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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| THE PEOPLE,
Plaintiff and Respondent,
v.
DION E. DIN,
Defendant and Appellant.
| D071389
(Super. Ct. No. SCD264084) |
APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed.
Christopher J. Whelton; and Patrick Morgan Ford for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
Dion E. Din pleaded guilty to two counts of committing a lewd act against a minor in violation of Penal Code[1] section 288, subdivision (a). The superior court sentenced him to the middle term of six years in prison for the first count and added a consecutive term of two years—one-third of the middle term—for the second count, for an aggregate term of eight years in prison. On appeal, Din contends the court abused its discretion in issuing the sentence because it incorrectly concluded the following two aggravating factors applied: (1) Din took advantage of a position of trust in committing the crimes and (2) Din was not remorseful for his actions. The People assert Din forfeited these arguments by failing to object to the court's reliance on these factors at the sentencing hearing. We conclude Din did not forfeit these arguments, but that the superior court did not abuse its discretion in sentencing Din. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND[2]
Din and his niece, M.P., had a close relationship, and he was one of her favorite uncles. In October 2015, while visiting his family in San Diego, Din touched M.P., who was under the age of 14 at the time, inappropriately on more than one occasion.
On the first occasion, Din entered M.P.'s bedroom and grabbed her breasts. M.P. told Din to stop. He removed his hands and walked out of the room. A couple of hours later, M.P. was alone in the kitchen. Din walked up behind her and began rubbing her shoulders. She told Din to "move" and he tried to move his hand toward her breast but she ducked away and left the kitchen.
The following day, M.P. was watching a football game on a couch in the garage with Din. M.P.'s mother was in the garage for a while as well but had left. At some point, M.P. fell asleep on the couch and woke up to Din touching her breasts under her clothing. She also alleged he put his hand under her shorts and underwear and touched her vagina and bottom. M.P. jumped up from the couch, ran to her room, and locked the door.
M.P. did not tell her mother about either of the incidents because she was scared, but she did report them to a guidance counselor at school a couple of days later. The counselor called the police and, thereafter, M.P. also made a report to the police and participated in a forensic interview.
Din was charged with five counts of lewd acts upon a child under the age of 14, one for the incident in M.P.'s bedroom, one for the incident in the kitchen, and three for the incidents on the couch in the garage. Following the preliminary hearing, Din moved to exclude prior allegations of sexual misconduct related to two other individuals, both minors at the time the alleged incidents took place, as neither resulted in a conviction. The superior court made a preliminary ruling to exclude the first, as it occurred nearly 20 years ago, and the witness had recanted, but to allow the second, in which the victim alleged Din impregnated her in 2000 when she was 15 years old and he was approximately 34.
A few days later, Din agreed to a plea agreement. He pleaded guilty to counts 1 and 3 and admitted touching M.P.'s breasts in her bedroom and in the garage, the prosecutor agreed to dismiss the remaining charges, and the parties agreed to submit to sentencing by the court.
The probation department submitted two reports concerning sentencing and Din submitted a memorandum in support of his request for probation. The probation department noted the previous allegations against Din, that the victim in the present case was vulnerable, that Din took advantage of a position of trust when he committed the crimes against her, and that, despite his change of plea, Din did not show remorse and instead told the probation department he was innocent. Based on these aggravating factors, the probation department recommended the court sentence Din to a term of 10 years in prison. In his briefing, Din's counsel asserted Din had acknowledged his wrongdoing and was remorseful for the harm he caused to the victim and her family, and asserted a number of other allegedly mitigating factors. Before the sentencing hearing, however, Din filed a motion to withdraw his guilty plea, claimed he was innocent, and asserted he was not aware the probation department or court would consider the prior allegations against him in sentencing when he entered his plea.
The court denied Din's motion to withdraw his guilty plea and continued with sentencing. The court stated it had considered the probation reports and Din's sentencing memorandum and allowed additional argument from the parties. Din's counsel noted Din denied the prior allegations against him and M.P. had not been injured physically during the commission of the crimes at issue. He went on to explain, "t can be said that the defendant violated a position of trust. It's true she did say in the interview he was one of her favorite uncles. But the manner in which it was committed — he never threatened her at the time of the act, nor is there any evidence that he threatened her subsequently to maintain her secrecy." He therefore asked the court to sentence Din to two concurrent terms of the low or middle range of three or six years in prison.
The court stated it was not considering the previous uncharged allegations as an aggravating factor but was considering Din's lack of remorse and that he took advantage of a position of trust. The court also explained that it had accepted Din's plea to only two of the five charged counts, such that the potential sentence had already been reduced significantly. Based on those factors, the court concluded the middle term of six years was appropriate for the first offense. Regarding the third count, the court explained it was imposing one-third of the midterm consecutively because the two charges related to incidents that occurred on two different days. Thus, the court sentenced Din to an aggregate term of eight years.
DISCUSSION
On appeal, Din asserts the court abused its discretion in imposing the sentence because he did not take advantage of a position of trust as the victim was not left in his care and the lack of remorse factor was not applicable in light of his attempt to withdraw his guilty plea. The People assert Din forfeited these assertions by failing to object on those specific grounds in the superior court.
I.[i] General Legal Principles
Section 288, subdivision (a) specifies that an individual guilty of violating the statute shall be sentenced to three, six, or eight years in state prison. When a statute such as this provides three possible terms for incarceration, section 1170, subdivision (b) explains, "the choice of the appropriate term shall lie within the sound discretion of the court." In determining the appropriate term, the court may consider the record, the probation officer's report, and statements in aggravation or mitigation submitted by either party, the victim, or the family of the victim, among other items, and "shall select the term which, in the court's discretion, best serves the interests of justice." (Ibid.)
The court must state its reasons and the factors it considered in determining the term of the sentence, and a preponderance of the evidence must support each factor considered by the court. (People v. Scott (1994) 9 Cal.4th 331, 349.) Despite the court's discretion, there is a presumption towards the middle term, and the court should impose the lower or upper term only where supported by the balance of aggravating or mitigating factors. (Id. at p. 350.) However, it is only necessary for the court to find that a single aggravating factor is applicable in exercising its discretion to impose the upper term or to impose consecutive terms for additional convictions. (People v. Black (2007) 41 Cal.4th 799, 815; People v. Osband (1996) 13 Cal.4th 622, 728-729.) We review the court's determination for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.)
An appellant forfeits any contentions regarding "the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons" by raising them for the first time on appeal. (People v. Scott, supra, 9 Cal.4th at p. 356.)
II. Analysis
A. Forfeiture
We first address the People's contention Din forfeited his arguments by failing to raise them in the superior court. Din asserts he did not forfeit these arguments because he did object to the probation department's sentencing recommendation. We agree.
Prior to the sentencing hearing, Din submitted a sentencing memorandum in support of his application for probation. Therein, he addressed the factors considered by the court in determining whether probation is appropriate. Although Din later conceded probation was not appropriate here, a number of the factors addressed in the memorandum are the same as those the court here considered when determining the appropriate prison sentence, including nature of the crime, the defendant's prior record, and the defendant's remorse. Moreover, at the sentencing hearing, Din's counsel addressed his request to withdraw his plea and then, when the court denied that request, he addressed the relevant aggravating and mitigating factors, including specifically whether Din took advantage of a position of trust in the commission of the crime. These arguments were sufficient to put the court and parties on notice that Din did not believe the aggravating factors warranted a lengthy sentence here. (See People v. Welch (1993) 5 Cal.4th 228, 234-235 [purpose of the forfeiture rule is to bring errors to the attention of the trial court so they may be addressed]; In re Sheena K. (2007) 40 Cal.4th 875, 881 (Sheena K.) [same].)[3]
Therefore, we conclude Din did not forfeit his arguments on appeal and, even if he had, we would exercise our discretion to reach the merits. (See, e.g., Sheena K., supra, 40 Cal.4th at p. 887, fn. 7; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
B. Merits
Turning to the merits, we conclude the superior court did not abuse its discretion in imposing an aggregate sentence of eight years.
As a preliminary matter, we note that the court listed two additional factors related to sentencing that Din does not dispute on appeal. First, the court pointed out that the People had charged Din with three additional counts of lewd conduct in connection with his inappropriate conduct with his niece, but that the People and the court had agreed to dismiss those charges in exchange for Din's guilty plea.[4] Thus, the court had already dramatically reduced the potential sentence Din now faced. Second, in issuing consecutive terms, the court noted the two charges to which Din had pleaded guilty related to two separate incidents that occurred on two different days. These factors, alone, were sufficient to support the court's sentence and Din does not dispute the superior court's reliance on them in this appeal. (People v. Scott, supra, 9 Cal.4th at p. 350, People v. Black, supra, 41 Cal.4th at p. 815; People v. Osband, supra, 13 Cal.4th at pp. 728-729.)
Moreover, the court correctly concluded that Din took advantage of a position of trust when he committed the crime. Prior to the incident, Din was one of the victim's favorite uncles and they had a close, playful relationship. Thus, neither M.P. nor her mother had any reason to think M.P. was at risk if left alone with Din, and Din took advantage of that trust when he committed the charged offenses. (See People v. Dancer (1996) 45 Cal.App.4th 1677, 1695 (Dancer), disapproved on another ground by People v. Hammon (1997) 15 Cal.4th 1117, 1123; People v. Franklin (1994) 25 Cal.App.4th 328, 338 (Franklin).)
Din asserts the factor was not applicable as a matter of law because he was not entrusted with the care of M.P. but the cases he relies upon do not support this contention. The abuser in Dancer was a neighbor with a friendly relationship with the victim that committed "his offenses by exploiting the trust and confidence he had cultivated" with her and her mother, and the court in Franklin explained the abuser was "not merely a resident in the same house as [the victim], but also was a person in whom the victim reposed trust and confidence." (See Dancer, supra, 45 Cal.App.4th at pp. 1694-1695; Franklin, supra, 25 Cal.App.4th at p. 338.) Similarly, here, Din took advantage of the relationship he had developed with M.P. and the trust he had cultivated with her and her other family members.
Finally, Din asserts the court erred as a matter of law when it considered his lack of remorse. We agree with Din that the court should not consider lack of remorse as an aggravating factor where the defendant denies committing the crimes and the evidence of guilt is not overwhelming. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319; People v. Key (1984) 153 Cal.App.3d 888, 900.) Here, though, Din had previously admitted to touching M.P. in a lewd manner on at least two occasions, and only attempted to change his plea when he realized the likelihood the court would sentence him to a lengthy term in prison. Moreover, M.P. testified at the preliminary hearing and her story remained consistent with the initial report to her counselor and the police. As such, we are not convinced the superior court erred by considering Din's lack of remorse as an aggravating factor. Regardless, though, even if it had, the other factors it considered were sufficient on their own to support the sentence the court imposed.
Based on the foregoing, we conclude the superior court did not abuse its discretion in sentencing Din to a term of eight years in prison.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] Because Din entered a guilty plea prior to trial, the following summary of the factual background is taken from the plea agreement, the probation report, and the reporter's transcript of the preliminary hearing and sentencing.
[3] Because we conclude Din sufficiently preserved his arguments on appeal, we need not address his alternative argument that his arguments are reviewable in any event as pure questions of law. (See Sheena K, supra, 40 Cal.4th at pp. 887-889.)
[4] The plea agreement Din executed included both a Harvey waiver, allowing the court to consider the full factual background of the case, and a Blakely waiver, allowing the court to determine the existence of any fact in aggravation for sentencing.
