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THE PEOPLE v. EUGENE MAYNARD REMUND

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EUGENE MAYNARD REMUND, DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Jr., Judge. Affirmed. (Super. Ct. No. SCE281618)

The opinion of the court was delivered by: Huffman, J.

P. v. Remund CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted Eugene M. Remund of two counts of arson of an inhabited structure (Pen. Code,*fn1 § 451, subd. (b)), and one count of making a criminal threat (§ 422). At sentencing, the court found Remund's conviction for arson made him ineligible for probation (§ 1203, subd. (e)(9)). The court sentenced Remund to prison for a total term of 13 years. Remund did not object at sentencing. Remund appeals, contending the court erred by (1) determining he was ineligible for probation under section 1203, subdivision (e)(9); (2) denying his request for probation; (3) imposing the middle term for his arson conviction; and (4) imposing the upper term for the enhancement to that conviction. We affirm.

STATEMENT OF FACTS

Remund married Gale in 1988. Their relationship eventually deteriorated, and Remund left the couple's home in 2006 after Gale obtained a restraining order against him. Gale filed for divorce in February of 2007.

After a year of attorney fees and still no judgment in the matter, Remund became very dissatisfied with the family law system. He decided to express his frustration by behaving criminally, and as early as May of 2008, the 76-year-old Remund began to plan an elaborate suicide. In audiotape recordings, Remund announced his plans to set fire to Gale's and her daughter Deborah's garages. He repeatedly stated he did not want to injure Gale or Deborah, instead characterizing his crime as one intended to spark debate about the family law system. Remund also said he planned to kill himself after setting the garages on fire.

At about 11:00 p.m. on June 22, 2008, Remund drove his van to Gale's house. He brought gasoline containers, a bolt gun, and signs detailing his frustration with the legal system. When he arrived, Remund hung one of the signs in Gale's front yard. He then sprayed gasoline on the garage door and lit it, setting the garage on fire.

Gale, who was asleep in bed, awoke when she heard noises outside her home. A neighbor helped her out of the house, and as she evacuated, other neighbors put out the fire. The fire did not spread to the house, in part because a small breezeway separated the garage from the house. At trial, a fire investigator testified the fire would have spread to the house if not for the neighbors' efforts.

Meanwhile, Remund, still equipped with the bolt gun, drove to Deborah's house nearby. When he arrived, he posted another sign in the front yard. He also cut a water hose so that it could not be used to douse the fire. Remund then drove his van into Deborah's attached garage, emptied almost two gallons of gasoline in and around it, and set it on fire.

Upstairs and asleep in bed, Deborah and her partner Katherine awoke when they heard the telephone ring. One of Gale's neighbors had called to tell them of the fire at Gale's house. They decided to go help Gale, but as they hastened to dress, Katherine saw their garage on fire. They ran downstairs and tried to leave through the front door, but Remund stood nearby holding the bolt gun. Katherine remembered Remund saying, "If you come out the gate, I will shoot you." Deborah and Katherine eventually left through a window and found Remund on the ground with a nail sticking out of his head. He had shot himself with the bolt gun. While Remund lay immobilized, neighbors and others worked to contain the fire before it spread to the house. Remund was then arrested.

DISCUSSION

I

DENIAL OF PROBATION

Remund contends the court erred in concluding he was ineligible for probation. Specifically, Remund asserts the court should have found that the "unusual" circumstances of his case overcame his presumptive ineligibility and justified probation. Remund further contends the court abused its discretion in denying probation.

At the outset, we address whether Remund forfeited the right to appeal the court's findings by not objecting at sentencing. "[C]complaints 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." (People v. Scott (1994) 9 Cal.4th 331, 356.) Remund forfeited this issue because he failed to object to the reasons the court announced in finding him ineligible for probation. Even assuming Remund did not forfeit this claim, his contentions have no merit.

A sentencing court has broad discretion in determining whether to grant probation. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.) We review the court's determination that a defendant is ineligible for probation for abuse of discretion. (Ibid.) Under this standard, we reverse only if the court acted arbitrarily or capriciously, or "exceed[ed] the bounds of reason." (Ibid.)

A defendant convicted of arson of an inhabited structure is presumptively ineligible for probation. (§ 1203, subd. (e)(9).) This statutory limitation on probation may be overcome only in "unusual cases where the interests of justice would best be served if the person is granted probation." (§ 1203, subd. (e).) In determining whether "unusual" circumstances overcome a defendant's presumptive ineligibility for probation, a court may consider whether (1) the defendant's particular offense is "substantially less serious" than other offenses of the same kind; (2) the defendant committed the crime under "provocation, coercion, or duress not amounting to a defense"; (3) the defendant has a prior criminal record; (4) the defendant committed the crime because of a mental condition not amounting to a defense; and (5) the defendant is youthful or aged. (Cal. Rules of Court,*fn2 rule 4.413(c)(1), (2).) A court also may consider factors not listed in the sentencing rules, provided those factors are reasonable and stated on the record. (Rule 4.408(a).)

Remund initially contends the court failed to properly consider his age and lack of criminal history as factors that overcame his presumptive ineligibility for probation. At sentencing, the court noted Remund's "lack of any criminal record is significant, as is his age." The court then considered countervailing factors, especially the victims' fears of Remund, and found those factors to be more persuasive. Although Remund's age and lack of criminal record cut in his favor, a court " 'may but is not required to find the case unusual if the relevant criteri[a]' " of rule 4.413's subdivisions are met. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) In fact, the court was free to minimize or entirely disregard Remund's age and good standing, as long as it did not do so irrationally or arbitrarily. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) Minimizing the significance of Remund's age and good standing was neither irrational nor arbitrary because the court had legitimate concerns for the victims' safety.

Remund next contends the court disregarded two relevant mitigating factors--his "emotional duress and provocation" and the "less serious" nature of his offenses. This contention has no merit. At sentencing, the court stated it had "reviewed and considered" defendant's statement in support of probation, defendant's statement in mitigation, and defendant's supplemental information in support of probation. According to those documents, Remund's divorce and "extreme stress" drove him to criminal behavior. Remund also claimed his crimes were "less serious" than other, similar arsons because they were "calculated to burn a limited amount of the structure" and did not cause any physical injury. In denying probation, the court expressly stated it had "considered all of these factors."

Further, the record shows Remund did not act under the kind of "emotional provocation or duress" that rule 4.413(c)(2)(A) contemplates. "Provocation" involves circumstances in which a person is suddenly "provoked to act in the heat of passion." (People v. Stuart, supra, 156 Cal.App.4th at p. 184.) Remund did not act suddenly; he planned the arsons for several weeks, with ample time to reflect on the seriousness of his conduct. In addition, "duress" involves threats that induce a person to engage in unlawful conduct. (Id. at p. 185.) Although the family law system may have frustrated Remund, it did not threaten him in any meaningful sense.

As to the second mitigating factor, the record does not suggest Remund's offense was "substantially less serious" than circumstances typically present in other, similar cases. The court was not required to accept Remund's characterization of his crimes. It construed the arsons far more seriously than Remund did, and for good reason. When Remund set fire to the garages, he knew three women were asleep a few yards away. Remund also freely admitted he cut a water hose that otherwise could have been used to douse the fire. His offenses were no less "serious" than other arsons simply because the fires he started did not extend to the houses. In fact, a fire investigator testified that the fire at Gale's house would have readily spread to her living quarters had it not been for the neighbors' combative efforts. Accordingly, the court properly declined to weigh this mitigating factor in Remund's favor.

Lastly, Remund contends the court should have confined its analysis to the criteria identified in rule 4.413 when determining whether "unusual" circumstances overcame his presumptive ineligibility for probation. According to Remund, the court improperly based its decision on the victims' fears of Remund. A victim's fear of a defendant who is granted probation is not identified as a mitigating or aggravating factor in rule 4.413. But a court may consider factors not expressly listed in the sentencing rules when determining whether "unusual" circumstances overcome a defendant's presumptive ineligibility for probation. (Rule 4.408.) This is particularly true when a court considers a factor that serves public safety, a basic public policy of probation. (See rule 4.410(a)(1) [listing "protecting society" as a general objective of sentencing].) By stating the additional criteria of the victims' fears on the record, the court satisfied rule 4.408.

The court acted within its discretion when it found Remund failed to establish "unusual" circumstances that would overcome his presumptive ineligibility for probation. Because the court properly found Remund was ineligible for probation, we need not address whether the court abused its discretion in denying probation.

II

IMPOSITION OF THE MIDDLE TERM

Remund contends the court abused its discretion by imposing the middle term for his arson conviction. He argues the court considered improper factors and did not consider relevant factors, essentially mirroring the contentions he made with respect to the probation issue.

A defendant forfeits his right to appeal his sentence where he fails to object at the time of sentencing. (People v. Scott, supra, 9 Cal.4th at p. 353.) Thus, Remund's failure to object to the court's stated reasons in imposing the middle term is fatal to his contention. Assuming Remund did not forfeit the issue, we conclude the court did not abuse its discretion in imposing the middle term.

A sentencing court enjoys the same broad discretion in selecting terms of a defendant's sentence as it does in determining whether to grant probation. (People v. Carmony (2004) 33 Cal.4th 367, 377.) Under this abuse of discretion standard, we reverse only if the court's decision is "so irrational and arbitrary that no reasonable person could agree with it." (Ibid.)

Remund asserts the court considered improper factors in selecting the middle term for the arson conviction by basing its decision on the "victims' fears." As we have already discussed, however, a court may consider factors not expressly listed in the sentencing rules, provided those reasons are stated on the record and are reasonably related to the decision being made. (See rule 4.408.) Thus, the court properly considered this factor.

Remund next argues the court failed to consider relevant factors in selecting the middle term for the arson conviction, including his age, lack of criminal history, emotional stress, and the "nature" of his offenses. As we have already noted, the court "reviewed and considered" defendant's statement in support of probation, defendant's statement in mitigation, defendant's supplemental information in support of probation, and "every word" of letters sent by Remund's supporters. These items addressed Remund's age, criminal history, emotional distress, and the nature of his crimes. The court is deemed to have considered all relevant criteria in making a discretionary sentencing decision. (Rule 4.409.) Accordingly, the court did not abuse its discretion in selecting the middle term for the arson conviction.

III

IMPOSITION OF THE UPPER TERM

Remund contends the court erred by imposing the upper term for the enhancement to his arson conviction. We conclude Remund forfeited the right to appeal the validity of his upper term enhancement sentence by failing to object at sentencing. We decline to discuss the merits.

We ordinarily will not consider a claim of error on appeal if an objection could have been made, but was not, in the lower court. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) A defendant forfeits his right to appeal his sentence where he fails to object at the time of sentencing. (People v. Scott, supra, 9 Cal.4th at p. 353.) "Th[is] forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error." (People v. Kennedy (2005) 36 Cal.4th 595, 612.)

At sentencing, Remund had the opportunity to object to the court's reliance on judicially-found factors under section 1170.1, subdivision (d), but failed to do so. In selecting the upper term, the court stated it was "bound by [pre-Cunningham] sentencing rules" because of a "legislative oversight"--viz., the legislature had not yet amended section 1170.1, subdivision (d) to correspond with the requirements of Cunningham v. California (2007) 549 U.S. 270. In so stating its reasons for imposing the upper term, the court gave Remund plenty of opportunity to object. Remund did not, and therefore failed to preserve the right to raise the issue on appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: McCONNELL, P. J. IRION, J.


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