Opinion
A151278
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. OSCAR RENE PINEDA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1605215)
A jury convicted defendant Oscar Rene Pineda of felony stalking, misdemeanor vandalism, and misdemeanor violation of a protective order, and the trial court sentenced him to four years in prison.
Pineda raises two challenges to his sentence. He contends: (1) the trial court abused its discretion in denying probation and imposing the upper term for the stalking conviction because it considered Pineda's lack of remorse, and (2) the concurrent one-year term imposed for misdemeanor vandalism must be stayed under Penal Code section 654. We affirm.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2015, Pineda's ex-wife hired family law attorney Edward Schrock to represent her regarding child visitation issues with Pineda. After Schrock made filings in the family law court on her behalf, Pineda's ex-wife reported that she began receiving hostile emails from Pineda. In May 2015, Schrock requested a domestic violence restraining order protecting her from Pineda, which was granted in June.
Starting in June 2015, Schrock began receiving harassing and threatening emails from Pineda. In the fall of 2015, alarming incidents began to occur at Schrock's office and home. In October, the keyhole to the front door of his office was glued. After midnight on November 1, Schrock, his wife, and their child were awakened in their home by loud explosions. Schrock ran outside and saw exploded fireworks, a bleach bottle, and two toilet paper rolls on fire. Early in the morning on November 4, Schrock was awakened at home by lights shining in the window. He saw a white SUV or van drive by and heard a thump. Later, Schrock found unexploded fireworks embedded with toothpicks on his front lawn. On November 6, Schrock and his family were again awakened by fireworks.
Schrock described many of the emails as long, rambling, and incoherent, but others were more menacing. In September 2015, Pineda referred to lobbing a grenade and, in another message wrote, "Tremble in fear, Eddie." Pineda wrote, "It's too late to get out of the way, Eddie. I'm holding you responsible." In an email sent to Schrock in November 2015, Pineda wrote, "Take your shit, crawl under a rock" or Pineda would "pursue [Schrock] . . . for all his time and energy left on the planet." Pineda wrote that "he wouldn't stop until he drag[ged Schrock] through the feces, urine sludge." Other messages suggested Pineda was following Schrock; he asked Schrock if he golfed (he does regularly) and later wrote that he missed Schrock at the golf course. Also in November 2015, Pineda emailed, "Motherfucker, it's rainy season, and the forecast calls for pain."
Schrock requested a civil harassment restraining order against Pineda and received an immediate temporary restraining order (TRO). The day Pineda was served with the TRO, Schrock saw him drive through his office parking lot in a white SUV or van that appeared to be the same vehicle Schrock saw outside his home in the early morning of November 4. Pineda then sent a threatening email to Schrock, referring to Schrock's wife by her first name.
On December 30, 2015, Schrock was granted a three-year civil harassment restraining order against Pineda. After a few months, however, the harassment resumed and intensified. For over a year, Schrock was terrified by the emails and incidents at his home and office because Pineda was mentally unstable. Schrock was frightened for his wife and particularly for his child, whose bedroom was near where the fireworks were set off.
In April 2016, Pineda sent a threatening email about Schrock to Schrock's attorney. On July 5, a powerful firecracker was lit on the Schrocks' front lawn. On July 24, Schrock backed his car out of his driveway and ran over a spike-strip that punctured his tire. The same day, Schrock found an envelope in the mail slot at his office containing a dead fish. That night, firecrackers were lit at the Schrocks' home. In the early morning of July 29, the locks of Schrock's office were again glued. On October 15, Schrock, his wife, and their child were awakened by fireworks again. Outside, Schrock saw Pineda in the white SUV Schrock previously had seen him driving.
Following a jury trial, Pineda was found guilty of felony stalking (§ 646.9, subd. (b)), vandalism with under $400 in damage, a misdemeanor (§ 594, subd. (b)(2)(A)), and violation of protective order, a misdemeanor (§ 273.6, subd. (a)).
This offense arose from Pineda's violation of the domestic violence restraining order protecting his ex-wife. Since this conviction is not at issue on appeal, we have not described the facts underlying the offense.
DISCUSSION
A. Denial of Probation and Imposition of the Upper Term
1. Background
The probation officer recommended Pineda be denied probation and sentenced to the upper term of four years for stalking. Pineda filed a statement in mitigation requesting supervised probation and mental health/substance abuse treatment as appropriate or, in the alternative, the low term.
In requesting probation, Pineda argued his crime was less serious than other instances of the same crime, he was not armed, Schrock was not a particularly vulnerable victim, there was no physical injury and no quantifiable emotional harm, the monetary loss was minor, the crime was committed after "much provocation, in that Mr. Pineda lost custody and visitation rights to his children as a direct result of Mr. Sch[r]ock's aggressive representation of the Defendant's ex-wife," the manner in which the crime was carried out was childish rather than professional, he did not take advantage of a position of trust, and he had only one prior criminal conviction. (Cal. Rules of Court, rule 4.414(a)(1)-(5), (7)-(9), (b)(1)). In mitigation, he asserted he had an insignificant record of criminal conduct and was suffering from a mental condition, depression. (Id., rule 4.423(b)(1)-(2).)
At the sentencing hearing, the trial court began by stating its tentative decision was to deny probation. Considering the criteria affecting probation, the court identified four unfavorable criteria related to the crime: (1) Pineda used firecrackers and explosives, (2) a vulnerable victim, Schrock's child, was involved, (3) Pineda inflicted significant emotional injury on a number of people, and (4) he was an active participant. (Cal. Rules of Court, rule 4.414(a)(2)-(4), (6)). The court found no favorable criteria related to the crime. It found two unfavorable criteria related to Pineda—he was not remorseful, and he was likely a danger to others if not imprisoned (id., rule 4.414(b)(7) and (8))—and one favorable factor, his prior criminal record was minimal (id., rule 4.414(b)(1)).
The trial court stated it was considering either the midterm of three years or the upper term of four years for the stalking offense. It found six factors in aggravation and one factor in mitigation. The aggravating factors were (1) the crime involved a threat of bodily injury, (2) Pineda used a weapon (firecrackers and other explosives), (3) the victims included a child, (4) Pineda had two other misdemeanor offenses that could be sentenced consecutively, (5) the crime involved planning, and (6) Pineda was on probation at the time he committed the offense. (Cal. Rules of Court, rule 4.421(a)(1)-(3), (7), (8) and (b)(4)). The only mitigating factor was that Pineda's prior criminal record was insignificant.
The court indicated its tentative decision on the two misdemeanor counts was to impose concurrent one-year terms. The court then said, "And other factors that I consider on both probation and the term to be served that I think are really significant—they all kind of interrelate—that Mr. Pineda has shown no acknowledgment whatsoever of wrongdoing. There's no indication he has any understanding whatsoever of the seriousness of his offenses or the effect that they have had on victims. He has made no apology whatsoever. He shows absolutely no remorse. He has not made any kind of a statement that he's gonna stop doing this type of conduct. And I think those are particularly troubling."
Pineda's attorney responded that she had recommended her client not testify at trial and not speak with the probation department, so any inference of lack of remorse was due to her strategic decisions. Pineda then made a statement to the court. He said he wanted to apologize to Schrock's wife, and he had no idea Schrock had a child. But the greater part of Pineda's statement was an airing of his own perceived grievances. He talked about how he had been wronged by his ex-wife, Schrock, and the family law court and referred to an apparent family court proceeding as "the atrocity that was allowed to happen." Pineda continued, "But they won. . . . my soul is in ruins. I don't care what happens to me. I've been dead for two years. I'd rather pay the price today for the things that I have done than accept the bull—I'm sorry—than to accept the mockery of law that happened in that courtroom that day between Watson [apparently referring to a family court judge] and Mr. Edward Schrock. I won't dignify the lies that they came up with about me by even addressing them. I'm not gonna go into a domestic violence program for things that I did not do." He concluded, "I didn't mean to hurt anyone. No one was ever going to get hurt. I just wasn't gonna let [my daughter] down and let him walk away, done deal, game over. [¶] I apologize for being too poor to afford representation in this court. I am guilty of letting my daughter . . . down, and I'm guilty of contempt of this court. Thank you."
Schrock's wife addressed the court. She said she had worked in social services for over two decades, working in the child welfare system and the adult protective system, and she had never felt unsafe in her home until these incidents started happening. She questioned the sincerity of Pineda's apology and observed his statement to the court indicated that he was still fixated on Schrock and blamed Schrock for his situation. Pineda's ex-wife then told the court that Pineda did not think the rules applied to him, he was dangerous, "fixated on scary things," and unpredictable, and he had terrorized her family.
The prosecutor noted that already a great effort had been made "to try to discourage Mr. Pineda from continuing this course of conduct short of incarceration," including restraining orders and court findings that Pineda was in violation of those orders. The prosecutor argued Pineda "simply is not going to stop this behavior short of a prison sentence."
The trial court denied probation and imposed the upper term of four years. The court explained, "You know, when I finished my comments and then I heard . . . [Pineda's] statement—and I listened to it carefully. I was particularly interested to see what, if anything, he would say about some of the things I said right at the end. I've never seen an acknowledgment of wrongdoing, no understanding of the effect of all of this on the victims, no apology, no remorse, no statement that he will stop, no understanding of the seriousness of his actions. And I still don't hear those. [¶] My tentative in all respects is going to be the judgment and sentence of the Court. [¶] As to the term, I am going to set that at the upper term of four years."
2. Analysis
" 'The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion.' " (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311 (Weaver), disapproved of on another ground by People v. Cook (2015) 60 Cal.4th 922, 939.) " 'Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' " (Weaver at p. 1311.) "[I]n determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable." (Weaver at p. 1313.)
"A trial court's decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal 'unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' . . . Even if a trial court has stated both proper and improper reasons for a sentence choice, 'a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.' " (People v. Jones (2009) 178 Cal.App.4th 853, 860-861 (Jones).)
Considering the criteria affecting probation in this case, the trial court found six were unfavorable and only one was favorable. In deciding the length of the term for stalking, the trial court identified six aggravating circumstances other than lack of remorse and only one mitigating circumstance. The record supports the court's findings, and we see no abuse of discretion in its decisions to deny probation and impose the upper term.
In challenging the sentencing decision, Pineda first argues that insufficient evidence in the record supports the trial court's finding of lack of remorse. We disagree. We have read the transcript of Pineda's statement to the court, and while he apologized to Schrock's wife, he made no apology to Schrock himself and, to the contrary, continued to blame Schrock, his ex-wife, and the legal system for his circumstances. Pineda accused Schrock of lying about him in the family law court, and said he wasn't going to "let him walk away, done deal, game over," suggesting that Pineda believed Schrock deserved the harassment Pineda had inflicted upon him. Further, we defer to the trial court's determination that Pineda failed to show any understanding of the seriousness of his crimes since it was able to observe Pineda's demeanor when he addressed the court.
Pineda next argues that, regardless of the sufficiency of the evidence, lack of remorse is not a proper ground to deny probation or aggravate a sentence. But courts have recognized that a defendant expressing no remorse is a proper basis for denying probation. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 366, disapproved of on another point by People v. Whitmer (2014) 59 Cal.4th 733, 741-742; People v. Leung (1992) 5 Cal.App.4th 482, 507 (Leung); Cal. Rules of Court, rule 4.414(b)(7).) Similarly, it has been said that "lack of remorse may be applied to aggravate as an additional relevant factor pursuant to rule 408 [now California Rule of Court, rule 4.408, the catch-all provision]." (People v. Key (1984) 153 Cal.App.3d 888, 900-901.)
People v. Walker (1988) 47 Cal.3d 605, cited by Pineda is inapposite because it involved the death penalty. In capital cases, our high court has held that a prosecutor may not present evidence in aggravation that is not relevant to the statutory factors listed in the death penalty statute, and "a lack of remorse expressed [after the crime] . . . is not an aggravating factor under the statute." (People v. Jones (2003) 29 Cal.4th 1229, 1265.) But there is no similar statutory limitation when a sentencing court considers whether to grant probation and the length of a term of incarceration. (See Cal. Rules of Court, rule 4.408(a) ["The listing of factors in these rules for making discretionary sentencing decisions is not exhaustive and does not prohibit a trial judge from using additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge."].)
There is an exception to the use of lack of remorse as an aggravating factor. Courts have recognized, "Lack of remorse can be used to aggravate a sentence ' "unless the defendant has denied guilt and the evidence of guilt is conflicting." ' " (People v. Weber (2013) 217 Cal.App.4th 1041, 1064, fn. 7.) Pineda claims the trial court erred in considering his lack of remorse because he disputed that he left fireworks and the spike-strip at Schrock's house, put glue in Schrock's office on multiple occasions, and left a dead fish in Schrock's mail slot. We are not persuaded. Pineda apologized to Schrock's wife, an apology that would have been unnecessary if he had not caused the incidents at the Schrocks' house. Pineda also said he'd "rather pay the price today for the things that I have done," further acknowledgment that he had done things that warranted his convictions. Given Pineda's statement at sentencing, the trial court did not abuse its discretion in implicitly finding that the exception stated in Weber did not apply in this case because Pineda did not deny his guilt.
Pineda argues lack of remorse may not be considered as an aggravating circumstance because doing so would infringe on his constitutional right to maintain his innocence. We need not address this argument, however, because in any event, Pineda has not established prejudice. He claims the trial court made its sentencing decision "solely" based upon a finding of lack of remorse. But the trial court identified five other unfavorable circumstances for denying probation and only one favorable circumstance, and six other aggravating factors and only one mitigating circumstance. A single factor in aggravation will support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Even assuming it was improper to consider lack of remorse in sentencing, given the many other circumstances the trial court found unfavorable and in aggravation, we cannot say it is reasonably probable the court would have granted Pineda probation or imposed a lesser sentence absent the purported error. (See Weaver, supra, 149 Cal.App.4th at pp. 1318-1319; Jones, supra, 178 Cal.App.4th at p. 861.) B. Section 654
Pineda was convicted of felony stalking (count 1) and misdemeanor vandalism (count 2). He was sentenced to a four-year term for count 1 and a concurrent one-year term for count 2. Pineda argues the one-year term for count 2 must be stayed under section 654.
He was also convicted of misdemeanor violation of a protective order; that conviction is not at issue on appeal. --------
Section 654, subdivision (a), provides in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 precludes " 'multiple punishments for a single act or indivisible course of conduct. [Citation.]' [Citation.] . . . 'The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.' [Citation.] 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]' " (People v. Coleman (1989) 48 Cal.3d 112, 162.)
"A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.) A trial court has broad latitude in making this determination, and the reviewing court must view the evidence in a light most favorable to the sentence and presume every supporting fact that could reasonably be deduced from the evidence. (People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4 (Deegan).)
Pineda contends the separate offenses of stalking and vandalism were based on a continuous course of conduct with a single criminal objective. The Attorney General responds that Pineda committed two very different crimes with different objectives.
Section 646.9 (stalking) makes it a crime to "willfully, maliciously, and repeatedly follow[] or willfully and maliciously harass[] another person and make[] a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family." (§ 646.9, subd. (a).) The Attorney General argues Pineda committed stalking when he sent threatening emails and placed exploding fireworks at Schrock's home with the intent to place Schrock in reasonable fear for his safety and the safety of his immediate family. Vandalism, on the other hand, includes maliciously damaging personal property not one's own. (§ 594, subd. (a)(2).) The Attorney General posits that Pineda committed vandalism when he put glue in the lock of Schrock's office with the separate intent to cause Schrock "inconvenience, annoyance and some minor expense," not to place Schrock in fear for his safety.
The Attorney General's position is not an unreasonable inference from the record. Given that we must presume in support of the sentence every fact that could reasonably be deduced from the evidence (Deegan, supra, 247 Cal.App.4th at p. 545, fn. 4), we presume the trial court implicitly found the crimes were separate and involved separate objectives. Therefore, section 654 does not apply.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.