IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
October 21, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KENNETH LYLE SAID,
DEFENDANT AND APPELLANT.
Mendocino County Super. Ct. No. SCUKCRCR 0781665
The opinion of the court was delivered by: Jones, P.J.
P. v. Said CA1/5
Received for posting 12/3/10
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Kenneth Lyle Said pleaded guilty to incest (Pen. Code, § 285)*fn1 and the court sentenced him to the midterm of two years. On appeal, appellant claims the court: (1) failed to give him an opportunity to object to the sentence; (2) did not properly balance the aggravating and mitigating circumstances; and (3) erroneously characterized the offense as "serious" when it selected the midterm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts regarding the offense are taken from the probation report. K. was raised by her aunt and uncle in Wyoming and lived there until 2004. Some time after 2004, she moved to Willits to meet her siblings, including her biological brother, appellant. K. suffers from numerous "physical ailments," including "cerebral palsy and . . . reoccurring strokes, which leave[ ] her unable to care for herself."
On December 11, 2007, K., then 58, called the Willits Police Department to report that appellant "had raped her." She explained that appellant had, for several months, "insisted on having sexual intercourse with her, which she has participated in." K. told the police that because of her physical limitations, she "never felt as if she would be able to physically stop the sexual relationship between her and her brother, as he is physically stronger [than] her." K. told appellant "she did not want to engage in sexual intercourse with him, but he insisted . . . [and] verbally threatened her," telling her that "if she wanted to be part of the family, she need[ed] to comply with the family ways, which meant having sexual intercourse with him." When interviewed by the police, appellant denied having a sexual relationship with K.
The People charged appellant with rape (§ 261, subd. (a)(2)), inflicting pain and suffering on a dependent adult (§ 368, subd. (b)(1)), and sexual battery by restraint (§ 243.4, subd. (a)). In January 2008, the People amended the information to include one count of incest (§ 285). Appellant pleaded guilty to incest. The court dismissed the remaining charges and ordered appellant to appear at a sentencing hearing on April 2, 2008. Appellant did not appear and the court issued a no-bail bench warrant.
Over a year later, appellant was arrested in Southern California for "a DUI." In July 2009, he appeared in custody and the court set a sentencing hearing for August 2009. At the August 2009 sentencing hearing, the court ordered the Department of Corrections and Rehabilitation to perform a diagnostic evaluation pursuant to section 1203.03.*fn2
In the section 1203.03 report, the Department of Corrections and Rehabilitation opined incarceration was appropriate because "[t]he present case is of a serious nature" and appellant's "actions have placed the community at risk[.]" The report noted that appellant "took advantage of his disabled biological sister and forced her to have sex with him. It is not clear whether or not Mr. Said will re-offend, [but] it is clear he took advantage of a vulnerable victim for his own sexual gratification. He was supposed to report to the probation department; instead he left the county without permission. He was supposed to abide by the law; instead he broke the law and was arrested in Southern California for driving under the influence and false information to a peace officer. . . . Mr. Said is considered a risk to the community and others due to his continued substance abuse and escalating criminal behavior." According to the evaluation, appellant claimed the "situation with his sister was consensual" and that he "realized what he did was wrong and he regrets his actions."
The psychiatric evaluation accompanying the section 1203.03 report noted that appellant presented a "moderate risk of future violence" and a "low-moderate risk of future sexual offending." According to the psychiatric evaluation, appellant was "distraught over his legal and medical circumstances," but had "minimal empathy and remorse for the victim. . . . Mr. Said denied responsibility for the actions leading to his arrest. Instead, he reported the victim initiated the sexual relationship and falsified information to authorities when Mr. Said ended the sexual relationship. This explanation seems implausible given both the victim and witness reports." Finally, the psychiatric evaluation noted that appellant suffered from heart disease, a depressive disorder, and alcohol dependence.
The August 2009 report chronicled appellant's criminal history from 1975 to 1991, specifically his convictions for embezzlement (§ 504), possession of controlled substance ingestion paraphernalia (Health & Saf. Code, § 11364), and infliction of corporal injury on a former spouse or cohabitant (§ 273.5, subd. (a)). The report also noted that in June 2009, appellant was convicted of driving under the influence (Veh. Code, § 23152), falsely representing oneself to a police officer (§ 148.9), and driving when privilege revoked or suspended (Veh. Code, § 14601.1). The supplemental November 2009 probation report recommended placing appellant on probation for 60 months.
At the sentencing hearing in January 2010, the court indicated it had reviewed the section 1203.03 diagnostic evaluation and accompanying psychiatric evaluation, the probation reports, and various letters written by appellant. The court then asked the parties to present their positions. Defense counsel urged the court to place appellant on probation to enable him to travel to Southern California where his wife and her family lived because: (1) the present offense was appellant's first felony offense; (2) appellant had a very serious heart condition; (3) appellant is responsible for caring for his wife's elderly and infirm parents; (4) appellant did not pose any danger to K.; and (5) he would benefit from counseling and other resources in Southern California. In response, the probation officer explained that although his report indicated appellant was "qualified for probation," he did not believe appellant would comply with the probation terms and conditions.
After taking a break so it could "reflect on [the case] a little more," the court indicated that if it placed appellant on probation, "there would be a sentence imposed, execution suspended . . . [and] it would be probably for either the mid or aggravated term." The court then invited defense counsel to present an argument for the "low term." Defense counsel did so, contending the low term was appropriate because there was no evidence supporting the allegations that appellant used force or violence. Counsel also urged the court to impose the low term because appellant's misdemeanor convictions were remote and because he: (1) pleaded guilty early in the case; (2) had a serious medical condition; (3) had no prior felony convictions; (4) did not pose a risk to the community; and (5) had, with one exception, "completed grants of probation."
The court opined that probation would not "be appropriate in this case" and gave a lengthy explanation about the factors and circumstances it had considered. The court stated the case was "serious," and that appellant had been "evasive and untruthful" when interviewed by the police and by the psychiatrist. The court also explained that appellant failed to appear for judgment and sentencing in April 2008 and that the psychiatrist had indicated appellant was a "moderate risk of future violence and a low-moderate risk for future sexual offending." The court also noted that it had considered various factors in aggravation, including appellant's criminal history and K.'s vulnerability. Finally, the court stated it had considered several mitigating factors, including appellant's "minimal" criminal record and his early plea. The court concluded, "[b]ut considering the seriousness of the offense and the totality of factors against the factors in mitigation, . . . the mid-term is appropriate. I do impose two years in state prison." At the conclusion of the hearing, the court asked, "Is there anything further in this matter at this time?" and counsel for both parties responded, "No."
Appellant contends the court erred by sentencing him to the midterm of two years because it: (1) failed to give him an opportunity to object to sentence "prior to its imposition;" (2) improperly weighed the aggravating and mitigating factors; and (3) erroneously characterized the offense as "serious" when deciding to impose the midterm.
"The trial court has broad discretion with regard to sentencing, and its decision will be affirmed on appeal, so long as it is not arbitrary or irrational and is supported by any reasonable inferences from the record. [Citation.] The party attacking the sentence must show the sentencing decision was irrational or arbitrary and if it fails to do so, "'"the trial court is presumed to have acted to achieve legitimate sentencing objectives. . . ."'" [Citation.]" (People v. King (2010) 183 Cal.App.4th 1281, 1323; People v. Sandoval (2007) 41 Cal.4th 825, 847.)
Appellant's first contention is the court did not give him an opportunity to object to the "proposed sentence and reasons for its imposition[.]" He seems to rely on People v. Scott (1994) 9 Cal.4th 331, where the California Supreme Court articulated the waiver rule applicable to sentencing proceedings. The Scott court held that a criminal defendant may not raise claims on appeal "involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence in the trial court. (Id. at p. 353.) The court also explained, however, that "there must be a meaningful opportunity to object. . . . This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Id. at p. 356.)
Contrary to appellant's suggestion, Scott does not require a trial court to provide "an indicated sentence[.]" (People v. Downey (2000) 82 Cal.App.4th 899, 916; People v. Zuniga (1996) 46 Cal.App.4th 81, 84 ["'meaningful opportunity to object'" does not "require a tentative ruling in advance of the actual sentence"]; People v. Gonzalez (2003) 31 Cal.4th 745, 751.) "[T]he Scott rule applies when the trial court 'clearly apprise[s]' the parties 'of the sentence the court intends to impose and the reasons that support any discretionary choices' [citation], and gives the parties a chance to seek 'clarification or change' [citation] by objecting to errors in the sentence. The parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing. The court need not expressly describe its proposed sentence as 'tentative' so long as it demonstrates a willingness to consider such objections. If the court, after listening to the parties' objections, concludes that its proposed sentence is legally sound, it may simply state that it is imposing the sentence it has just described, without reiterating the particulars of that sentence. By contrast, if the trial court finds that one of the parties has raised a meritorious objection to the proposed sentence, it should alter its sentence accordingly." (Gonzalez, supra, at p. 752, original italics.) Therefore, under Scott, "the parties need only be advised of the trial court's intended sentence 'during the course of the sentencing hearing itself. . . .'" (Gonzalez, supra, 31 Cal.4th at p. 752, quoting Scott, supra, 9 Cal.4th at p. 356.)
Here, the court gave appellant's counsel a "meaningful opportunity to object" to the sentence. (Scott, supra, 9 Cal.4th at p. 356.) At the beginning of the sentencing hearing, the court informed the parties of its tentative views regarding sentencing: the court told the parties that if it placed appellant on probation, "there would be a sentence imposed, execution suspended . . . [and] it would be probably for either the mid or aggravated term." It then invited counsel for appellant to argue for the "low term," and defense counsel did so. The court then explained why it was denying probation, and listed the factors it had considered to reach that decision. Then it discussed the aggravating and mitigating factors and imposed the midterm.
Immediately after articulating appellant's sentence, the court asked counsel whether there was "anything further in this matter at this time?" Counsel for both parties responded, "No." Appellant's counsel did not object to the sentence on any grounds. Therefore, the record demonstrates counsel for appellant had a meaningful opportunity to object "during the course of the sentencing hearing itself[.]" (Gonzalez, supra, 31 Cal.4th at p. 751.) As a result, appellant has forfeited his claims of sentencing error. (Scott, supra, 9 Cal.4th at p. 353; Gonzalez, supra, 31 Cal.4th at p. 755.)
We address the merits of appellant's remaining claims to obviate an ineffective assistance of counsel claim. Appellant's next contention is the court improperly weighed the aggravating and mitigating factors when it imposed the midterm. We disagree. "'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.]" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) We affirm "unless there is a clear showing the sentence choice was arbitrary or irrational." (Id. at p. 1582.) Appellant has made no such showing here. The court explained that it had reviewed the section 1203.03 report and psychiatric evaluation, the probation reports, and letters written by appellant. In addition, the court specifically considered appellant's criminal history, the vulnerability of the victim, appellant's "evasive and untruthful" behavior, his failure to appear for the April 2008 sentencing hearing, and his early plea. The court did not -- as appellant argues -- fail to consider appellant's "poor health." The court expressly stated it had considered the probation reports and the psychiatric evaluation, both of which indicated appellant had health problems. We cannot conclude the court's decision was arbitrary or irrational, particularly where the court has discretion to "minimize or even entirely disregard mitigating factors without stating its reasons." (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637, quoting People v. Salazar (1983) 144 Cal.App.3d 799, 813.)
Appellant's final claim is the court erroneously characterized the offense as "serious" when imposing the midterm. Specifically, appellant contends the court gave "'the seriousness of the offense' as a reason for rejecting imposition of the lower term" and that the "'seriousness of the offense'" was "too subjective for proper use as a sentencing factor." As noted above, the court discussed the reasons why it was imposing a prison sentence and noted the aggravating and mitigating factors it had considered. The court concluded, "considering the seriousness of the offense and the totality of factors against the factors in mitigation, . . . the mid-term is appropriate."
Appellant takes the court's comment out of context. The court did not impose the midterm because it concluded the offense was "serious." The court simply reiterated its conclusion -- based on various factors -- that the offense was sufficiently serious to justify a prison term. And the offense was serious: appellant had sexual intercourse with his physically and mentally disabled biological sister. Finally, appellant's claim fails for an additional reason: the court may consider the gravity of the crime when it selects the appropriate penalty. (Cal. Rules of Court, rule 4.421(a)(1) [court may consider "[f]actors relating to the crime" including that "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness"].)
The judgment is affirmed.
We concur: Needham, J. Bruiniers, J.