Opinion
D069517
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. PATTI JEANNINE WOLFE, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Theodore M. Cropley and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN328366) APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Theodore M. Cropley and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
Based on an agreement that she would be sentenced to no more than nine years in prison and that the remaining charges against her would be dismissed, Patti Jeannine Wolfe pled guilty to one count of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)) with the further admission that she personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court sentenced Wolfe to eight years in prison. Specifically, the trial court imposed the middle term sentence of three years for the assault conviction and the upper term sentence of five years for the great bodily injury enhancement, and it ordered that an upper term sentence of four years for the involuntary manslaughter conviction be served concurrently.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Wolfe's sole argument on appeal is that the trial court abused its discretion in sentencing her to the upper term for the great bodily injury enhancement because it did not consider all the mitigating evidence she presented. We conclude that the trial court did not abuse its discretion, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Facts of Wolfe's Crimes
Wolfe lived with her husband, Albert; her teenage daughter; Albert's adult daughter Marie; and Marie's husband and two children, aged 6 and 10.
Pursuant to California Rules of Court, rule 8.90(b), which directs us to consider the use of first names where appropriate to preserve crime victim anonymity, we refer to Albert and his daughter by their first names, and we intend no disrespect by doing so.
Because Wolfe pled guilty and no trial was held, we base our statement of facts on the evidence presented at the preliminary hearing.
On February 1, 2014, Albert who was 59 years old, suffered a heart attack and stayed overnight in the hospital. Upon Albert's return home on February 2, he and Wolfe almost immediately started arguing. The couple's relationship was deteriorating and they had discussed separating, but were arguing over who would move out of the house. During the argument, Albert grabbed Wolfe's purse and started to dump out its contents so he could locate her cellphone to call the police. Wolfe wanted to stop Albert from dumping out her purse, so she stabbed him with a kitchen knife that she had been using to prepare salad. Albert had his back to Wolfe during the stabbing, and the knife made an approximate two-inch deep wound in Albert's upper back. Marie called 911 and Albert was taken to the hospital. According to Marie, Wolfe stayed inside the house immediately after the stabbing and did not offer any first aid or assistance, and Wolfe was smiling and laughing about the situation, saying that Albert should not have been reaching for her phone.
The knife wound pierced an intercostal artery and caused bleeding into Albert's chest cavity. Doctors drained a total of two and half liters of blood from Albert's chest, representing approximately 40 percent of Albert's total blood volume. Albert spent approximately eight days in the hospital before being released on February 10. During the hospital stay, doctors also performed a stent procedure on a coronary artery due to Albert's advanced heart disease, which had caused a blockage of over 80 percent in each of Albert's coronary arteries.
Albert returned to the hospital four days later due to an infection. He was diagnosed with pneumonia and empyema, which is an infection between the lung and the chest wall. The medical examiner who performed the autopsy, Jonathan Lucas, testified at the preliminary hearing that the infections were likely complications from the stab wound. Albert was treated in the hospital for two weeks and then released on February 28.
Albert returned to the hospital for a final time on March 10, complaining of shortness of breath. Doctors were concerned about the possibility that Albert had sepsis and pneumonia. During his hospitalization, Albert was found unresponsive in his hospital bed on March 14 and was pronounced dead. The likely cause of death was a heart attack.
Medical examiner Lucas testified at the preliminary hearing that the cause of Albert's death was a combination of the stab wound and heart disease. According to Lucas, the stab wound and its complications exacerbated Albert's heart disease and hastened his death. Lucas therefore identified the manner of death as homicide.
At the preliminary hearing, medical examiner Todd Grey, retained by Wolfe to review the case, explained that he was unable to conclude that complications from the stab wound were a cause of Albert's death. According to Grey, although the stress of being stabbed may have played a role in Albert's death, the relationship between the stabbing and Albert's eventual death was too remote and too tenuous for him to conclude that Albert's death was caused by the stab wound. Grey therefore concluded that the cause of death was undetermined. B. The Charges Against Wolfe and Her Guilty Plea
An amended information charged Wolfe with murder (§ 187, subd. (a)), corporal injury to a spouse (§ 273.5, subd. (a)), and assault with a deadly weapon (§ 245, subd. (a)(1)). As to each count, it was also alleged that Wolfe personally used a deadly weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (§§ 1192.7, subd. (c)(8), 1203.075, subd. (a)).
Wolfe pled guilty to one count of involuntary manslaughter (§ 192, subd. (b)) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)) with the further admission that she personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). As part of the guilty plea, the parties agreed that Wolfe would be sentenced to a prison term of no more than nine years and the remaining charges would be dismissed. C. The Sentencing Hearing
In preparation for the sentencing hearing, Wolfe submitted a sentencing brief, attached to which was a report prepared by forensic psychologist Lynette Rivers, who had examined Wolfe and reviewed relevant documentation. Rivers's report set forth Wolfe's personal and family history, including details about the relationship between Wolfe and Albert. The details in the report were based on Wolfe's own account and input from Wolfe's family and friends who were familiar with the relationship. Among other things, Rivers stated that Wolfe had a pattern of being in relationships with abusive men and had "several qualities associated with 'Battered Women's Syndrome.' " She noted that although conflicting accounts existed as to the extent to which Wolfe was emotionally or physically abused in the relationship with Albert, and as to whether Wolfe also was physically abusive to Albert, it was clear that the couple was in a "dysfunctional and destructive relationship in which both parties suffered." Rivers explained that according to Wolfe, the stabbing occurred during a verbal altercation with Albert and Wolfe felt that she was " 'pushed to the edge' " by years of turmoil and abuse in the relationship.
At the sentencing hearing, the trial court noted that it had reviewed, among other things, Wolfe's sentencing brief as well as the probation officer's report, including the attachments to that report. Those attachments consisted of several letters from friends and family of Wolfe describing the nature of Albert's relationship with Wolfe. The letters, which were also described by Rivers in her report, contained information about the difficult and emotionally abusive nature of the relationship between Albert and Wolfe.
During the sentencing hearing, the trial court also heard statements from Albert's family, including a statement from Marie, who described the impact of the crime on her young children, who were present to witness the stabbing. The probation officer's report also quoted a statement from Marie, who stated that Wolfe did not show any remorse for stabbing Albert, either immediately after the assault or subsequently when Albert died.
The trial court concluded that there were no unusual circumstances that justified a grant of probation despite a presumptive statutory ineligibility (Cal. Rules of Court, rule 4.413(b); § 1203, subd. (e)(2), (3)), and it sentenced Wolfe to eight years in prison. The sentence was based on the imposition of the middle term sentence of three years for the assault conviction and the upper term sentence of five years for the great bodily injury enhancement. The court also imposed an upper term sentence of four years for the involuntary manslaughter conviction, which it ordered to be served concurrently.
In explaining that no unusual circumstances existed to justify a grant of probation, the trial court noted that the tumultuous nature of the relationship between Albert and Wolfe did not provide a justification for Wolfe's stabbing of Albert under the circumstances present on February 2, 2014. "Every relationship has difficulties and every relationship has emotional outbursts. Every relationship has things said that we wish we could take back. However, on the day and the time that this incident happened, there was absolutely no excuse for [Wolfe] to take a knife and drive it into the back of [Albert]. There's absolutely nothing in the law that excuses that behavior. This man had just come back from the hospital from having suffered what they say was a mild heart attack. So certainly he was in no position to be a threat to [Wolfe], especially when he had his back turned. In fact, there's some evidence that [Albert] was trying to call -- whether it was either the police or a family member to come over to rectify the situation that was going on in the house. [Wolfe's] response was to take a knife and strike him in the back with it, causing very serious injury. And her response . . . was not to cry out, Oh my God! What did I do? Or to try to render some assistance. But for the fact that [Marie] was outside and able to help, I don't think that anybody from [Wolfe's] family was going to render any help." The trial court noted, "And she did this in front of the children. There was no remorse. The victim was especially vulnerable."
The trial court explained that it would select the middle term of three years for the assault conviction because Wolfe "has not had a criminal history" and "[l]egally you have to recognize" that. However, for the great bodily injury enhancement (§ 12022.7, subd. (e)), the trial court stated that it was selecting the upper term of five years. As the trial court explained, "The reason is that . . . [Albert] was in a weakened condition. She stabbed him in a vulnerable area. There's other parts of the body that if she was just trying to . . . assault him, she could have assaulted him in a way that he was not stabbed in the torso, which made him especially vulnerable. Again, there was absolutely no justification. There was no assaultive behavior on his part. This man could not defend himself because he had his back turned. To do this in front of children is reprehensible. She has damaged not only her family by doing this, but the impact on these children is hard to comprehend. . . . I'm giving her a break of one year because she does not have a prior record, but there's nothing else about this case that leads the Court to believe that she should not serve any less than eight years in the state penitentiary."
II.
DISCUSSION
Wolfe's sole argument on appeal is that the trial court abused its discretion in imposing the five-year upper term sentence on the great bodily injury enhancement. (§ 12022.7, subd. (e).) Specifically, Wolfe argues that "the trial court's failure to take all mitigating information into account, not simply the lack of a criminal record, constituted an abuse of discretion."
Under section 12022.7, subdivision (e), the enhancement for personally inflicting great bodily injury under circumstances involving domestic violence requires a sentence of three, four or five years. --------
Under section 1170, subdivision (b), "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." A trial court has the discretion "to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. [Citations.] Rather, 'a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.' " (People v. Jones (2009) 178 Cal.App.4th 853, 866 (Jones).) "In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports . . . , and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term . . . ." (§ 1170. subd. (b).) "Neither section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances. Thus, a trial court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)
A trial court's decision to impose an upper term sentence is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' . . . [A] trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid., citation omitted.)
Wolfe contends that the trial court abused its discretion because it "clearly failed to take all the material facts into consideration." More specifically, she contends that because the trial court commented that "[e]very relationship has difficulties and every relationship has emotional outbursts[,]" without discussing the abusive nature of the relationship between Wolfe and Albert, the trial court either "fail[ed] to actually read and absorb the psychologist's report and supportive letters" or "at the very least . . . fail[ed] to give serious thought to whether such evidence mitigated away from an upward departure."
We reject Wolfe's argument because we do not agree with its premise. There is nothing in the trial court's comments to indicate that it failed to consider all of the material facts, including the nature of the relationship between Wolfe and Albert as described in Rivers's report and the letters attached to the probation officer's report. "Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence." (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888.)
As we have explained, at the outset of the hearing, the trial court listed all of the materials that it had considered in reaching its sentencing decision, which included the probation officer's report (including its attachments) and Wolfe's sentencing brief. It proceeded to listen to argument from counsel, during which defense counsel set forth what he considered to constitute the mitigating factors in this case, focusing on the abusive nature of the relationship between Wolfe and Albert.
The trial court then set forth a lengthy explanation for its sentencing decision during which it considered and rejected the contention that the nature of the relationship between Wolfe and Albert should mitigate the sentence. As the trial court explained, although it recognized the tumultuous nature of the relationship, the situation during the stabbing was not one in which it was necessary for Wolfe to defend herself with violence. As the trial court observed, the altercation on February 2, 2014, was purely verbal in nature, Albert was not physically threatening Wolfe, and he had his back turned to her at the time of the stabbing.
Further, the trial court summed up its comments with an indication that it had considered all of the circumstances in imposing sentence but nevertheless believed that an upper term sentence was appropriate for the great bodily injury enhancement. Specifically, the trial court commented that other than Wolfe's lack of criminal record, "there's nothing else about this case that leads the Court to believe that she should not serve any less than eight years in the state penitentiary." (Italics added.)
In sum, having reviewed the record, we agree with the People's assessment that the trial court's comments at sentencing "suggest[] not that the court ignored the mitigation provided by the defense, but that the court concluded that the circumstances of the offense in aggravation outweighed the mitigation defense counsel presented."
In light of the trial court's discretion to " 'base an upper term sentence upon any aggravating circumstance that the court deems significant' " (Jones, supra, 178 Cal.App.4th at p. 866), we conclude that after considering all the evidence before it, the trial court was well within its discretion to select the upper term sentence for the great bodily enhancement based on the aggravating factors that it identified, namely the vulnerability of the victim, who had his back turned and had recently suffered a heart attack, and the impact to the children who witnessed the stabbing.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.