THE PEOPLE v. EDGAR GODOY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

introduction

A jury convicted defendant Edgar Godoy of rape of an unconscious or asleep person (Pen.Code, § 261, subd. (a)(4)(A).) ¹  The trial court imposed an eight-year sentence.

In this appeal, defendant contends that remand is necessary because the trial court applied an incorrect standard in determining his eligibility for probation.   This claim has been forfeited because it was not raised below.   Nonetheless, we consider and reject the contention on the merits.

Defendant further contends that he was deprived of constitutionally adequate representation of counsel during sentencing when trial counsel erroneously conceded defendant's ineligibility for probation, focused on factors relevant only to probation rather than mitigation of punishment, failed to object to improper aggravating sentencing factors raised by the prosecutor in an untimely sentencing memorandum, and failed to object to irrelevant matters in the probation report.   Because we also find no merit in these contentions, we affirm the judgment.

factual background

A. Prosecution Evidence

Jessica, who was 18 years old at the time of the rape at issue here, lived with her mother, Shirley, and her brother.   Defendant was Shirley's boyfriend and had lived with the family for six years.   Jessica said she had a good relationship with defendant, “sort of a father/daughter relationship.”   She did not call him “dad,” but described him as being “there for [her].”   Before the charged rape, defendant had not touched Jessica inappropriately, made sexual advances, or made sexual comments around her.

On the morning of May 22, 2008, Jessica was asleep in her bedroom, and was wearing a nightgown and underwear.   Shirley woke Jessica briefly around 7:30 a.m. and reminded her to go with defendant to get some pants hemmed that Shirley planned to wear to a funeral that night.   Jessica went back to sleep.   Jessica described herself as a heavy sleeper who could “sleep through anything.”

Around 10:30 a.m., Jessica awoke in pain, and realized defendant was on top of her with his penis inside her vagina.   Her underwear was down around her ankles.   She pushed him off of her and asked what he was doing, but he did not respond.   Jessica knew that her mother was at work, and her brother was at school.

Jessica wanted to get away from defendant, so she went and took a shower.   As she was washing her vaginal area she felt “something gooey,” and noticed that the gooey substance also had some blood in it.

When she finished her shower, Jessica went to her room to get ready to leave to run errands with defendant.   She was shocked and frightened by what defendant had done to her, but she felt she still had to perform the errands her mother had told her to do, and defendant had to go with her.   While she was in her room, defendant knocked on her bedroom door and asked if he could talk to her.   He said he knew what he did was wrong, and asked for her forgiveness.   Jessica did not know how to respond.   Defendant and Jessica proceeded to run the errands together.

That evening, Jessica did not tell her mother or anyone else what had happened.   Jessica did not want to tell Shirley because her mother had a funeral to attend.   She knew she had to tell her mother what defendant had done, but she was worried about doing so.   Defendant had left Shirley before and “she [got] really, really, really sad.”   Jessica was worried her mother might hurt herself if that happened again.   She tried to act like nothing unusual had happened.

Six days later, Jessica told defendant she could not continue to pretend nothing had happened.   He said he did not expect her to, but said that if she told her mother, he would leave and never come back.   He reminded her that her mother needed him.   She agreed, but said that what he had done was wrong.   He responded that because she was 18 years old and would be 19 in a couple of months, he could not get in trouble.   Later that day, she told her friends and her brother what defendant had done to her.   Her brother insisted that she tell their mother by that weekend, or he would do so.

That weekend, Jessica told her mother what defendant had done.   Shirley confronted defendant, and he admitted to inappropriately touching Jessica, but denied putting his penis inside her.   He repeatedly apologized to Shirley, and asked her to let him stay, promising to make it up to her and Jessica.   After Jessica told Shirley that she had been asleep and awoke to find defendant on top of her and penetrating her, Shirley recalled that defendant had done the same thing to her once, although because they were dating she had not thought much of it at the time.

West Covina Police Detective Lori Hayden interviewed defendant on June 2, 2008, and recorded their conversation.   The recording was played for the jury, and they also received a transcript of the conversation.   Hayden described defendant's demeanor during the interview as being very emotional and crying, to the point he was sometimes unable to speak, and he was very sorrowful and meek.   He admitted that he lay down on the bed beside Jessica, and had touched her stomach inappropriately, but denied touching her vagina with any part of his body.   Hayden stated that Jessica's bed sheets were not tested for biological material, and a sexual assault examination was not performed on Jessica.

B. Defense Evidence

Defendant testified that on May 22, 2008, he went into Jessica's room to wake her up because she was supposed to be in school.   He lay on the bed next to her with her back toward him, put his arm around her underneath the covers, and was surprised to feel the skin of her stomach.   He pulled his hand away, and then kneeled on the end of the bed and tapped her on the shoulder, telling her to wake up.   She rolled onto her back, and as she did the covers lifted and she opened her legs, and he was able to see that she was not wearing underwear.   She asked, “Edgar, what are you doing?”   He put his left hand on top of her knee and closed her legs, then fell forward onto the bed, where he remained for about five minutes, crying and apologizing because he had not expected to see Jessica naked, and he was devastated that he had invaded her privacy.   He went and showered and got dressed, then went back into her room;  she was wrapped in a towel.   He hugged her, saying he was very sorry and that he loved her and her mother, and hoped that she could forgive him.   Jessica got dressed and they ran errands together.   They went to the seamstress, ate lunch, and went to the library, and Jessica did not seem uncomfortable or upset.

Defendant noticed over the ensuing days that Jessica seemed a bit withdrawn, but he did not talk to her about it because he thought she “wanted her space.”   Just after Memorial Day, on May 28, 2008, Jessica told him she felt uncomfortable about what had happened, and he encouraged her to talk to her mother.   On May 30, 2008, Shirley confronted defendant.   He was shocked when she accused him of having intercourse with Jessica, but he admitted that he had touched Jessica's stomach.   Shirley was very angry and told him to leave.   He was arrested two days later while he was at work.

Freddy Castillo, a friend and co-worker of defendant's, testified that he went to Shirley's house for dinner on Memorial Day, and spent about three hours there.   He saw Jessica laughing and observed that she appeared to be happy;  he did not notice that anything seemed wrong.

discussion

I. Denial of Probation

A. Factual Background

The trial court ordered the probation department to prepare a probation and sentencing report, and a “STATIC 99 risk assessment report.”   The initial probation report stated that defendant was not eligible for probation, and that factors in aggravation and mitigation indicated defendant should be sentenced to the middle base term in state prison.   The listed circumstances in aggravation included that “the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness”;  and that “the defendant took advantage of a position of public trust or confidence to commit the offense.”   The factor listed in mitigation was that defendant does not have a prior criminal record.   Defendant's “STATIC 99” report stated that it was for use in “assist[ing] in the prediction of sexual and violent recidivism for sexual offenders,” and was based on the existence of any prior convictions and certain behavioral characteristics.   Defendant received a score of 1, which was “in the low range of risk.”

The People's sentencing memorandum erroneously stated that defendant was ineligible for probation pursuant to section 1203, subdivision (e)(2) and (4) (use or attempted use of a deadly weapon in perpetration of the crime, and previous conviction of two felonies).   There was no allegation of use of a deadly weapon, and defendant had no previous criminal record.²

At the sentencing hearing, the prosecutor pointed out the error in the sentencing memorandum, stating “It appears that defendant is eligible for probation, but probation is totally inappropriate in this case, and the defendant is not suitable for probation.   Under 1203.067, the court would have to - in order for the probation to be granted, the court would have to do several things which would be inappropriate in this case.   I just wanted to clarify the sentencing memo and the error on that.”

Defense counsel responded, “We had a chance to talk, and we reached an understanding.   It is my understanding that under some extraordinary circumstances, and that's essentially where it's at, that the court could go there.   Those circumstances are not such that I'm able to articulate in this matter.   And absent having been presented with that, it is accurate that in this case probation is not available, although it's theoretically possible with this code section.”

The prosecutor argued that the mitigating factor that defendant had no prior convictions was outweighed by the factors in aggravation, i.e., the crime involved great violence, the victim was particularly vulnerable because she trusted him and he used the relationship to take advantage of that position of trust.   She argued this crime was more egregious than, for example, a crime that would occur on a college campus because this occurred in a family setting.   The prosecutor asserted the defendant should be sentenced to the high term.

Defense counsel replied that there was no evidence the victim had been devastated by the event and, in fact, an hour after the crime occurred she ran errands and had lunch with defendant.   He pointed to the fact defendant was older and a first-time offender, and argued for imposition of the low term, a three-year state prison sentence. (§ 264.)

The court denied probation and selected the high term of eight years in state prison.   In so doing, the court stated:  “I'm struck by the level of callousness that was displayed in this particular case.   Obviously didn't involve great violence, as itemized by the People, threatened with bodily harm.   Doesn't really display too much viciousness or cruelty, although there's some mental cruelty involved.   And the People's sentencing memorandum basically discusses the sentencing factors and quotes from the [California] Rules of Court relating to sentencing factors.   But the one that struck me was callousness.   There's a sense of entitlement, a sense of ownership, I'm living with the mother, I can participate with the daughter.   Sense of vulnerability, on the victim's behalf, she was in her own home, in her own bedroom, in her own bed.   Defendant was in a position of trust and confidence.   The victim testified that she identified the defendant as her stepfather, had for years.   But according to the mother, he knew or should have known that daughter was a heavy sleeper.   Let's think about the effect on the victim.   She wakes due to pain.   She realizes that there's something in her vagina.   She opens her eyes, and she's looking at the defendant's face within inches away.   Gross abuse of trust and confidence․  All right.   And for all of those reasons, there's no way we could shoehorn this case into a finding under 1203.067 that it was an extremely unusual situation that would require probation.   And under the facts of our case, probation is grossly disproportionate to the activities that took place.”

B. Applicable Law

“Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. (§§ 1191.1, 1202.7.)   A defendant's eligibility for probation is determined, by deductive reasoning, from statutes identifying the types of offenses or offenders who are ineligible to receive it.   It is absolutely unavailable as a sentencing choice in many serious felony cases and presumptively unavailable in others unless ‘unusual’ circumstances are present and the ‘interests of justice’ are best served thereby.  (See, e.g., §§ 1203, subd. (e), 1203.044-1203.046, 1203.048, 1203.06-1203.075, 1203.08-1203.09;  Cal. Rules of Court, rule 413;  cf. § 1203a [misdemeanors].)”  (People v. Welch (1993) 5 Cal.4th 228, 233.)

Rapists who commit their crimes upon unconscious victims are eligible for probation;  no statute exists that prohibits or otherwise restricts its availability for a person convicted of this crime.  (See People v. Acevedo (1985) 166 Cal.App.3d 196, 204;  section 1203.065.)   Section 1203.067 provides:  “(a) Notwithstanding any other law, before probation may be granted to any person convicted of a felony specified in Section 261 ․, who is eligible for probation,[³ ] the court shall do all of the following:  [¶] (1) Order the defendant evaluated pursuant to Section 1203.03, or similar evaluation by the county probation department.[⁴ ]  [¶] (2) Conduct a hearing at the time of sentencing to determine if probation of the defendant would pose a threat to the victim․  [¶] (3) Order any psychiatrist or psychologist appointed pursuant to Section 288.1 to include a consideration of the threat to the victim and the defendant's potential for positive response to treatment in making his or her report to the court.”   Thus, the court here had discretion to grant probation to defendant if it found him suitable, after complying with the requirements of section1203.067, subdivision (a).

In contrast to cases such as the present one in which the court had discretion to grant probation, in some cases probation is possible, but is nonetheless “disfavored, rather than barred, for specified categories of persons.   As to them, probation must not be granted ‘[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation.’  [ (Pen.Code, § 1203, subd. (e).) ]”  (3 Witkin & Epstein, Cal.Criminal Law (3d ed.   2000) Punishment, § 517, p. 703.) ⁵

As applicable in this case, the criteria affecting the decision to grant or deny probation are set forth in Rule 4.414, and include both facts relating to the crime, and facts relating to the defendant.   Facts relating to the crime that were arguably relevant here include:  “(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;  [¶] ․ [¶] (3) The vulnerability of the victim;  [¶] (4) Whether the defendant inflicted physical or emotional injury;  [¶] ․ [¶] and (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.”  (Rule 4.414, subd. (a).)  Potentially relevant facts relating to the defendant here include:  “(3) Willingness to comply with the terms of probation;  [¶] (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;  [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents;  [¶] (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction;  [¶] (7) Whether the defendant is remorseful;  and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others.”  (Rule 4.414, subd. (b).)

C. Discussion

Defendant contends on appeal that the trial court applied an incorrect standard in determining his eligibility for probation because it believed that, in order to grant probation, the court had to find “that it was an extremely unusual situation that would require probation.”   Defendant argues that remand is necessary to permit the court to reconsider the matter in light of the correct standard.   We disagree.

For one thing, the claim has not been preserved for appellate review because defense counsel never raised it in the trial court.   Defendant's sentence of eight years in prison was legally authorized, and thus counsel's failure to object below constitutes a forfeiture of the claim.  (People v. Scott (1994) 9 Cal.4th 331, 353.)  “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.”  (Id. at p. 356.)

In any event, when a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.  (People v. Price (1991) 1 Cal.4th 324, 492, citing People v. Avalos (1984) 37 Cal.3d 216, 233.)   Here, the trial court relied on proper reasons for its sentence choice, and although it described defendant's case as not being “an extremely unusual situation that would require probation,” it is not reasonably probable that the trial court would have imposed a more favorable sentence even if the court had recognized the full extent of its discretion to grant probation.

The trial court considered the relevant criteria listed in Rule 4.414, including the level of callousness displayed by defendant, and the mental cruelty involved given Jessica's vulnerability (being asleep in her own room) and the fact that defendant took advantage of his position of trust and confidence in order to rape a young woman who considered him her stepfather.   The trial court made clear its view that “probation [was] grossly disproportionate to the activities that took place,” and that “there's no way we could shoehorn this case into a finding ․ that it was an extremely unusual situation that would require probation.”  (Italics added.)   It is unmistakable from the court's comments and the fact it imposed the high term that it would not have viewed probation as an appropriate disposition under even a more lenient standard.   Had defense counsel clarified the court's misunderstanding about the circumstances under which defendant could be placed on probation and requested probation under the controlling statute, the record makes clear that the court would have denied the request.

II. Ineffective Assistance of Counsel

Defendant argues that he was deprived of constitutionally adequate representation of counsel during sentencing when trial counsel erroneously conceded defendant's ineligibility for probation, focused on factors relevant only to probation rather than mitigation of punishment, failed to object to improper aggravating sentencing factors raised by the prosecutor in an untimely sentencing memorandum, and failed to object to irrelevant matters in the probation report.   We are not persuaded.

Defendant contends that even if we conclude, as we have, that he forfeited his claims of error, those claims are still cognizable on appeal based upon his counsel's failure to object and clarify the applicable standard for granting probation, and the other failures detailed above, under the rubric of ineffective assistance of counsel.  “Defendant may not, however, transform a forfeited claim into a cognizable claim merely by asserting ineffective assistance of counsel.  (People v. Riel (2000) 22 Cal.4th 1153, 1202-1203 (Riel ).)   Such a claim is different from a claim of the underlying forfeited error.  (Ibid.)” (People v. Jennings (2010) 50 Cal.4th 616, 654, fn. 15.)   A defendant “cannot fail to object at trial, where the issue could have been litigated and any error avoided, and also claim error on appeal.   If counsel were truly ineffective, defendant can assert that ineffectiveness and obtain appropriate relief on that basis.   But he cannot automatically obtain merit review of a noncognizable issue by talismanically asserting ineffective assistance of counsel.”  (Riel, supra, 22 Cal.4th at p. 1202.)

In any event, we conclude that defendant has not demonstrated ineffective assistance of counsel.  “ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was “deficient” because his [or her] “representation fell below an objective standard of reasonableness ․ under prevailing professional norms.”  [Citations.]  Second, he must also show prejudice flowing from counsel's performance or lack thereof.  [Citations.]  Prejudice is shown when there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”   [Citations.]’  [Citation.]”  (In re Avena (1996) 12 Cal.4th 694, 721;  see Strickland v. Washington (1984) 466 U.S. 668, 687-694;  People v. Cunningham (2001) 25 Cal.4th 926, 1003.)   However, the assessment of prejudice is not “solely one of outcome determination.   Instead, the pertinent inquiry is ‘whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’  [Citation.]”  (In re Avena, supra, 12 Cal.4th at p. 721.)  “[T]he petitioner must establish ‘prejudice as a “demonstrable reality,” not simply speculation as to the effect of the errors or omissions of counsel.’ ”  (In re Clark (1993) 5 Cal.4th 750, 766.)   Where a defendant fails to show prejudice, a reviewing court may reject a claim of ineffective assistance of counsel without reaching the issue of deficient performance.  (Strickland v. Washington, supra, 466 U.S. at p. 697.)

A. Concession of Ineligibility for Probation

While defense counsel stated that “it is accurate that in this case probation is not available,” he was aware that probation was “theoretically possible with this code section.”   Counsel's recognition that the circumstances of defendant's crime made probation unavailable was arguably a tactical choice to avoid taking a position that was unviable and instead urging the court to impose the low term.   In any case, as we discussed above, based upon the court's comments, there is no reasonable probability that, but for counsel's failure to request probation for defendant, the result of the proceeding would have been different.   Even if defense counsel had clarified the court's misunderstanding about the circumstances under which defendant could be placed on probation and argued that probation was appropriate in this case, the record makes clear that the court would have denied the request.   Defendant has failed to show he was prejudiced by any purported failure on his counsel's part.

B. Failure to Address Factors in Mitigation

Defendant next argues that trial counsel provided ineffective assistance because counsel focused on factors relevant only to probation (Rule 4.413) rather than focusing on factors in mitigation of punishment (Rule 4.423).   However, defendant does not specify any factors enumerated in Rule 4.423 that were applicable here, and we find there were none.   He contends counsel should have pointed out additional factors supportive of a grant of probation-lack of weapon use, lack of professionalism, willingness to comply with terms of probation, and the effect of imprisonment on defendant-but the court was already aware of these circumstances.   Defendant has not shown that any prejudice resulted from counsel's failure to reiterate them.

C. Failure to Argue Against Aggravating Factors Raised in Untimely

Sentencing Memorandum

Defendant also contends that defense counsel provided ineffective assistance because he did not object to the late filing by the prosecutor of the sentencing memorandum, and failed to defend against allegations that his client deserved the aggravated term and to argue that the factors in aggravation were inapplicable.   We find no merit in these contentions.   The court retained the discretion to consider the sentencing memorandum, and defendant has not shown that an objection by his counsel would have persuaded the court to disregard it.   Furthermore, we find unpersuasive defendant's arguments that the evidence did not support the court's finding of factors in aggravation.

Defendant is incorrect in arguing that a finding of “callousness” is only appropriate when the crime involves viciousness.   Here the court found defendant displayed a sense of entitlement and ownership in raping his girlfriend's daughter while she slept.   We agree and conclude that defendant was in fact “insensitive,” “indifferent,” and “unsympathetic” to the effect his actions would have on the young woman who considered him her stepfather.   (People v. Esquibel (2008) 166 Cal.App.4th 539, 558.)   In addition, Jessica was particularly vulnerable in that she was alone in the house with defendant, and sleeping in her room, having no reason to be on her guard.   Most importantly, she was known to be a heavy sleeper, making her especially vulnerable to the crime defendant committed.   Finally, the evidence supported the court's finding that defendant took advantage of his position of trust in committing the rape.   Jessica and her mother trusted defendant to be alone in their home with Jessica and to keep her safe, and he violated that trust by instead raping her while she slept.   In short, trial counsel was not ineffective because the aggravating factors argued by the prosecutor were entirely supported by the evidence.

D. Irrelevant Matters in Probation Report

Finally, defendant argues that trial counsel was ineffective because he did not object to irrelevant matters stated in the probation report.   We need not discuss these contentions because, as defendant himself acknowledges, the trial court stated it was not considering the information.

disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All subsequent undesignated statutory references are to the Penal Code..  FN1. All subsequent undesignated statutory references are to the Penal Code.

FN2. The report also indicated, however, that “should the court grant probation in this matter, it is recommended that the court order the defendant to cooperate with the probation officer in a plan for intensive supervision.”   Under the recommendation section, the report recommended that probation be denied..  FN2. The report also indicated, however, that “should the court grant probation in this matter, it is recommended that the court order the defendant to cooperate with the probation officer in a plan for intensive supervision.”   Under the recommendation section, the report recommended that probation be denied.

FN3. Section 1203.065, subdivision (a), prohibits the grant of probation for persons convicted of violating paragraph (2) or (6) of section 261, subdivision (a) (rape by means of force or violence, and rape accomplished by threat of retaliation, respectively).   Section 1203.065, subdivision (b)(1), provides that probation is “restricted” in cases of rape convictions pursuant to section 261, subdivision (a)(7) (rape by means of threat to use the authority of a public official to incarcerate, arrest, or deport another.)   Defendant's conviction was pursuant to paragraph (4) of section 261, subdivision (a)..  FN3. Section 1203.065, subdivision (a), prohibits the grant of probation for persons convicted of violating paragraph (2) or (6) of section 261, subdivision (a) (rape by means of force or violence, and rape accomplished by threat of retaliation, respectively).   Section 1203.065, subdivision (b)(1), provides that probation is “restricted” in cases of rape convictions pursuant to section 261, subdivision (a)(7) (rape by means of threat to use the authority of a public official to incarcerate, arrest, or deport another.)   Defendant's conviction was pursuant to paragraph (4) of section 261, subdivision (a).

FN4. Section 1203.03, subdivision (h) pertains to performance of an evaluation of the defendant by a Department of Corrections diagnostic facility to determine if the defendant is “suffering from a remediable condition relevant to his criminal conduct,” in order to ascertain if a just disposition of the case requires provision of diagnosis and treatment services to the defendant..  FN4. Section 1203.03, subdivision (h) pertains to performance of an evaluation of the defendant by a Department of Corrections diagnostic facility to determine if the defendant is “suffering from a remediable condition relevant to his criminal conduct,” in order to ascertain if a just disposition of the case requires provision of diagnosis and treatment services to the defendant.

FN5. California Rules of Court, rule 4.413 addresses the criteria the court must apply if the “defendant comes under a statutory provision prohibiting probation ‘except in unusual cases where the interests of justice would best be served.’ ”  (Rule 4.413, subd. (b) [All further references to Rules are to the California Rules of Court].)   An “unusual case” includes one in which “[t]he fact or circumstance giving rise to the limitation on probation is ․ substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence.”  (Rule 4.413, subd. (c)(1)(A).).  FN5. California Rules of Court, rule 4.413 addresses the criteria the court must apply if the “defendant comes under a statutory provision prohibiting probation ‘except in unusual cases where the interests of justice would best be served.’ ”  (Rule 4.413, subd. (b) [All further references to Rules are to the California Rules of Court].)   An “unusual case” includes one in which “[t]he fact or circumstance giving rise to the limitation on probation is ․ substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence.”  (Rule 4.413, subd. (c)(1)(A).)

EPSTEIN, P. J. MANELLA, J.