Opinion
B226448 Los Angeles County Super. Ct. No. GA078786
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. DE THANH DOAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County, Candace J. Beason, Judge. Affirmed.
Jennifer M. Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant De Thanh Doan appeals from the judgment entered following his convictions by jury on five misdemeanor counts of disobeying a domestic relations court order (Pen. Code, § 273.6, subd. (a); counts 2 - 6). The court sentenced appellant to jail for five years. We affirm the judgment.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on October 3, 2008, Phuong N. (Phuong) and Tina Doan (Tina), appellant's wife and daughter, respectively, obtained a restraining order against appellant, prohibiting him from coming within 100 yards of Phuong, Tina, and/or their Rosemead home. The order also prohibited him from threatening or harassing Phuong or Tina. The order was effective until October 2, 2013.
Phuong testified that in April 2009 and May 2009, appellant would come to within 49 feet of the house all the time at night and would yell and curse. Appellant told Phuong he would kill her and she could see whether she could still make an offering to Buddha. Phuong became so sad she attempted suicide. Tina testified that, during the above period, appellant would drive up, stop his vehicle in the middle of the street about 44 feet from the house, and yell. He would yell he would burn the house down, and he threatened to kill Phuong and Tina. (Count 6.) Appellant continued his harassing behavior during June 2009 and July 2009. (Count 5.) As a result, Phuong spent weekends at the temple.
In August 2009 and September 2009, appellant repeatedly would come by all the time, stop his car, and yell and curse as he had done previously. (Count 4.) Phuong's children advised her to move. In October 2009 and November 2009, appellant continued coming by the house and yelling he would kill Phuong and Tina, and burn the house down. (Count 3.) Phuong was unable to sleep at night because she was afraid appellant would hurt her. Phuong moved in with a friend to avoid appellant. About 1:00 a.m. on December 24, 2009, Tina was outside praying on the porch. Appellant drove up, stopped in the middle of the street, and screamed at Tina, " 'Keep on praying. Your house will be burned down and all you guys will die.' " (Count 2.)
In defense as to counts 2 through 6, inclusive, appellant testified to the effect he did not violate the restraining order, and Phuong and Tina were fabricating.
ISSUE
Appellant claims the trial court abused its discretion by imposing the five-year jail sentence.
DISCUSSION
Appellant's Sentence Was Proper.
1. Pertinent Facts.
The probation report prepared for a February 4, 2010, hearing reflects appellant was born in 1952. On October 14, 2008, appellant was arrested for a violation of Penal Code section 273.6, subdivision (a). On October 20, 2008, appellant was convicted of that offense as a misdemeanor, placed on probation for three years, and ordered to serve eight days in local custody. Appellant was arrested in the present case on December 29, 2009. A police report indicated that, shortly after his arrest, appellant suffered chest pains and was transported to the hospital.
The probation officer indicated as follows. Appellant's arrest history did not reflect a significant criminal background, but the present matter was significant because appellant had displayed little regard for the authority of the court. Moreover, appellant appeared to be escalating his level of terror against the victims. He had issued credible threats as a result of which at least one victim reported she and her family could not rest or sleep in their home for fear appellant might harm them or send someone to harm them. Records reflected appellant committed multiple violations of the protective order. In light of the present matter, appellant's contempt of court, and his poor progress under court supervision, court intervention had not sufficiently impacted appellant.
The report lists as aggravating factors that the crime involved great violence, great bodily harm, a threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness, appellant was on probation or parole when the crime was committed, and his prior performance on probation or parole was unsatisfactory. The report listed as the sole mitigating factor that appellant had no prior criminal record, or an insignificant record of criminal conduct considering the recency and frequency of prior crimes.
The probation officer recommended that, in the event appellant was convicted of the present charges and sentenced to prison, the court should sentence appellant to prison for the middle term, suspend execution thereof, and grant appellant probation for three years on the conditions, inter alia, that he serve 270 days in jail and cooperate with the probation officer in a plan for psychological counseling.
A letter dated May 27, 2010, from Dr. Terry S. Gock, a clinical psychologist, to the court reflects as follows. The letter, a "Psychological - Legal Report," indicated as follows. Pursuant to the court's order, Gock examined appellant on May 26, 2010, in jail for one hour. Gock also interviewed Tina for 15 minutes.
According to Gock, appellant was born and raised in Vietnam, and came to the United States in 1992. As to the present matter, appellant denied he had made threats or violated the restraining order. He explained he was driving on the night of December 23, 2009, with a friend to deliver holiday gifts. Appellant initially insisted to Gock that appellant did not drive by his family's house that night. However, appellant later admitted his friend had told him that they had driven by appellant's house without appellant's knowledge. Gock asked how appellant could not have recognized his own house when they drove by it. Appellant offered no explanation.
Gock noted the court had asked Gock to address the issue of the likelihood appellant would harm Phung and Tina. Gock indicated as follows. Appellant's psychosocial history revealed he had suffered physical and emotional trauma during his service in the South Vietnamese military during the war. Appellant was required to do hard labor in a "re-education camp" in Vietnam from 1975 to 1978, after the North Vietnamese took over his country. It was thus likely appellant was suffering from long- term, chronic posttraumatic stress disorder. Appellant did not appear to be able to comply with the restraining order because of his emotional instability and anger control problem. The likelihood he might cause physical harm to Phung and Tina because of his emotional and behavioral volatility was quite high if he was returned to the community without effective treatment and monitoring. Appellant reportedly had exhibited significant emotional and behavioral instability during his past court appearance, e.g., he cried uncontrollably in court.
Gock indicated a culturally competent and clinical mental health service regimen which involved case management and which was intensive and integrated would be required for appellant to have any chance of adequate improvement. Although appellant related he had never received mental health services, available background information revealed that from about 2001 to 2007, he participated in outpatient mental health treatment (including antidepressant medications) at the Pacific Clinics Asian Pacific Family Center, a service provider for the Los Angeles County Department of Mental Health. Because of appellant's psychiatric symptoms, Gock recommended a mental health regimen offered by the Asian Pacific Islander Alliance Program.
At the July 28, 2010, sentencing hearing, the prosecutor asked the court to impose the maximum punishment of five years in jail, "less because I'm concerned about punishment, and more because I'm concerned about the continuing safety of the victims." The prosecutor indicated Tina wished to be heard and he expected her to say that Phuong and Tina lived in continuing fear of appellant, and would have sold the house and moved except for the economy. Tina told the court she was afraid of appellant and afraid he would follow Phuong.
The court asked appellant's counsel if he wished to be heard. Appellant's counsel replied no, except he commented the present offenses were misdemeanors, appellant had been acquitted on count 1 (which alleged he committed a criminal threat against Tina (Pen. Code, § 422) on December 24, 2009), and appellant already had served significant time in custody.
The court indicated as follows. The People had been agreeable at some point with the court placing appellant on probation with credit for time served on the condition, inter alia, he receive psychological counseling. Gock later evaluated appellant and expressed very serious concerns that appellant, who apparently suffered from posttraumatic stress disorder, was incapable of monitoring his behavior. This put the family at extreme risk.
The court stated, "this is a very sad situation where you have someone who has served in the military, apparently honorably, and then is essentially a prisoner of war and, as a result, suffers all of these severe mental health issues, and then comes to the United States and is incarcerated, in some measure, because of a deterioration of his mental health because of his service to his country. So it's a very sad situation. [¶] On the other hand, I need to worry about the safety of the community which, in this particular case, is his family[.]"
The court observed appellant's counsel had tried very hard, but apparently unsuccessfully, to find a placement other than jail for appellant. Appellant's counsel confirmed he had not heard back from "Asian Pacific" that it would accept appellant. The court then stated, "I think probably his mental health issues and his outbursts are going to prevent him from being anywhere else. [¶] So at this juncture I feel that the only thing I can do to safeguard his family is to have him be maxed out. If I had any realistic hope of his functioning on probation, I would follow that course, but I just don't see that before me." As to counts 2 through 6, the court sentenced appellant to jail for five consecutive one-year terms. The court awarded 424 days of precommitment credit, including 212 days of custody credit.
2. Analysis.
Appellant claims the trial court erroneously failed to grant him probation and erroneously imposed the maximum sentence. We disagree. Assuming without deciding appellant preserved for appellate review by appropriate objection in the trial court the issues he now raises, a trial court has broad discretion to determine whether a defendant is suitable for probation (People v. Welch (1993) 5 Cal.4th 228, 233), and a defendant bears a heavy burden when attempting to show the court has abused that discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) A court commits an abuse of discretion by denying probation only when the court's determination is arbitrary, capricious, or beyond the bounds of reason. (See People v. Warner (1978) 20 Cal.3d 678, 683.) Moreover, a single aggravating factor may support the denial of probation (People v. Robinson (1992) 11 Cal.App.4th 609, 615), and the court is presumed to have considered relevant criteria in the California Rules of Court pertaining to the grant or denial of probation absent a record affirmatively reflecting otherwise. (Cal. Rules of Court, rule 4.409.)
All further references to rules are to the California Rules of Court.
Rule 4.414, sets forth criteria affecting a trial court's decision to grant or deny probation. Moreover, rule 4.408(a) provides, "The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge."
In the present case, the trial court, while characterizing the instant case as very sad, nonetheless signaled the court's overriding concern was for the safety of appellant's family; therefore, the court imposed the maximum possible incarceration.
On this record, we believe the trial court effectively denied probation, considering, as to rule 4.414, whether the defendant inflicted emotional injury upon Phuong (rule 4.414(a)(4)), his prior performance on probation (rule 4.414(b)(2)), his willingness (or unwillingness) to comply with the terms of probation (rule 414(b)(3)), his ability to comply with reasonable terms of probation as indicated by his health and mental faculties (rule 4.414(b)(4)), and the likelihood that if not imprisoned, appellant would be a danger to others (rule 4.414(b)(8)).
The trial court was also entitled to rely on other factors (rule 4.408(a)), and the record reflects the trial court implicitly considered rule 4.410, pertaining to the general objectives of sentencing and, in particular, the objectives of protecting society (rule 4.410(a)(1)), punishing appellant (rule 4.410(a)(2)), encouraging appellant to lead a law-abiding life and deterring him from future offenses (rule 4.410(a)(3)), and preventing appellant from committing new crimes by isolating him for the period of incarceration (rule 4.410(a)(5)).
On this record, it also reasonably may be inferred from the trial court's denial of probation that the court relied on the facts the crimes involved threats of great bodily harm (rule 4.421(a)(1)) and he was on probation when the crimes were committed (rule 421(b)(4)). Although the probation officer recommended imposition of a prison sentence, suspension of execution thereof, and the granting of probation, the court was not obligated to follow that recommendation. (People v. Downey (2000) 82 Cal.App.4th 899, 910.) Nor was the trial court required to follow Gock's recommendations. (Ibid.)The trial court did not abuse its discretion by denying probation.
Moreover, a trial court has broad discretion in deciding whether to impose concurrent or consecutive sentences(People v. Leon (2010) 181 Cal.App.4th 452, 467), and we review that exercise under an abuse of discretion standard (People v. Bradford (1976) 17 Cal.3d 8, 20) with the understanding a single aggravating factor supports imposition of a consecutive sentence (People v. Davis (1995) 10 Cal.4th 463, 552).
Rule 4.425(a) sets forth criteria affecting a trial court's decision to impose consecutive rather than concurrent sentences. Those criteria, as relevant here, include facts relating to the crimes, i.e., whether the crimes and their objectives were predominantly independent of each other (rule 4.425(a)(1)), whether the crimes involved separate threats of violence (rule 4.425(a)(2)), and whether the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior (rule 4.425(a)(3)). The trial court effectively concluded that each of these criteria applied in the present case to justify imposition of consecutive sentences.
The court is presumed to have read and considered the probation report (People v. Black (2007) 41 Cal.4th 799, 818, fn. 7) and the court heard argument of counsel. There were ample factors justifying the denial of probation and imposition of consecutive sentences, and the trial court's denial of probation, and imposition of consecutive sentences, as to counts 2 through 6, inclusive, was well within the sound discretion of the trial court.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
CROSKEY, J.