut lukc rut-u the dues mu m- lhi: Case The Fountch nt'lhe Aaiociatlou tll'Slullt-nls lilr Sexual Assault (Bl 577102) mum: l'l, 9 to 12 ?rft b. "H'l?lvi tunic: (131572162) Prevention (ASAP) wrote a letter and circulated a petition depicting the ?profound impact the sentencing of Brock Turner will have on the entire Stanford community.? The attached letter describes how the Defendant?s actions ?raised serious concerns about campus safety," and that many students feared walking alone at night because ?anyone can become a victim of sexual violence, as evident by Mr. Turner?s actions.? The students also raised concerns that ?a light sentence, such as probation or a few months in jail, would send the incorrect message that this was not a serious crime. This would undermine the trust in the legal system at large, diminish reporting and possibly make the Stanford community a more dangerous place for all.? The students also describe that every member of the class of 201 8, which the Defendant was a part of at the time of the offense, ?was required to listen to hours of speeches on the importance of acquiring consent and not engaging in sexual activities when alcohol is involved or the other person is unconscious and unable to give consent.? (See Exhibit Fourteen: letter Founders of the Stanford AssociatiOn for Sexual Assault Prevention.) As of the ?ling of this memorandum, 255 students signed this letter and petition in support of sentencing the Defendant to prison. The impact of this case on the Stanford community is signi?cant. (See Exhibit Fifteen: Letter from Michelle Landis Dauber.) Given the magnitude ofthe case, which was solely caused by the Defendant?s actions, this Court should not find that this case is a less serious crime warranting a finding ol?unusual circumstances; it is in fact more serious than i l0 other similar cases demanding a considerable punishment that is commensurate to the global effects of the Defendant?s actions. Rule Facts Limiting the ?efentlant?s (lulpability: There Was no ?ireat Provocatien, Coercion, or Duress.? SENTENCING BRIEF .l L31 9 A fact or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, includes: The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; (Cal Rule of Court I The probation report listed this factor for the crime as ?neutral? in the criteria for Rule and listed in the comments section that it was ?unknown? whether the crime was committed because of an unusual circumstance such as great provocation, which is unlikely to recur. This is a misstatement of the facts that were presented in the police report and at trial. First, there is not one shred of credible evidence that the Defendant assaulted - Doe out of any provocation, coercion or duress from anyone. Second, the (feurt has received information that the Defendant made another girl feel physically uncomfortable with his sexual . advances a week prior to this assault at another party; clearly demonstrating that the Defendant?s behavior was recurring. Third, the evidence is clear that on the night - Doe was assaulted, he unsuccessfully tried to assault- more than once without any provocation. Hence, the Defendant?s past conduct at fraternity parties demonstrates a pattern of behavior, and not that he was provoked, or coerced to commit these crimes. Fourth, the Defendant?s repeated attempts to claim - Doe was awake and a willing participant were in direct contrast to the testimony of both Mr. Jonsson' and Mr. Amdt. It is impossible for someone who is unconscious and physically unresponsive to provoke, coerce or participate in any way in the acts the Defendant was observed doing. Mr. onsson?s and Mr. Arndt?s observations were corroborated by the fact that - Doc was unconscious from the moment I they saw her to minutes later when the first responders arrived, until well over three hours later. I i l?cgpliL (3157716?) I BRIEF ~18 6 7 . i The Defendant?s repeated claims to the contrary, both at trial and in his statement to probation, are not supported by the evidence, and demonstrate the depths of his denial and the great he will go to avoid responsibility for his actions. The lack of ownership for his actions is not the character of someone who warrants a ?nding of ?unusual circumstance.? Thus, based on the above, it is unclear why the probation report does not list this factor in rule as unfavorable, as that is the only reasonable assessment based on the evidence. The Court should make a finding that the facts of this case do not support a ?nding of unusual circumstances of great provocation, coercion or duress not amounting to a defense pursuant to both and (2. Defendant is youthful or aged, and has no signi?cant record of prior criminal offenses. The Defendant clearly is youthful and committed this crime while in his first year in college. it is also true that the Defendant had no prior criminal convictions. However, this Court should not rely on the Defendant?s youth as a factor in ?nding ?unusual circumstances,? because that would mean that any circumstance where someone is facing a probation ineligibility clause and they are youthful, they would be treated differently than others committing similar offenses. The reality of campus sexual assaults is that most ofthe people 1 who commit these types ofsexual assaults are typically in college and by definition ?youthful.? Therefore, in order to achieve the sentencing goal listed in 170(a) as deterring others from committing the crime. the Court should not give a benefit to the Defendant for his youth. To do so Would be sending the message that campus sexual assault defendants deserve special treatment, while campus sexual assault victims do not deserve the full protection ofthe law. l?mph't llill?L'l (P31577162) BRIEF Is.) 9 10 12 l3 l4 Rather the Court should rely on the totality of circumstances surrounding the Defendant's history to determine that he, unlike a typical high school student, competed competitively as a swimmer and therefore was more disciplined and had the ability to engage in goal oriented activities. He was able to get into Stanford's competitive swimming program and was succeeding in school. The same advantages that he was privileged to have should not be used to give him the benefit ofa light sentence. Furthermore, while the Defendant did not have a significant record of prior criminal offenses, his pending criminal case when he committed this offense, which also involved drinking, should not be overlooked. Thus this is not a situation where the Defendant?s youthful history only shows law abiding behavior. Indeed, the consideration of Defendant?s youthfulness and criminal history is appropriately applied in determining the appropriate prison term. As discussed below, it is after taking into account Defendant?s age and criminal history that the People are seeking the midterm, as opposed to the aggravated, prison sentence. B. (j'ii?cttinstances in ?t't'm'raniing :1 Prison Sentence a. Rule Victim was particularly vulnerable. In committing these crimes, the Defendant took advantage of a victim who was particularly vulnerable and could not protect herself. Adult sexual assault crimes are often committed against women who are highly intoxicated and unable to fend off the offender. In this way, alcohol is almost used a weapon, because the offender does not need to use force or I fear to ctfectuate the sexual assault. In this case, - Doe was extremely intoxicated, more I than three times the legal limit, and she also was unconscious during the time the Defendant uas on top of her sexually assaulting her. While this is technically an element of the crime, the i 23 fast that the Victim was so se 'erely intoxicated and unconscious for several hours after the i ?licui?tlc tg'ltuJiyt? 61577162) Plitll?l .li?S SENTENCING BRIEF CO 6 16 ll assault was stopped, should be taken into consideration and treated as an aggravating factor warranting a prison sentence. - Doe?s level ot?intoxication was so grossly . disproportionate to those cases that are typical for Penal Code 289(e) PC 289(d) violations, that this Court should evaluate this case as more egregious that justi?es a stiffer punishment. b. Ruie 4.423: Defendant?s prior conduct As mentioned above, the Defendant has no prior criminal convictions, but the probation report does not adequately depict the Defendant?s prior criminal history. Though he does not have an extensive criminal history, he does have a prior arrest for drinking. In that case he was confronted by campus police who were investigating underage drinking in public, and he ran from them ignoring numerous police orders to stop. He willfully ran away and discarded evidence of the crime he was committing. His actions caused a police foot chase which involved at least two officers. When he was ultimately apprehended he also was in possession ofa fake identi?cation card. That case is pending in docket 81576943. This prior offense is not typically treated very seriously. However the nature of the offense as a drinking violation, coupled with the fact that the underlying facts support a violation of Penal Code section I l4tt(a)(l are directly relevant to the Defendant?s later conduct with respect to the sexual offenses in this case, as it shows the Defendant knows the nature of his actions, even when he i has been drinking. Moreover, the fact that the Defendant had this pending case during the time ol'the current offense shows the Defendant?s blatant disregard for problems associated with his drinking and decisions made while under the influence. Thus, the Court should take it into consideration in assessing the risk the Defendant poses to the community and the type of behavior the Defendant was engaged in. This prior arrest, coupled with the current case, demonstrate that in his short stint in the adult world, he is a continued threat to the community. 34 it i int-?pip grill,ng month?s BRIEF -7.l C. 9ther Factors to Consider a. Defendant has not taken responsibility for his actions or expressed true remorse for his conduct. He lied in the probation report and while 2 testifying. 3 4 The Defendant testi?ed at trial and claimed that he was engaged in consensual mutual 5 behavior with - Doe. He claimed that she ?orgasmed? after a minute ofdigitally 6 penetrating her, and that he checked with her to see if she liked it. He also claimed that he only '7 stopped ?hooking up? with her to throw up and he told her that he was going to throw up, 8 I despite never throwing up. He made other various claims about gaining permission from 9 - Doe prior to engaging in sexual conduct with her body, which he had not previously It) I reported to law enforcement. He claimed the only reason he ran was because Mr. Jonsson had 1 grabbed him and became violent toward him, despite the fact that he previously told Detective 12 Kim he did not run during this incident. He claims that when he lett_ She was ?ne and I3 alert. After the Defendant testified at trial, the jurors heard his prior recorded statement with l4 Detective Kim in its entirety. The jurors also heard from Mr. Jonnson, who again af?rmed he l5 only touched the Defendant after catching up to him and tripping him. If the jurors found the 16 Defendant credible, they would not have convicted him as charged. They did not believe his 17 story, because his story was outrageous and was not supported by the plethora ofevidence 18 3 against him. They did not believe him, because his story was a lie. [9 After the Defendant was convicted, he was given the opportunity to give a statement to the 20 Probation Department. He gave the same story to the probation officer. that he testified to I 31 during trial: the same story that was not believed by thejurors. Astonishingly, he still maintains 7.3 t] that this was a consensual encounter. lle still insists that he only ran after Mr. Jonsson - I l?mplt' (81577163) BRIEF "22, testi?ed more than once, that the Defendant ran away well before anyone made physical I contact with him. He still maintains that- Doe was a willing and capable participant, I even though every piece of evidence points to the contrary. At the same time, the Probation Report inaccurately opines that the Defendant ?expressed sincere remorse and empathy for the victim.? It is baf?ing that the report does not reflect the disingenuousness of the Defendant?s "expression" ofremorse, while at the same time continuing to maintain his innocence. The fact that the Defendant is continuing to perpetuate this lie is telling about his character. He is still in denial about his criminal culpability. He is still in denial about violating - Doe?s body and her right to choose with whom she engages in sexual activity. He is still in denial about the deliberate choices he made, which caused him to be in the situation he ?nds himself. In his statement to probation he seems to regret his choice, not because of how it resulted in a young woman to be sexually assaulted, but because it has so greatly affected his life as though he is the ?victim? of ?peer pressure.? No one pressured him into sexually assaulting an unconscious female. He feigns remorse and claims to ?feel bad? about - Doe, but how does one feel bad about something they have yet to take full responsibility for? - Doe spoke to the probation of?cer and was clear and articulate about the impact this case had on her life, but at times empathetic towards rehabilitation. That empathy does not mean that she wants the Defendant to not spend a day in prison. When she spoke to the Probation Department, it is not clear that she understood her expressions of empathy would be used against her, and essentially would be providing a recmnmendation that the Defendant should get a ?slap on the wrist." When the report was ultimately completed, a copy was tlirwardetl to her. as is mandated by [Utility ?3 Law, and she became upset that her words were 33 5 used in a way to assume she did not want the l'Jefendant to be punished for his actions. She a net (Bl 577 62) alum: -23 ,r I further we: shocked and outraged the Defendant appears te be in complete dental about \'lill'elling her, the words, reiterating the lies he lulrl, rc-vtetimized her and made her feel as a though the truly does not appreeinte the ramifications nfhis actions and what he did 4 teller. ln milking its recommendation for a moderate county )nll sentence, the Probation 5 Repert ironically states that, "Perhaps, just as but sometimes ttverlonked, are the 6 victim's wishes ax to the When - Dot: spake tn the 7 Department, she had no idea that they were lo make a four to set month that reehmmendittion docs net refleet her feelings en the outcome efthis case, nor does it 9 eneupeuletc the mic impact the Defendant's actions have had on her and her family. (See It) Fxhiblt Sixteen' lerzers t'rem - Doe, 12 Additionally, the Defendant attempts to persuade the Court to allow him to remuln on probation so that he can teach others from his actions. In his letter he states, "l know I can [4 unpnet and change people's almutlm wwartk the culture surrounded by huge end is lSCXuell pretnixculty that protrudes through what people think are at the core et'betng a college it; student later mites, "My peer decision milking and excessive hurl someone that 17 night and Wlih talk it all back How can someone help others, when they never lx sexuitlly Vicllm" How enn someone help when they blame l'l pressure, cullegc culture tni lItclr actions. which here pl't'dmoly entl 20 impulsive? 'i :1 Finally, the Dut'enttint in his statement pinhrittelt lied ever mint; 7' lle Ilppk'tllh te make ll seeni its his first limc drinking when he first went to Stunt'ertl i l] 'ittutel-nit) ,it .t tulitn [Lilly lle stile t'itnting {rum town in Ohitn I had neter Li 1, ?iti mom 5 Si ~2~l really experienced celebrating or partying that involved alcohol.?4 He further claims, he was an ?inexperienced drinker and party gocr.? (1d) Not only did the evidence from his cell phone records, referenced above, clearly Show he was already an experienced drinker in high school who regularly partied, he also testi?ed that he was not so drunk that he did not know what he was doing and had the ability to choose to run when people caught him. The Defendant?s words and actions contradict each other. Moreover, the cell phone evidence also showed that he had routinely engaged in smoking marijuana and experimenting with other drugs, speci?cally acid. Thus, he was not truthful with the probation department or this Court about his experience with drinking and partying, much like he was not truthful about taking advantage of- much like he was not truthful with the aftermath of being caught by the Good Samaritans. 1' Iv. The Defendant?s maximum exposure is fourteen years, calculated as the maximum of eight years on Count Two, consecutive to the maximum of six years on Count One pursuant to California Penal Code section for a total term of fourteen years. The maximum exposure is calculated by applying Count Three as PC 654 to Count Two. The People respectfully recomt end the Defendant be sentenced to the midterm of Count Two, which is six years in prison, with the midterm of the remaining counts to be run concurrently to Count Two. I Quote taken from Defendant?s letter attached to Presentenee Probation Report. 1 In lieu ofthe term provided in Section a full, separate. and consecutive term maybe imposed for each i Violation ofnn offense speci?ed in subdivision ifthe crimes involve the same victim on the same occasion. A term may be imposed consecutitely pursuant to this subdivision it'd person is comicted ot?at least one offense speci?ed in subdmsion lfthe term is imposed consecutively pursuant to this subdivision, it shall be served mnseeutitcly to. a 1y ('ther term and shall commence from the time the person otherwise would have been released from imprisonment. the term shall not be included 111 any determination pursuant to Section I 1. Any other tem. imposed subsequent to that term shall not be merged therein but shall commence at the . time the prison otherwise WUUitl have been released from prison. 13-. {its iimnji?itt15771?623 SliNl'lthf?lNG BRIEF -25 i 1 This sentence is more reflective of the seriousness of the case, the procedural posture of the 2 case, conviction post-trial and not an early plea, and it is more uniform with similar sexual 3 assault cases in our County that result in convictions alter trial. 4 The Probation recommendation ot? four to six months appears to be based on a one- 5 sided consideration of solely the Defendant?s interests. It reeks of the stigma that campus 6 . sexual assaults often receive by a small portion of the community. That stigma needs to be 7 changed, so that defendants who perpetrate crimes on college students should not be treated 8 specially, just because their victims were also drinking. The Probation recommendation treats 9 this case as though defendants in campus sexual assault cases should receive a discount for 10 their crimes merely because in the past, people would often turn a blind to these types of crimes or resort to victim bashing to justify their behavior. Many simple felonies that are not 12 sexual assault cases receive a similar recommendation of four to six months as a bene?t for an [3 early plea. The Probation recommendation of four to six months in this case falls so short of the [4 seriousness of this case that it should not even be objectively considered. Justice in this case means sending the Defendant to prison and holding him accountable for this very serious p?A l6 crime. sentencing the Defendant to a substantial prison term, this Court will send a message I7 I to him, - Doe, and the greater community that sexually violating a woman is never 8 acceptable, especially when she is intoxicatedl?wpl-?x lmnul (Bl5?77ltil) BRIEF 436 Count 1 PC 220: Assault 2 4 - 6 4 years with Intent to Commit Rape (midterm Concurrent to of an Intoxicated Person i Count 2) i ll Count 2 PC 289(e) 1 - 6 8 6 years Penetration ofan Intoxicated (midterm) Person Count 3 PC 289(d) 3 6 - 8 6 years Penetration of an Jr midterm concurrent and Unconscious Person PC 654 to Count 2) 5! Total Term 6 years V- In sentencing the Defendant the Court must be mindful of the purposes of sentencing. A sentence, among other things, should encourage the defendant to live a law abiding life and prevent him from committing future offenses. It should strive to protect the community and it should seek to deter others front committing similar acts. Many of the objectives ot?sentencing will not be served unless the Defendant is sentenced to a signi?cant prison term beyond the mandatory minimum required by law, and definitely beyond that recommended by probation. this ("curt should sentence the Del?endant to a midterm of six years in order to protect society, to punish the [in his multiple. sex crimes, to encourage him to lead a law abiding lil?e the future and to deter him and others from committing new and similar crimes. i i I?vutilz't lltli-r?l {Bl577l031 ii l?litH?l [?1.55 BRIEF . .37 i I Dated: May 27, 2016 Respectfully submitted, JEFFREY F. ROSEN DISTRICT ATTORNEY ALALEH KIANERCI i; Jill/l? Bx? A . i Deputy District Attorney l?mpiv lmm?r (81577162) ~28 t: t: If; Earn?q 5 DC effJ'E) Rll?'l?tl I .qum than? I mt.? on.- u. H'lmtl an Juhm I OF SERVICE People v. BROCK ALLEN TURNER ss: Docket No. 81577162 STATE OF CALIFORNIA COUNTY OF SANTA CLARA I am employed in the (?omuy ot?Santa Clara, State of('alithmia. lam over the age years, and not a party to the atmvc-entitled actioth My business address is: Of?ce of the District Attorney. 270 Grant Avenue, Fourth Floor, I?alo Alto, CA 94306 On May 27, 2016, I served the following documents upon the interested parties in this action by the method(s) indicated below: People's Sentencing Memorandum tl?r? CLASS MAE: by placing a true copy thereof, enclosed in a sealed envelope, for postage and deposit with the US. Postal Service on the rmme date it is entwined for mailing, and addressed as follows: 1 BY EMAIL TRANSMISSION: by c~mailing a one copy thereof to the recipient at the e~mail address indicated: n-tielsael at ma rm *s ruog??r?p ca iasu lacrim ta 152mm BY PONY MAIL: by placing a true copy thereof, enclosed in a sealed envelope, addressed as; follows: 3? under the laws ot'thc State ol?t'falifomia that the toregoing is 27, 2016, at Palo Alto, California. {521.4 La Lucy "cclillo I declare under penalty ot'pcrjur true and correct and that this declaration was executed (?ctzz??