JEFFREY ROSEN, DISTRICT ATTORNEY (ENDORSED) BAR NUMBER 163 589 ALALEH KIANERCI, DEPUTY DISTRICT ATTORNEY BAR NUMBER 254198 MAY 2 7 2015 County Government Center, West Wing, Seventh Floor 70 West Hedding Street DAVID H. YAMASAN swam 01110?!le San Jose, California 95110 Phone: (408) 792-2955 Attorneys for Plaintiff 3 quGa elm ?mm up ?pr 15;: oas- n'v THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA No. B1577162 THE PEOPLE OF THE STATE OF CALIFORNIA, SENTENCING Plaintiff, MEMORANDUM VS- DATE: June 2, 2016 TIME: 9:00 pm. DEPT.: 89 BROCK ALLEN TURNER, _Defenda_nt, . 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/Unconscious person]; Penal Code section 289(e) [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 Mic}; 'l'ut?ner (B1577162) SENTENCING BRIEF -l Penal Code section All three charges are listed under Penal Code section 290(0) requiring the Defendant to register as a sex offender for life. The Defendant is presumptively probation ineligible due to his conviction on Count One, Penal Code 220 and under Penal Code Section The Probation Department has made a recommendation regarding the sentence and it has recommended that the Court exercise discretion and make a ?nding of ?unusual circumstances? in order for the Defendant to be sentenced to a county jail term. The People respectfully disagree with the Probation Department?s assessment and recommendation in this case. The Probation Department?s recommendation does not take into consideration the seriousness of this case, the fact that the Defendant was convicted of multiple sex acts, and the fact that he has not demonstrated genuine remorse or accountability for his actions. II. STATEMENT OF FACTS In the evening of January 17, 2015, - Doe, a recent college graduate, hung out with her sister, - and several of - friends at their family home in Palo Alto.l - and her friends were -students and were home for the weekend. They had planned to meet their mutual ?iend, who was a student and resident at Stanford University. They began drinking hard liquor and champagne at approximately 10:30 pm. - Doe had approximately four shots of whiskey before the girls? mother dropped them off on the Stanford campus between 11:00 to 11:15 pm. They met up with -at a party on campus at the Kappa Alpha fraternity (hereinafter They socialized and drank alcohol both inside and outside of the KA fraternity house. While at the party, - Doe had two The following facts were adduced at trial or were reported to police during the investigation. (31577162) SENTENCING BRIEF ?2 shots of vodka and some beer. Shortly a?er midnight, the girls were split up from one another. - and wanted to return to - dormitory so that their friend, - who was not feeling well, could sleep. A?er- - and - le? the party, -and - Doe were split up. During this time, - Doe made some phone calls to her boyfriend, who was living in for graduate school. They had been dating since 2014 and had an exclusive relationship. On the night of January 17, 2015, he did not consmne any alcohol and went to sleep early. Early in the morning on Januarle, 2015, at approximately 2:54 am. Eastern Standard time (11:54 pm. PST), he received a phone call from - Doe and answered it. The call lasted approximately three minutes. He was not able to understand what she was saying because her Speech was unintelligible and she was rambling. At about 3:16 am. Eastern Standard time (12: 16 am. PST), - Doe called -again, but he did not answer. - Doe le? a voice mail on - phone. He listened to the voice mail and felt that while she was trying to make more sense when she was talking, she still sounded very intoxicated. - could understand parts of - Doe?s message, but other parts were unintelligible. It was clear - Doc was egrei'na? intoxicated. This voice mail was later provided to i Detective Kim and was played befo?e?rhe jury. 45 At approximately 3:18 am. Eastern Standard time (12:18 am. PST), - called - Doe and they had a 10 minute conversation. - could not make out what - Doe was saying. She was rambling unintelligibly. -wanted - Doe to'iind?her sister, because it was apparent she was unable to care for herself and she appeared to be alone. The phone call ended at 12:28 am. Immediately after the call with- - Doe called - and had a 35 second unintelligible conversation. - could not hear or make out People v. Turner (B1577162) SENTENCING BRIEF -3 wearing a grey sweatshirt that was removed from one arm only.2 (Exhibit One: photos of victim what - Doe was saying, so she ended the call. - Doe then called .at 12:29 am. and she was nimble to getah'dld of-. 3? if; At approximately 1:01 am, Deputies Taylor to an;ar& near the KA house to a report of a female who was unconscious, but breathing in a ?eld. Deputy Taylor arrived on scene at approximately 1:05 am. and located the female, later it identi?ed as - Doe. She was on the ground lying in a fetal position behind a garbage dumpster. She was breathing, but she was completely unresponsive Her dress was pulled up to her waist eXposing her vagina and buttocks. Her underwear was on the ground next to her. The back of her hair was disheveled, knotted and completely covered in pine needles. She was at the scene [court copy ?led under seal].) The deputies were alerted to two males who had pinned down and restrained a subject 1' . (later identi?ed as Brock Allen Turner, herein after the ?Defendant?) about 25 yards north. Deputy Adams and Deputy Shaw ran towards the men, while Deputy Taylor stayed with - Doe who remained unconscious. _was straddling the Defendant while holding both of the Defendant?s arm? down. _was sitting on the Defendant?s legs. Deputy Shaw asked the men what was going on and Mr. _replied, ?We found him on top of the girl!? He then pointed back towards where - Doe was lying on the ground. The Defendant remained silent. Deputy Shaw placed handcuffs on the Defendant. While doing so, he noticed a strong odor of alcohol coming from the Defendant, his crotch area appeared disheveled, and he had what appeared to be a cylindrical bulge consistent with an erect penis underneath his pants. 2 Photos of victim's state on 1/18/15, previously admitted into evidence. [39pr (B1577162) SENTENCING BRIEF -4 When Deputy Taylor stayed with - Doe, who was lying on the ground, he checked for a pulse and heard her snore. In a very loud voice he asked seVeral times, ?Can you hear me?? - Doe did not respond to any verbal or physical attempts to wake her. Shortly therea?er, paramedics arrived and began treating - Doe. They attempted to get a response from her by applying various techniques including a ?shake and shout? and applying a physical pain stimulant, but none were successful. During their assessment at the scene, she vomited once, but did not regain consciousness. Deputy Taylor accompanied the victim as she was transported to Valley Medical Center (hereinafter at 1:30 am. Inside the ambulance, Deputy Taylor again attempted to wake - Doe every 15 minutes. Deputy Taylor observed EMT technicians place an LV. in her arm and she still did not regain consciousness. Deputy Taylor reported that - Doe remained unconscious throughout the ambulance ride and the check in process at the hospital when she arrived at VMC at 2:00 am. She ?nally regained consciousness at approximately 4:15 am. - Doe was medically cleared at 4:30 am. and taken to undergo a SART exam. Her blood was drawn at 7: 15 am. and at that time, her blood alcohol concentration (Hereinafter was 0.12%. A back extrapolation of - Doe?s BAC at the time of the assault placed her intoxication level at approximately 0.22% BAC, almost three times the legal limit. According to Santa Clara County criminalist Alice King, this does not account for the dilution of her blood alcohol content due to the Saline LV. that was given to her. Thus, her blood alcohol content was likely much higher, but it is impossible to know how high. Deputy Shaw interviewed Mr. .nd he indicated that at approximately 12:55 run, he and Mr. -were riding their bikes to go to the party at the KA house when he noticed a male and female lying on the ground near the dumpster and it appeared that they were People v. 11111193 (B1577162) SENTENCING BRIEF ~5 having sex. He and Mr.- at ?rst thought it was a mutual interaction, but as he got closer, he got a bad feeling. Mr. described that the woman was lying on her back, motionless, and it looked like she was asleep or passed out while the man was on top of her aggressively thrusting his hips into her. As they got closer, he could tell the woman was not moving at all, her eyes were closed, and her head was tilted to the side, so he yelled to get the Defendant's attention. He yelled words to the effect of, ?Hey, she?s fucking unconscious!? The Defendant looked up, slowly got off of - Doe, and began running rapidly away from her. Mr. and Mr. - brie?y checked on the girl and noticed she continued to appear unconscious and did not resPond to them asking her if she was okay. Mr. then gave chase after the Defendant and caught up to him about 35 yards away. He told the Defendant to stop many times, but the Defendant continued to run. Mr. caught up to the Defendant and did a leg sweep to trip him, which caused the Defendant to fall. According to Mr. -, it looked like the Defendant was going to run away again, so Mr. tackled him to the ground and held his arms down as Mr. -caught up to them and held the Defendant?s legs down until help arrived. Deputy Adams transported the Defendant to the police station where his blood was drawn by a phlebotomist at approximately 3 :15 a.m. His blood alcohol content was back extrapolated to be at 0.16% BAC. After a SART exam was performed on him, the Defendant was interviewed. This interview was played for the jury after the Defendant testi?ed. The following day, Detective Kim interviewed - Doe and - - Doe did not know what happened to her. She remembered being at the party and waking up in the hospital. She did not remember being alone with any males. She was in a relationship with and did not intend on ?hooking up? with anyone. She indicated that everyone at Bands (131577162) SENTENCING BRIEF -6 the party was much younger than her, and she really was being silly and joking around about the fact that she was at a college fraternity party. She did not remember making the calls to her boyfriend - The next morning, she checked her phone call log and saw that she attempted to call her sister and Julia at 12:30 am. She also did not remember making any of these calls. - indicated that at 11:00 pm, their mother dropped the group off at Stanford University. They walked across campus to meet up with -at the KA house and they were inside the party for approximately 45 minutes. At approximately 11:50 pm, they all went outside to ?pee? in the bushes. They did not go back inside the party and instead, they talked to some guys who were outside. One of the guys, had a sibling who went talked about this connection. At some point when she was outside, the Defendant suddenly grabbed her and kissed her. - turned and pushed him away. She thought this was odd, because they had not talked much and there was no ?irtation, but she did not really think much of this incident. Later on that night, the Defendant came back and tried to kiss her a second time while she was trying to talk to her friend. This time, he put his hands on her waist and she had to move away from him. At approximately 12: 16 am, one of the girls in the group was very intoxicated and felt sick, so - and-decided to take her back to - room to sleep. - was gone for about an hour and when she came back, she saw the police and assumed they were there to break up the party. She looked for - and she could not ?nd her sister. She assumed that her sister took an Uber home. Other Female Interactions On June, 25, 2015, Detective Kim received information about two females who had an encounter with the Defendant the weekend before the assault on - Doe. Detective Kim interviewed both _and Ms. -indicated that she came to the [imply (31577162) SENTENCING BRIEF -7 Stanford campus the weekend of January 9 through January 12, 2015, to visit Ms. who was a Stanford student. While on campus, they attended a party at the KA fraternity where Ms. was introduced to the Defendant. She described the Defendant as living in the same dormitory as Ms. _and that they had mutual friends, but were not close. She stated that during the party, she and Ms. -were dancing on a table and the Defendant followed them onto the table. She described the Defendant as being ?irtatious with her. He put his hat on her and she took it off. He then started to dance behind her and tried to turn her around to face him. She felt uncomfortable and tried to turn her body away so that he would not be directly ?behind? her. He became really ?touchy? and put his hands on her waist and stomach. He even put his hands on her upper thighs. She felt more exceedingly uncomfortable and got down off of the table. She said the Defendant ?oreeped? her out because of his persistence. (See Exhibit Two: portion of police report referencing this incident.) Prior Arrest and Pending,- 31576943 On November 15, 2014, at approximately 3:10 pm, the Defendant and a group of males were walking on earnpus drinking beers. Deputy Shaw ?rst saw them holding what appeared to be beer cans so he stopped his patrol car and exited it. As soon as he walked toward the group of males, they began to briskly walk away from his direction. Deputy Shaw walked faster to contact them in order to determine if they were of legal drinking age. The group immediately began running away from him. Deputy Shaw yelled, ?Stop! Police,? but the group looked back at him and continued running. Deputy Shaw broadcasted on his radio that he was in a foot pursuit. He chased them through the Knight Management complex and continued to yell ?Stop! Police!? several times. He lost sight of the subjects as they passed the south end of the complex. He then heard Deputy Devlugt yell, ?Stop get on the ground!? in a loud voice People v. 'l'uruer (B1577162) SENTENCING BRIEF -8 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. Deputy Shaw then called the Defendant on the phone and asked him to return to the scene. He returned wearing a bright orange tuxedo and Deputy Shaw smelled the odor of alcohol on him. The Defendant stated that he was headed to the Stanford football game with his swim teammates. He noticed the Sheriff?s vehicle pull up next to them. He had a black backpack on with Coors Light beers inside, as well as 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 of it belonged to him. The Defendant also was in possession of a fake driver?s license. (See Exhibit Three: police report 14-319-0270U.) mammal Shortly after the Defendant?s arrest in the early morning hours of January 18, 2015, 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 our: photos of screenshot.) 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? application or any photos related to that text. However, they learned 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 group. Engines-"Inner (131577162) SENTENCING BRIEF -9 More importantly, the search of the Defendant?s cell phone shed some light onto the Defendant?s behavior and character during the time period in question and the year prior to attending Stanford. There were many items of evidence indicating the Defendant was engaging in excessive drinking and using drugs: (1) Photo of the Defendant smoking from a pipe (See Exhibit Five: photo); (2) Close up photo of a bong and another photo of at Stanford swimmer and Defendant?s teammate with a bong in his hand. (Exhibit Six: two photos); (3) Video depicting the Defendant smoking ?'om a bong and drinking out of a bottle of liquor immediately after taking a ?bong hit,? which was captured on the Defendant?s phone on December 27, 2014. (See Exhibit Seven: video DVD.) Furthermore, there are many text messages that are indicative of drug use, both during the Defendant?s time at Stanford and during his time in Ohio when he was still in high school. On December 18, 2014, he sent a message to friend ?that stated, ?Do you think I could buy some wax so we could do some debs?? (See Exhibit Eight: text messages.) Dabs are a highly concentrated potent form of marijuana that is a THC (tetrahydrocannabinol) concentrated mass. They are most similar in appearance to either honey or butter, which is why it is referred to or known on the street as "honey oil" or "budder." Dabs are an increasing problem on campus and with teens as an alternative way to ingest marijuana.3 There is another group message about pulling money together to buy 30 tabs on January 13, 2015. (See Exhibit Nine: text messages.) 3 A disturbing aspect of this emerging threat is the ingestion of concentrates via electronic cigarettes (also known as e-eigarettes) or vaporizers. Many abusers of marijuana concentrates prefer the e-cigarette/vaporizer because it's smokeless, odorless and easy to hide or conceal. The user takes a small amount of marijuana cenoentrate, referred to as a "dab," then heats the substance using the e?cigarette/vaporizer producing vapors that ensures an instant "high" effect upon the user. Using an e-cigarette/vaporizer to ingest marijuana concentrates is commonly referred to as "dabbing" or "vaping." Loopin- v, Turner (31577162) SENTENCING BRIEF -10 There were many references to smoking, buying, and sharing ?weed? from as early as April 1, 2014, when the Defendant was in Ohio, throughout the Defendant?s short time at Stanford. (See Exhibit Ten: various text messages.) The text messages also referenced doing acid or trying to ?nd a ?hook up? to purchase acid both in high school and while at Stanford. On December 24, 2014,? sent a message to the Defendant stating, ?I?ve got a hankerin for a good acid trip when we get back.? The Defendant responded, ?I?m down for sure.? (See exhibit Eleven: text exchange.) On July 25, 2014, while still in Ohio, the Defendant sent a text message to saying, ?Oh dude I did acid with ?last week.? then bragged about ?eandy?ippin? the prior week, which he explained was taking LSD and MDMA together. The Defendant responded, gotta fucking try that. I heard it?s awesome.? (See Exhibit Twelve: text messages.) Finally, there is a text message exchange between the Defendant and his sister - ?'om June 3, 2014. She asked him, ?Did you rage last night?? He responded, ?Yeah kind of. It was hard to ?nd a place to drink. But when we ?nally did could only drink for like an hour and a half.? She responded, ?Haha enjoy it while it lasts, the ?nniest (sic) thing to look back on high school is having beer but no place to drink it. That will go away in college.? (See Exhibit Thirteen: text messages.) LEGAL ARGUMENT Penal Code section 1 170(a)(1) de?nes the purpose of sentencing someone to prison: ?The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose if best Served by terms proportionate to the seriousness of the offense with the (B 5 77162) SENTENCING BRIEF ?l 1 provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.? (Cal Pen Code 1170(a)(1). (emphasis added.)) Moreover, the general objectives of sentencing 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 ?om future offenses, (4) deterring others from criminal conduct by demonstrating its consequences, (5) preventing 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 months, 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. Therefore, 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 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. Probation lnoli ililc Pursuant to Penal Code Section 1203.065 Pursuant to Penal Code section the Defendant, because he was convicted of a violation of Penal Code 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 probation, probation shall not be granted to any person who is convicted of violating paragraph Ew?lurust (31577162) SENTENCING BRIEF -12 subdivision of section 261, subdivision of Section 286, subdivision of Section 288a, subdivision of Section 289, or Section 220 for assault with intent to commit a speci?ed sexual offense.? (Cal Pen Code (emphasis added.)) The Statute further clari?es 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 would be served. 1. 4.413(b) 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. Criteria in Facts Showing Unusual Case Related to Basis for Limitation on Probation. The following facts may indicate the existence of an unusual casein which probation may be granted if otherwise appropriate: a fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not ?rlly applicable to the case, including: The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the some probation limitation, and the defendant has no recent record of smi?jxinw (3677162)" SENTENCING BRIEF -13 committing similar crimes or crimes of violence; (Cal Rule of Ct. (emphasis added.)) Contrary to the Probation Department?s assessment classifying this crime as ?neutral? in the criteria for Rule this case is not substantially less serious than the circumstances typically present in other cases involving the same probation limitation. In fact, unlike most violations of Penal Code section 220, Assault with Attempt to Commit Rape, the Defendant here was successful in completing a sex act, and found guilty of violating both Penal Code Sections 289(d) and 289(e). After completing those sex acts, he then continued to assault 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 circumstances of this case are exceptionally more serious than those that typically occur. The fact that two independent bystanders had to intervene to prevent the Defendant from completing the rape, makes this case more egregious than other cases of assault with intent to commit rape. The Defendant?s attempt to ?ee, and his physical attempts to continue to get away from the Good Samaritans who caught and restrained him, further illustrate the threat and menace the Defendant posed to the victim and the community at large. The seriousness of this case is apparent in the facts that were presented at trial. It is abundantly clear that on the night in question, the Defendant was on the prowl and attempted to ?hook up? with women who were strangers to him, and who were clearly not interested in his sexual advances. Additionally, this assault occurred a week after he was similarly aggressive with another female, at a different fraternity party, at the same location. That female came forward and described the Defendant as making her feel uncomfortable. igum?r?qg (B1577162) SENTENCING BRIEF -14 Before committing the assault on - Doe, he unsuccessfully went after her sister - without any sort of invitation or interest from - In fact, - was actually talking to the Defendant?s friend, and she did not even have a conversation or interaction with the Defendant. Despite his lies that there was some sort of ??irtation? between himself and - both at trial and in his statement to probation; it was abundantly clear ?-om - testimony that she was completely caught off guard by his multiple attempts to kiss her that night.- She even had to get away ?'om him after he grabbed her waist, and she alerted her friend? to his behavior. She and ?later picked out the Defendant in a line- up, and described him as the ?aggressive? guy at the party, well before any publicity of this case arose. There has been an attempt by the Defendant, and others in support of him, to minimize his conduct in this case, as conduct that is typical at parties on college campuses. However, the fact that ?some people? are ?promiscuous? at college parties does not absolve the Defendant of his conduct and the manner that he violated both - Doe and her sister- Even though he was twice rejected by- he felt it was acceptable to pursue her sister, - Doe, later that night when she was alone and inebriated. He purposefully took her to an isolated area, away from all of the party goers, to an area that was dimly lit, and assaulted her on the ground behind a dumpster. He deliberately took advantage of the fact that she was so intoxicated that she could not form a sentence, let alone keep her eyes open or stand. This behavior is not typical assaultive behavior that you ?nd on campus, but it is more akin to a predator who is searching for prey. The prey in this case was a young woman who drank too much and was unable to protect herself. (B1577162) SENTENCING BRIEF -15 After physically removing her underwear and digitally penetrating her for some time, causing lacerations to her genital area, he continued to assault her and attempted to rape her until he was interrupted and stopped by the other students. Once confronted, he did not make any attempt to help her up, or to help her get her clothes on, or to make sure she was physically ?ne. Rather he ran away and left her there half-naked and completely unconscious and incoherent. But for the intervention of the two Good Samaritans, the Defendant would have completed the penile penetration of - Doe. Ultimately, the fact that the Defendant preyed upon an intoxicated stranger on a college campus should not be viewed as a less serious crime, than if he were to assault a stranger in Downtown Palo Alto. The recommendation by Probation does not take into account the global rami?cations the Defendant?s conduct has had on not only - Doe and her family, but also the greater community and students on Stanford?s campus. This case did not just attract public headlines because a star athlete, yet again, was accused of committing a sexual assault. This case touched on the nerve of the community because of the audacious and callous manner that the Defendant assaulted a completely unconscious female in public. This case appealed to the pulse of the community because the Defendant ran and tried to get away, and unlike many other cases, he was only apprehended by two brave students who chased him down and ensured he would answer to the authorities for what they observed. They reported what they saw and stopped it because it so clearly shocked their conscience, as it would shock the conscience of any ordinary law abiding citizen. Even though the Probation Department does not see this as a more serious case, Doe and her family do, and equally important the students on Stanford?s campus do not take this case The Founders of the Stanford Association of Students for Sexual Assault Peuplc v. 111mg; (B1577162) SENTENCING BRIEF -16 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 Given the magnitude of the case, which was solely caused by the Defendant?s actions, this Court should not ?nd that this case is a less serious crime warranting a ?nding of unusual circumstances; it is in fact more serious than other similar cases demanding a considerable punishment that is commensurate to the global effects of the Defendant?s actions. b. Rule Facts Limiting the Defendant?s Culpability: There Was no ?Great Provocation, Coercion, or Duress.? v. 'I'umcr (81577162) SENTENCING BRIEF ?17 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 ofgrcat 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 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 Court 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 unsuccess?rlly 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. _and Mr. - 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. ?3 and Mr. -5 observations were corroborated by the fact that - Doe was unconscious from the moment they saw her to minutes later when the ?rst responders arrived, until well over three hours later. insular-Junta (B 1 577162) SENTENCING BRIEF -18 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 ?nding 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 c. Defendant is youthful or aged, and has no significant record of prior criminal offenses. The Defendant clearly is youthful and committed this crime while in his ?rst 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 of the people who commit these types of sexual assaults are typically in college and by de?nition ?youthful.? Therefore, in order to achieve the sentencing goal listed in 1170(a) as deterring others from committing the crime, the Court should not give a bene?t 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 of the law, l?f??Et?g (131577162) SENTENCING BRIEF ?l 9 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 bene?t of a light sentence. Furthermore, while the Defendant did not have a signi?cant 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. Circumstances in Anurnvarion War-ranting a l'_ri_sou 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 fear to effectuate the sexual assault. In this case, - Doe was extremely intoxicated, more than three times the legal limit, and she also was unconscious during the time the Defendant was on top of her sexually assaulting her. While this is technically an element of the crime, the fact that the victim was so severely intoxicated and unconscious for several hours after the ?ling: (B1577162) SENTENCING BRIEF -20 assault was stopped, should be taken into consideration and treated as an aggravating factor warranting a prison sentence. - Doe?s level of intoxication was so grossly disproportionate to those cases that are typical for Penal Code 289(6) PC 289(d) violations, that this Court should evaluate this case as more egregious that justi?es a stiffer punishment. b. Rule 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 of?cers. When he was ultimately apprehended he also was in possession of a fake identi?cation card. That case is pending in docket B1576943. 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 148(a)(1), 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 has been drinking. Moreover, the fact that the Defendant had this pending case during the time of the current offense shows the Defendant?s blatant disregard for problems associated with his drinking and decisions made while under the in?uence. 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. Pannier- Tunau: (31577162) SENTENCING BRIEF -2 1 Other Factors to Consider 3. Defendant has not taken responsibility for his actions or expressed true remorse for his conduct. He lied in the probation report and while testifying. The Defendant testi?ed at trial and claimed that he was engaged in consensual mutual behavior with - Doe. He claimed that she ?orgasmed? after a minute of digitally penetrating her, and that he checked with her to see if she liked it. He also claimed that he only stopped ?hooking up? with her to throw up and he told her that he was going to throw up, despite never throwing up. He made other various claims about gaining permission from - Doe prior to engaging in sexual conduct with her body, which he had not previously reported to law enforcement. He claimed the only reason he ran was because Mr.- had grabbed him and became violent toward him, despite the fact that he previously told Detective Kim he did not run during this incident. He claims that when he left - she was ?ne and alert. After the Defendant testi?ed at trial, the jurors heard his prior recorded statement with Detective Kim in its entirety. The jurors also heard from Mr. who again af?rmed he only touched the Defendant after catching up to him and tripping him. If the jurors found the Defendant credible, they would not have convicted him as charged. They did not believe his story, because his story was outrageous and was not supported by the plethora of evidence against him. They did not believe him, because his story was a lie. After the Defendant was convicted, he was given the opportunity to give a statement to the Probation Department. He gave the same story to the probation of?cer, that he testi?ed to during trial; the same story that was not believed by the jurors. Astonishingly, he still maintains that this was a consensual encounter. He still insists that he only ran after Mr. - aggressively grabbed him, notwithstanding the fact that Mr. Mr. -both mile v. 'l'urnelj (31577162) SENTENCING BRIEF -22 testi?ed more than once, that the Defendant ran away well before anyone made physical contact with him. He still maintains that - Doe was a willing and capable participant, 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 re?ect the disingenuousness of the Defendant?s ?expression? of remorse, 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 recommendation that the Defendant should get a ?slap on the wrist.? When the report was ultimately completed, a copy was forwarded to her, as is mandated by Marsy ?s Law, and she became upset that her words were used in a way to assume she did not want the Defendant to be punished for his actions. She (B1577162) SENTENCING BRIEF -23 further was shocked and outraged that the Defendant appears to be in complete denial about violating her. His words, reiterating the lies he told, re-victimized her and made her feel as though the Defendant truly does not appreciate the rami?cations of his actions and what he did to her. In making its recommendation for a moderate county jail sentence, the Probation Report ironically states that, ?Perhaps, just as importantly, but sometimes overlooked, are the victim?s wishes as to the potential outcome.? When - Doe spoke to the Probation Department, she had no idea that they were going to make a four to six month recommendation. That recommendation does not re?ect her feelings on the outcome of this case, nor does it encapsulate the true impact the Defendant?s actions have had on her and her family. (See Exhibit Sixteen: letters from Doe, - Additionally, the Defendant attempts to persuade the Court to allow him to remain on probation so that he can teach others from his actions. In his letter he states, know I can impact and change people?s attitudes towards the culture surrounded by binge drinking and sexual promiscuity that protrudes through what people think are at the core ofbeing a college student.? He later states, ?My poor decision making and excessive drinking hurt someone that night and I wish I could just talk it all back.? How can someone help others, when they never acknowledge sexually assaulting a victim? How can someone help others when they blame drinking, peer pressure, and college culture on their actions, which were predatory and repulsive? Finally, the Defendant in his statement to probation lied about ever using illicit drugs. He appears to make it seem as though his first time drinking was when he ?rst went to Stanford University at a swim team party. He states, ?Coming from a small town in Ohio, I had never (B1577162) SENTENCING BRIEF -24 really experienced celebrating or partying that involved alcohol.?4 He further claims, he was an ?inexperienced drinker and party goer.? 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. IV. SENTENCING RECOMMENDATION 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 recommend 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. 4 Quote taken from Defendant?s letter attached to Probation Report. 5 In lieu of the term provided in Section ll'iO. l, a full, separate, and consecutive term may be imposed for each violation of an offense speci?ed in subdivision if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense speci?ed in subdivision If the term is imposed consecutively pursuant to this subdivision. it shall be served consecutively to any other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1 170.1. Any other term imposed Subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison. 667.6(0) 'l'urngg (B1577162) SENTENCING BRIEF ?25 This sentence is more re?ective of the seriousness of the case, the procedural posture of the case, conviction post-trial and not an early plea, and it is more uniform with similar sexual assault cases in our County that result in convictions after trial. The Probation recommendation of four to six months appears to be based on a one? sided consideration of solely the Defendant?s interests. It reeks of the stigma that campus sexual assaults often receive by a small portion of the community. That stigma needs to be changed, so that defendants who perpetrate crimes on college students should not be treated specially, just because their victims were also drinking. The Probation recommendation treats this case as though defendants in campus sexual assault cases should receive a discount for 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 .sexual assault cases receive a similar recommendation of four to six months as a bene?t for an early plea. The Probation recommendation of four to six months in this case falls so short of the 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 crime. By sentencing the Defendant to a substantial prison term, this Court will send a message to him, - Doe, and the greater community that sexually violating a woman is never acceptable, especially when she is intoxicated. Ronni-?v. (31577162) SENTENCING BRIEF -26 years "aim 220: Assault with Intent to Commit Rape (midterm concurrent to of an Intoxicated Person Count 2) Countm??Mef??Penetration of an Intoxicated (midterm) Person Count3 PE 289(d) ?3 6 - 75 Penetration of an midterm concurrent and Unconscious Person PC 654 to Count 2) I. i in Total Term 6311;11:5? V. CONCLUSION In sentencing the Defendant the Court must he mind?? 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 ?'om committing similar acts. Many of the objectives ofsentencing will not be served unless the Defendant is sentenced to a signi?cant prison term beyond the mandatory minimum required by law, and de?nitely beyond that recommended by probation. This Court should sentence the Defendant to a midterm of six years in order to protect society, to punish the Defendant for his multiple sex crimes, to encourage him to lead a law abiding life in the future and to deter him and others from committing new and similar crimes. 133,211+ch ?ung (B1577162) SENTENCING BRIEF ?27 Dated: May 27, 2016 Reapect?illy submitted, JEFFREY F. ROSEN DISTRICT ATTORNEY ALALEH KIANERCI Deputy District Attorney mile v. TIM (81577162) SENTENCING BRIEF -28 Chose-cam ef??ey F. Rose? ttl'?tmtil are an (M. sol PROOF OF SERVICE People v. BROCK ALLEN TURNER ss. DocketNo.BlS77162 STATE OF CALIFORNIA COUNTY OF SANTA CLARA 1 am employed in the County of Santa Clara, State of California. lam over the age of eighteen years, and not a party to the above-entitled action. My business address is: Of?ce of the District Attorney, 270 Grant Avenue, Fourth Floor, Palo Alto, CA 94306 On May 27, 2016, I served the following documents upon the interested patties in this action by the method(s) indicated below: People's Sentencing Memorandum BY FIRST CLASS MAIL: by placing a true copy thereof, enclosed in a sealed envelope, for postage and deposit with the U.S. Postal Service on the same date it is submitted for mailing, and addressed as follows: BY PERSONAL DELIVERY: by causing a true copy thereof to be hand-carried to the recipient at the address indicated: BY EMAIL TRANS MISSION: by e?mailing a true copy thereof to the recipient at the e-mail address indicated: Michael at BY COUNTY PONY MAIL: by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: State of California that the foregoing is I declare under penalty of perjury under the laws of th 27, 2016, at Palo Alto, Califomia. true and correct and that this declaration was executed on May Eucy?ediuo?