Opinion
A130491
11-03-2011
THE PEOPLE, Plaintiff and Respondent, v. TAE KWON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC071582)
Defendant Tae Kwon appeals the trial court's imposition of the upper term of three years in state prison following his guilty plea conviction for threatening to kill his ex-wife, in violation of Penal Code, section 422. We affirm the judgment.
Further statutory references are to the Penal Code unless otherwise noted.
FACTS AND PROCEDURAL BACKGROUND
In July 2010, the San Mateo County District Attorney (DA) filed a complaint accusing defendant in count 1 of making a felony criminal threat against Jane Doe, in violation of section 422. The complaint also alleged count 1 was a serious felony within the meaning of section 1192.7, subdivision (c)(38). The DA also accused defendant in count 2 of misdemeanor harassment of Jane Doe by means of an electronic device, in violation of section 653m, subdivision (a).
City of Millbrae Police Officer George Le was the sole witness at the subsequent preliminary hearing. Officer Le testified that on July 17, 2010, Jane Doe, defendant's ex-wife, called to report threats made by defendant. Jane Doe told Officer Le that after her divorce from defendant was finalized in April 2010, she and her children moved to Millbrae and she did not tell defendant their new address because she was afraid of him. Jane Doe also told Officer Le defendant called her about 20 times between 10:00 a.m. and 12:30 p.m. that day. Jane Doe took one of the calls, during which defendant accused her of living with another man, which she denied. Defendant was enraged and told Jane Doe he carried a gun and was going to kill her. Defendant also threatened to kill their son because he would not tell defendant where the family was living. Defendant told Jane Doe his life was already messed up and he was going to mess everyone else's lives up. Officer Le testified Jane Doe started crying while she was telling him about defendant's phone call.
After speaking with Jane Doe, Officer Le called defendant and asked him to come down to the police station. Defendant replied he was working and would come to the station tomorrow. After Officer Le spoke with defendant, Jane Doe appeared at the police station. Jane Doe told Officer Le that defendant called her again and she had recorded the call. In the call, defendant told Jane Doe that he'd received a call from the police, that he was not afraid to go to jail, that he knows she lives in Millbrae, and that when he's released from jail he's going to look for her and kill her.
At the conclusion of the preliminary hearing, the court sustained the charges in the complaint, including an additional count under section 422 based on defendant's threat against his son's life, finding that all counts were supported by probable cause. The DA filed an information to that effect on August 20, 2010, reflecting each of the charges upon which defendant was held to answer. At a subsequent change of plea hearing, defendant pleaded no contest to count 1 in the information (making a criminal threat in violation of section 422) and admitted the allegation that the offense is a serious felony under section 1192.7, subdivision (c). Before accepting defendant's plea, the court advised defendant that the maximum penalty for the section 422 offense was three years in state prison. Pursuant to the plea agreement, the matter was referred to probation with an indicated term of two-years in state prison.
Defendant also pleaded no contest to the charge in another case against him that in July 2009 he falsely impersonated his brother.
The probation report filed prior to sentencing states the following: Defendant owns three handguns and had sustained prior misdemeanor weapons convictions (carrying a loaded firearm in a public place and negligently discharging a firearm) after firing his gun in the air during a bar fight. The victim divorced defendant on account of his gambling and drinking problems. During the marriage, defendant was verbally abusive and also struck the victim on two occasions. The victim did not want defendant to know where she and their two children lived because she feared for her safety. Before defendant issued his threats via the telephone, he went looking for the victim at her place of work.
The report also notes that when defendant was interviewed in custody, he "took minimal responsibility for his criminal behavior. . . . [H]e expressed no remorse, blaming his behavior on communication problems with his ex-wife that cause him to 'lose his temper.' He was visibly still upset with ex-wife, raising his voice angrily as he justified his behavior based on the belief that she is 'trying to hide something.' He lacked any insight into his behavior and presented as being emotionally unstable and potentially dangerous." Additionally, the probation officer states that defendant "continues to harbor resentment and hostility" towards his ex-wife. "It is of concern[,]" the probation officer continued, "that the defendant may be capable of harming himself and his family as he admitted he has no support from any family members due to his criminal behavior, has attempted to commit suicide in the past, and indicated his threats to the victims that he has nothing to live for. Given his lack of remorse, motivation, and apparent emotional instability, the defendant is viewed as a dangerous individual who may be capable of violence. Thus a recommendation for a commitment to the Department of Corrections is certainly warranted."
At the sentencing hearing held on October 27, 2010, defense counsel requested that the court grant defendant's application for probation. Before imposing sentence, the trial court stated: "Mr. Kwon, there is absolutely nothing mitigating set forth in the probation recommendation as it relates to you. [¶] I am not impressed in the least with your . . . completion of a domestic violence and parenting education course while in custody. . . . [A] lot of people do things in custody . . . simply to lessen the consequences of their criminal behavior. [¶] . . . [¶] Your ex-wife and your son have made it perfectly clear; that they are deathly afraid of you; as they should be. [¶] The probation officer made it eminently clear that you are a dangerous and violent individual." The trial court denied defendant's request for probation. After finding that defendant was "not amenable for probation," the court stated, "[I]t's my intention to sentence you to the aggravated term of three years in state prison." The court gave several reasons for imposing an aggravated sentence: "One, . . . your absolute lack of remorse or willingness to take responsibility for your criminality. But, more, importantly, . . . is the wish of the victims in this case that you be incarcerated for as long as possible. That is what I intend to do, to keep them safe from you. . . . [¶] The reason for this aggravated term . . . is that your behavior while demonstrating no remorse, indicates a serious danger to society.
You threatened great bodily harm to the people closest to you. That behavior discloses a high degree of callousness. [¶] Pursuant to 4.423 of the California Rules of Court, there are zero factors in mitigation. [¶] . . . You are sentenced to the aggravated term of three years state prison." Defendant filed a timely notice of appeal on November 30, 2010.
DISCUSSION
Defendant asserts the trial court abused its discretion by imposing the upper term, contending that the factors in aggravation relied upon by the trial court were improper, not supported by the evidence, or of minimal weight. Initially, we agree with the Attorney General that defendant's failure to object at the time of sentencing resulted in forfeiture of this issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356 ["[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"]; see also People v. Jones (2009) 178 Cal.App.4th 853, 859 [appellant's claim that the trial court abused its discretion in imposing an aggravated term forfeited where defendant failed to object at sentencing].) In any event, we reject defendant's contention of sentencing error on the merits.
Citing People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6, defendant asserts we have inherent discretionary authority to review the trial court's sentencing decision despite his failure to object.
Accordingly, we need not address defendant's ineffective assistance of counsel claim based on trial counsel's failure to object to the sentence.
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, subd. (b).) A court's sentencing discretion must be exercised in a manner that "is not arbitrary and capricious, . . . is consistent with the letter and spirit of the law, and . . . is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
In determining the appropriate sentence term, the trial court considers factors in aggravation or mitigation, pursuant to California Rules of Court, rule 4.420. In its consideration of aggravating or mitigating factors, the trial court can assign such value to each factor as is appropriate under the facts of the case. (People v. Lamb (1988) 206 Cal.App.3d 397, 401 [" 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in qualitative as well as quantitative terms.' [Citation.].) The presence of one aggravating factor is sufficient to support an upper term sentence (see People v. Black (2007) 41 Cal.4th 799, 813; People v. Osband (1996) 13 Cal.4th 622, 728), and a trial court "need not explain its reasons for rejecting mitigating factors. (Citation.)" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Lamb, supra, 206 Cal.App.3d at p. 401 "trial court need not state reasons for minimizing or disregarding circumstances in mitigation"].) The factors in aggravation or in mitigation are to be established by a preponderance of the evidence. (People v. Lewis (1991) 229 Cal.App.3d 259, 264.)
In People v. Sandoval, supra, our Supreme Court noted that "no comprehensive list of aggravating circumstances exists. [Rather], . . . a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. (See, e.g., Cal. Rules of Court, rule 4.420(c) [fact underlying an enhancement may not be used to impose the upper term unless the court strikes the enhancement]; id., rule 4.420(d) [fact that is an element of the crime may not be used to impose the upper term].) The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be "reasonably related to the decision being made." (Cal. Rules of Court, rule 4.408(a).)" (People v. Sandoval, supra, 41 Cal.4th at p. 848.) "The Advisory Committee Comment to California Rules of Court, rule 4.408 notes: " 'The variety of circumstances presented in felony cases is so great that no listing of criteria could claim to be all-inclusive. [Citation.] [¶] The relative significance of various criteria will vary from case to case. This, like the question of applicability of various criteria, will be decided by the sentencing judge.' " (Id. at p. 848, fn. 10.)
On appeal, we review a sentence under the deferential abuse of discretion standard (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-977), and will affirm the trial court's sentence "unless there is a clear showing the sentence choice was arbitrary or irrational.' [Citations.]" (People v. Avalos, supra, 47 Cal.App.4th at p. 1582.) Defendant bears the burden of affirmatively establishing an abuse of discretion. (Alvarez, supra, 14 Cal.4th at pp. 977-978.) Absent that showing, we presume the trial court acted to achieve legitimate sentencing objectives and uphold its decision to impose a particular sentence. (Ibid.)
In this case, the trial court identified several aggravating factors justifying its imposition of the upper term, including the safety of the victim, defendant's danger to society, and defendant's lack of remorse. These factors are "reasonably related" to the trial court's decision to impose the upper term (Cal. Rules of Court, rule 4.408(a)), and are amply supported by the record.
In this regard, the record shows that the victim (defendant's ex-wife) sought the protection of the police after defendant threatened to kill her. However, that did not discourage defendant. Rather, he phoned the victim again after police had asked him to report to the station, told her he was not afraid of going to jail, and that after he was released from jail he would track her down and kill her. The fact that defendant reiterated his threat to kill his ex-wife, even after she sought the protection of the police and police had contacted defendant about the matter, amply supports the trial court's concern for the safety of the victim as a factor in aggravation in this case. (See People v. Black, supra, 41 Cal.4th at p. 817 [noting that an aggravating circumstance is a fact that makes the offense "distinctively worse than the ordinary"].)
Defendant mischaracterizes the trial court's finding on this point, asserting that the court relied on the "victim['s] . . . expressed desire for maximum punishment." Defendant further asserts this is not a proper aggravating factor, relying on People v. Levitt (1984) 156 Cal.App.3d 500 (Levitt). In Levitt, the appellate court held that the bereavement suffered by the victim's family was not a proper aggravating factor in a homicide case: The court stated, "[A] defendant's level of culpability depends not on fortuitous circumstances such as the composition of his victim's family, but on circumstances over which he has control. A defendant may choose, or decline, to premeditate, to act callously, to attack a vulnerable victim, . . . [all of which] . . . are based upon such choices which the defendant makes of his own will. In contrast, the fact that a victim's family is irredeemably bereaved can be attributable to no act of will of the defendant other than his commission of homicide in the first place." (Id. at pp. 516-517.) Here, the trial court's concern for the safety of the victim as a factor in aggravation does not offend the logic of Levitt—defendant chose not to back off after his wife contacted the police; rather, he chose to repeat his death threat more vehemently, declaring he was not afraid to go to jail and would track the victim down and kill her when he was released.
Furthermore, defendant told the victim that his life "was already messed up, and that he was going to mess up everyone else's lives." Also, defendant had already been looking for his ex-wife at her place of work. Additionally, the probation report noted defendant owned three handguns and had a criminal history of weapon-related offenses. These facts, together with the fact that defendant's unremitting death threats against his ex-wife were undeterred by police action, support the trial court's finding in aggravation that defendant presents a serious danger to society.
Defendant asserts that his conduct, "at most . . . presents some possible danger to his ex-wife and son" but does not support a finding that he is a danger to society. Not so. Whereas defendant's threats to kill were directed at his ex-wife and son, any attempt to act on those threats could occur at his ex-wife's place of work or any other public place, presenting a clear danger to society at large.
Finally, the record shows that even after defendant had pleaded guilty to the offense of conviction, he took minimal responsibility for his criminal behavior. Rather, as noted by the probation officer, defendant "expressed no remorse" and blamed the victim for his predicament, believing that that she is "trying to hide something" and that she causes him to lose his temper. Defendant, according to the probation officer, "lacked any insight into his behavior" and "continues to harbor resentment and hostility" towards his ex-wife. These facts fully support the trial court's reliance on defendant's lack of remorse as an aggravating factor justifying the imposition of the upper term.
Indeed, defendant concedes that lack of remorse was a proper aggravating factor but asserts that, standing alone, it does not justify the upper term. However, as discussed above, in addition to lack of remorse the trial court also properly relied upon concern for the safety of the victim and defendant's danger to society as factors for imposing the upper term. Accordingly, we need not discuss whether, on this record, threat of great bodily harm or defendant's callous conduct were also appropriate factors in aggravation. (See People v. Black, supra, 41 Cal.4th at p. 813 [one aggravating factor is sufficient to support an upper term sentence].)
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In sum, we conclude the trial court's imposition of the upper term was based upon a rational and " 'individualized consideration of the offense, the offender, and the public interest' " (People v. Sandoval, supra, 41 Cal.4th at p. 847), and, as such, does not constitute an abuse of discretion, (ibid).
DISPOSITION
The judgment is affirmed.
Jenkins, J. We concur: Pollak, Acting P. J. Siggins, J.