Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Hamilton, Judge, Super. Ct. No. F06905817
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and A. Kay Lauterbach, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Kham Panyasy appeals from a judgment of two years in prison. She contends that the trial court abused its discretion by failing to appoint an expert in Laotian culture to assist the trial court with sentencing. In a supplemental letter brief, Panyasy also contends that one of her convictions should be reversed because it is a lesser included offense of another conviction. For the following reasons, we affirm.
STATEMENT OF THE CASE
Appellant Panyasy was charged with a six count felony complaint, which alleged: (1) child abuse; (2) driving with blood alcohol level of greater than 0.08 percent and causing injury; (3) driving under the influence of alcohol and a drug and causing injury; (4) leaving the scene of an accident; (5) vehicular manslaughter without gross negligence; and (6) driving with a suspended license.
Appellant originally pleaded not guilty to all charges. Later, she withdrew her plea and entered a plea of nolo contendere to counts two and five in exchange for dismissal of the remaining counts.
The trial court suspended the criminal proceedings and ordered a 90-day diagnostic evaluation under Penal Code section 1203.03. If the evaluation was favorable, appellant would receive probation. If not, she would receive a state prison term not to exceed two years. The trial court agreed when the prosecutor said the “majority rules with the three reports. If it’s two to one, whichever favor that is, that becomes the court’s indicated sentence .…”
Three persons evaluated appellant. One evaluator stated “[a]fter a careful and thorough analysis I have concluded that [appellant] does present an unreasonable burden and threat to the safety of the community should she be granted probation and fail to meet the terms and conditions established.” Another evaluator stated that “[i]t is my opinion [that appellant] is not a candidate worthy of an opportunity to be placed on probation. The fact that she is non-English speaking, does not negate her responsibility to follow the laws of the land, in addition to all laws imparted to her via issuance of her driver’s license. [¶] It is believed [appellant] has a severe problem that she has never faced and has never worked on. She expressed more fear of being away from her family than she expressed sorrow for the loss of a life.”
The last evaluator had the following observations: “Ms. Panyasy feels very upset because she is away from her family. Most of her thoughts and feelings concerning her crime are focused on remorse concerning her separation from her family. After asking about her crime and what she would do differently, Ms. Panyasy said that she ‘would be with her family.’ When asked about what happened to the pedestrian (who she struck with her car and killed), Ms. Panyasy stated ‘the officer told me he died and I am very sorry.’ Appropriate signs of remorse for her crime are difficult to ascertain given the cultural divide that exists between us.”
During a pre-sentencing hearing where the victim’s family testified, the trial court observed her demeanor and made the following notation: “Ms. Panyasy showed no emotion at all during the statement of victim’s family. [¶] No tears. [¶] She deserves prison!”
At the sentencing hearing, appellant’s counsel asked for a continuance so that the trial court could appoint an expert in Laotian culture to assist in the sentencing. The trial court rejected this suggestion, stating that an expert would not assist him in sentencing “at all at this point given the history I have in this case.”
That history, according to the trial court, included the personal observations of the trial court: “I have carefully looked at Ms. Panyasy throughout the proceedings in terms of her – because I knew that I would be faced with making a decision as to whether she would go to prison or get a probation commitment. I’ve watched her carefully when the victim’s family made their comments earlier. I believe that was last month. And the only time I’ve ever seen Ms. Panyasy show much emotion was when it was concerning herself or her own children and the fact that she would be taken away from them for a period of time. She has no trouble showing emotion when it concerns herself, but she does not clearly show emotion or much remorse I guess would be the term when it comes to the victim.”
Subsequently, the trial court sentenced appellant to the mid-term of two years in state prison.
Appellant timely appealed.
On November 2, 2007, we granted the appellant’s application to file a supplemental letter brief received on October 31, 2007. In the supplemental letter brief, appellant contended that her conviction for driving with a .08 percent blood alcohol level and causing injury must be reversed because it is a lesser included offense within her conviction for vehicular manslaughter without gross negligence, citing People v. Binkerd (2007)155 Cal.App.4th 143 [66 Cal.Rptr.3d 675].
We granted the People an extension to respond to the supplemental letter brief. On February 1, 2008, the People filed a letter brief arguing that appellant had failed to perfect the issue on appeal because she did not obtain a certificate of probable cause. The People also contend that any error was harmless because appellant was not sentenced to any prison term on the lesser included offense. The People further contend that appellant had forfeited the issue by failing to object to the dual convictions and that the conviction should not be overturned because it would distort the plea agreement.
Because a plea was entered, the statement of facts is based upon the probation officer’s report.
Appellant was born in 1967 in Laos, and immigrated to the United States in 1990. She is a single mother with three children, ages 3, 14, and 19 at the time she was interviewed by the probation officer. In 2003, she began receiving government assistance because of a mental illness.
At about 11:00 p.m. on July 31, 2006, after consuming several beers, appellant drove her 19 year-old son to his girlfriend’s house. She took her younger son along. On the return trip, appellant, who was driving with her lights off, hit and killed a pedestrian. She did not stop or render aid to the injured person. She did not contact the police, call 911, or call an ambulance. Instead she drove home, but ran a stop sign along the way, which caused some patrolling police officers to follow her.
Upon arriving at her apartment, appellant hurried into her residence. The police, noting that appellant’s car had damage consistent with a pedestrian collision [e.g., blood and dent], repeatedly called to appellant until she came out. She admitted hitting a man, but said her 13-year old son had advised her to leave the scene, so she did. Appellant later claimed the victim had thrown a large object at her car, although there was no evidence of this.
The victim actually was a 43 year-old woman.
The younger son denied the account. He also stated that his mother had telephoned his older brother after hitting the victim.
Appellant failed the police-administered sobriety tests. Her speech was slurred, her eyes were red and glassy, and she smelled of an alcoholic beverage. Laboratory results showed appellant’s blood alcohol exceeded the legal limit. It was also discovered that she possessed a suspended driver’s license.
Appellant did express remorse to the probation officer and the trial court prior to the sentencing.
DISCUSSION
I.
Abuse of Discretion In Sentencing
Panyasy contends that the trial court abused its discretion by not appointing an expert in Laotian culture to assist the trial court in sentencing. We disagree.
The sentencing decisions of a trial court are reviewed for abuse of discretion. For example, when considering a claim that the trial court erred in denying probation, a reviewing court must determine whether the trial court’s decision is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) By statute, the trial court may consider remorse as a factor in deciding whether to grant probation. (Ca. Rules of Court, rule 4.414(b)(7); see also People v. Leung (1992) 5 Cal.App.4th 482, 507.)
Here, the record shows that the trial court did not abuse its discretion by failing to appoint an expert in Laotian culture to assist him in determining appellant’s level of remorse. Appellant was examined by three persons, two of whom addressed the issue of appellant’s remorse. One evaluator stated that appellant did show remorse, but not at the level that he thought was sufficient for the gravity of appellant’s crime. The other evaluator stated that appellant showed some remorse but he could not determine the level of remorse because of cultural differences. Nevertheless, he recommended probation despite not reaching a conclusion on appellant’s level of remorse. We can infer from this that in the opinion of the evaluator appellant did not show the appropriate level of remorse, but he was unsure whether the reasons that appellant did not show the appropriate level of remorse was because of cultural differences.
The trial court supplemented the observations of these evaluators with its own personal observations. The trial court found that appellant could show “much remorse” when it concerned herself or her family but not when it concerned the victim or the victim’s family. Thus, it is unclear how an expert in Laotian culture would have assisted the trial court any further in determining appellant’s level of remorse.
The cases cited by appellant do not assist her on this issue. In Iao v. Gonzales (7th Cir. 2005) 400 F.3d 530, the court cautioned trial judges to be sensitive to “the difficulty of basing a determination of credibility on the demeanor of a person from a culture remote from the American .…” (Id. at p. 534, italics omitted.) That case cited as an example the fact that “[b]ehaviors that in our culture are considered evidence of unreliability, such as refusing to look a person in the eyes when he is talking to you, are in Asian cultures a sign of respect.” (Ibid.) In this case, however, appellant could show signs of much remorse when it concerned herself or her family but not when it concerned the victim or the victim’s family.
Siripongs v. Calderon (9th Cir. 1994) 35 F.3d 1308 (Siripongs), is also not helpful. In dicta, the Siripongs Court noted that trial counsel erred in not presenting “evidence of Siripongs’ Thai culture, including Thai concepts of remorse and shame, [that] might well have bridged a cultural gap between the jury and the accused.” (Id. at p.1316.) Siripongs cited to Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 618, fn. 5, where the proffered expert testimony “would also suggest that petitioner’s apparent lack of emotion at trial did not necessarily indicate disinterest or coldness, but was consistent with cultural expectations of Chinese males.” Here, however, appellant showed much emotion some times, but no emotion, according to the trial court, at other times.
It is apparent the court was looking to determine whether appellant felt a level of emotional reaction to what she had done. It is the distinction between having only concern about how the event affected her life without being concerned about how the lives of others were affected. In our view, what the court concluded is that appellant failed to appreciate the magnitude of harm caused except to herself. This is not a case where general lack of reaction might be misperceived because of cultural distinctions.
The record thus indicates that the decision not to appoint an expert in Laotian culture was not arbitrary or capricious or outside the bounds of reason. Accordingly, there was no abuse of discretion.
II.
Lesser Included Offense
In a supplemental letter brief, Panyasy also contends that her conviction for “driving with a blood alcohol content of more than .08 percent and causing injury” must be reversed because it is a lesser included offense within her conviction for vehicular manslaughter without gross negligence. The People contend that appellant failed to perfect the issue on appeal because she did not obtain a certificate of probable cause.
Penal Code, section 1237.5 generally provides that a defendant may not appeal from a judgment of conviction following a guilty or no contest plea, unless she files with the trial court a written, sworn statement “showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings,” (§ 1237.5, subd. (a)), and the trial court executes and files “a certificate of probable cause for such appeal with the clerk of the court” (§ 1237.5, subd. (b)). In People v. Buttram (2003) 30 Cal.4th 773, 790, the California Supreme Court reaffirmed that a certificate of probable cause is required where “the appellate claim at issue constitutes, in substance, an attack on the validity of the plea.” The Supreme Court held that “absent contrary provisions in the plea agreement itself, a certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence.” (Ibid.)
Here, Panyasy is challenging her agreement to be convicted under count two for “driving with a blood alcohol content of more than .08 percent and causing injury.” Unlike her prior argument that the trial court erred in failing to appoint an expert in Laotian culture to assist with sentencing, a challenge to her conviction on count two is an attack on the validity of the plea. Panyasy agreed to be convicted on count two and on count five (vehicular manslaughter without gross negligence) in return for a lid on a prison term of two years and dismissal of counts of child abuse, leaving the scene of an accident, driving under the influence, and driving with a suspended license. Thus, even if Panyasy erroneously pled to a count which was included within another count, she gained an immediate benefit by the dismissal of other felony counts. Moreover, Panyasy also received the benefit of her plea agreement when she was sentenced to a two year prison term on count five and to no prison term on count two. Therefore, we dismiss the issue raised in Panyasy’s supplemental letter brief for failure to obtain a certificate of probable cause.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, J., Levy, J.