P. v. Kim

Filed 6/26/08 P. v. Kim CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from judgments of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Judgments affirmed.

Bucklin Law Firm and Stephen L. Bucklin, under appointment by the Court of Appeal, for Defendant and Appellant, Kyu Sik Kim; Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant, Jun H. Kim.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________

Defendants and appellants Kyu Sik Kim and Jun Hwan Kim appeal from the sentences imposed following their convictions of kidnapping and other offenses. Specifically, they contend the trial court erred in denying them probation and sentencing them to prison. We conclude the trial court did not abuse its discretion and therefore affirm. Appellants also contend the court erred in calculating their presentence credit; the prosecution concedes the error, and contends the court erred in omitting certain concurrent sentences from the abstracts of judgment. We agree with both contentions, and direct that the abstracts of judgment be modified.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a dispute between two families: the Kims and the Lees. On December 13, 2005, a property dispute, which was then scheduled for arbitration, turned violent, with the Kims assaulting the Lees. Three members of the Kim family were prosecuted for the events of that day: (1) the patriarch, defendant and appellant Kyu Sik Kim (defendant father); (2) his wife, codefendant Yoon Hee Kim (codefendant mother); and (3) their 21-year-old son, defendant Jun Hwan Kim (defendant son). The victims of the crimes are Harry Lee (Mr. Lee) and his wife, In Sook Lee (Mrs. Lee).

The Lees owned a commercial property in Azusa, which they were renting to the Kim family. The Kim family operated an art studio and warehouse in the building, and also used it as a residence.^[1] Pursuant to the lease agreement, the Kims were to be granted a right of first refusal if the Lees chose to sell the property; the Kims interpreted this term as an option to buy the property at a particular price. In April 2005, the Kims brought suit against the Lees, apparently seeking the right to purchase the property. In December 2005, the case was still pending; an arbitration had been scheduled for April 2006.

Prior to the date of the arbitration, however, the Kims lease expired and the Lees sought to evict them from the premises. The Kims asked for, and received, an extension of time in which to vacate the building. It was agreed that the Kims would vacate by 5:00 p.m. on December 13, 2005. At that time, the Kims would return the key to the Lees. The Kims had further agreed that if there was any of their property remaining in the building at that time, the Lees could throw it away.

At 5:05 p.m., the Lees arrived at the property. Mrs. Lee, who was driving, dropped Mr. Lee off at the door. Mr. Lee went inside to obtain the key. Mr. Lee first saw codefendant mother and asked for the key. Defendant father approached and gave Mr. Lee the key. Mr. Lee began walking through the building and noticed a substantial amount of the Kims property remaining in the building. He took photographs to document the property left behind. Mr. Lee offered defendant father further time to remove his property from the building. Defendant father responded that he had no place to go.

Without warning, defendant son tackled Mr. Lee from behind, butting his head against Mr. Lees back. Mr. Lee hit the floor and felt a slight concussion. While Mr. Lee attempted to get back up, defendant father cursed at Mr. Lee and told him that he (defendant father) would kill him (Mr. Lee) that night. Defendant father jumped on Mr. Lees chest. While defendant father had Mr. Lee pinned in that manner, defendant son obtained something possibly bungee cords with which to bind Mr. Lee. Then, while defendant father remained on Mr. Lees chest, defendant son sat on Mr. Lees legs, and together they bound his wrists and ankles.

Mr. Lee remained a captive in the warehouse for between one and a half and two hours. While the precise order of events is unclear, the following occurred during this time: (1) defendants tried to push a sharp object in Mr. Lees mouth, causing injuries when Mr. Lee resisted; (2) defendant father choked Mr. Lee around the neck, so tightly that he could not breathe; (3) when Mr. Lee was on the ground, defendant son kicked him in the ribs; (4) when Mr. Lee was on the ground, defendant father punched him in the face and chest; (5) defendant father and defendant son together dragged Mr. Lee to different locations in the building; (6) when Mr. Lee screamed, defendant father put duct tape over his mouth; (7) a knit cap was pulled down over Mr. Lees face, and duct tape was wrapped around his neck to secure the cap; (8) Mr. Lee was dragged into a room containing a large paper cutter; defendants tried to pull Mr. Lees hand into the paper cutter to cut off his hand; (9) defendant father told Mr. Lee that he was going to kill Mr. Lee slowly and that he did not want to kill Mr. Lee right away; and (10) defendant son took Mr. Lees wallet, papers, cash, camera, and keys, and threw them all on the floor.

After Mrs. Lee had dropped Mr. Lee at the property, she parked the car. As Mr. Lee did not return immediately, Mrs. Lee went into the building. She was stopped at the door by codefendant mother, who engaged her in meaningless chatter. Then codefendant mother said, You need to go in and see, all right. Mrs. Lee entered the building with codefendant mother. Codefendant mother called for defendant son. Defendant son appeared, grabbed Mrs. Lee by the arms, and kicked out her legs from under her so that she fell to the ground. Codefendant mother then grabbed Mrs. Lee by the hair and tried to pound Mrs. Lees head on the concrete floor. She also hit Mrs. Lee repeatedly on her back. Codefendant mother said, You bitch. Are you going to run us out? Defendant son disappeared (presumably to return his attention to Mr. Lee), and the two women struggled. Mrs. Lee reached for her cell phone to call 911; codefendant mother hit it out of her hand. Defendant son reappeared and kicked Mrs. Lee to the ground again. Defendant son tied Mrs. Lees hands behind her back, with the assistance of codefendant mother. Mrs. Lee was tied to a chair with bungee cord; a sweater was used to tie her hands behind her back. Defendant son left again and returned. He kicked Mrs. Lees chair, forcing her forward and causing her to hit her chest on a nearby desk. At one point, Mrs. Lee asked to see her husband. She offered to sign a document regarding the property. Defendant father and defendant son dragged Mr. Lee, who was then bound, into Mrs. Lees view. Mrs. Lee heard them say that they were going to cut off Mr. Lees hand. Mr. Lee was eventually dragged from the room.

Defendants continued their attack on Mr. Lee. They loaded Mr. Lee into the back of a van, which was immediately driven off. In the van, defendant father sat on Mr. Lees chest while defendant son sat on his legs.^[2] After approximately thirty minutes, the van stopped and the door was opened. Defendant son cut the duct tape around Mr. Lees neck, removed the knit cap, and removed the duct tape from his mouth. Defendant father said, Im going to let you go this time. Next time I will kill you for sure. The defendants pushed Mr. Lee from the van, leaving him in the middle of the street, in Pomona. Mr. Lee obtained help from someone passing by; police were called.

Mrs. Lee had been left alone in the building. She managed to free her hands and escape. She ran to a nearby apartment and the police were called.

Mr. Lee sustained visible injuries to his mouth, wrists, and knees. His head was swollen with bruising, and there were cuts on his head and wrists. His wrists had been tied so tightly, marks were still visible at the time of trial, in August 2006. There were blood stains on his jacket and undershirt. A stain on the seat of his pants was likely dirt from having been dragged. Mrs. Lee had bruises and swelling on her forearms; she had scars on her elbows which were still visible at the time of trial. She had dried blood on her face, covering scratches.

Defendant father, defendant son, and codefendant mother were charged by seconded amended information with: (1) the kidnapping of Mr. and Mrs. Lee (Pen. Code,  207, subd. (a)); (2) the assault by force likely to cause great bodily injury of Mr. and Mrs. Lee (Pen. Code, 245, subd. (a)(1)); (3) the false imprisonment of Mr. and Mrs. Lee (Pen. Code,  236); and (4) the dissuading a witness by threat of force or violence (Pen. Code,  136.1, subd. (c)(1)) of Mrs. Lee. All three members of the Kim family were charged with each offense; the prosecution proceeded to trial on theories of aiding and abetting and conspiracy.

Defendant son and codefendant mother testified in their defense. Defendant son testified that when he entered the building, he saw his father and Mr. Lee fighting; defendant fathers nose was bleeding. According to defendant son, he tackled Mr. Lee in order to get him off defendant father and to stop the fight. After defendant son successfully separated the men, they began talking. Later, Mr. Lee asked defendant son to drive him and defendant father to Mr. Lees house. Defendant son agreed, and drove the van with the two men in back. While defendant son was driving, the two men began fighting again. Defendant son stopped the van and asked what they were doing. Mr. Lee said to just drop him off there, and left the van. Defendant son testified that he did not see Mrs. Lee all afternoon.

Codefendant mother testified that she had a physical altercation with Mrs. Lee, which Mrs. Lee had initiated. According to codefendant mother, both Mr. and Mrs. Lee eventually wanted to talk about their property dispute, and Mr. Lee suggested they go to his house to do so. Defendant father left with Mr. Lee; codefendant mother was to go with Mrs. Lee in Mrs. Lees car. After codefendant mother found her shoes, which she had lost in the fight, she looked for Mrs. Lee, and could not find her.

The jury found defendant father guilty of kidnapping Mr. Lee and the lesser offense of misdemeanor assault (Pen. Code, 240) of Mr. Lee. The jury found defendant son guilty of kidnapping Mr. Lee, and the lesser offense of misdemeanor assault of Mr. Lee. Additionally, defendant son was found guilty of the lesser offenses of misdemeanor assault of Mrs. Lee, and misdemeanor false imprisonment of Mrs. Lee. The jury found codefendant mother guilty of the lesser offenses of misdemeanor assault and misdemeanor false imprisonment of Mrs. Lee. The jury found the defendants and codefendant not guilty of all other charges.

Prior to sentencing, defendants father and son submitted sentencing memoranda, arguing for probation. They submitted a substantial quantity of letters of support, including petitions with more than 50 pages of signatures on their behalf.

Codefendant mother received a sentence of probation; she does not appeal. Defendant father and son each were sentenced to the middle term five years in prison for the kidnapping, with concurrent six month terms for each misdemeanor conviction. They were given 37 days of actual presentence credit, plus an additional five days of conduct credit. Defendants father and son filed timely notices of appeal.

ISSUES ON APPEAL

The main issue on appeal is whether the trial court abused its discretion in sentencing defendants father and son to prison. Additionally, we consider defendants contention that their presentence credit was improperly calculated, and the prosecutions contention that the abstracts of judgment do not properly reflect the concurrent terms for the misdemeanor convictions.

1. The Trial Court Did Not Abuse Its Discretion

 The grant or denial of probation is within the trial courts discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.] [Citation.] In reviewing [a trial courts determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial courts order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. [Citation.] (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)

California Rules of Court, rule 4.414 sets forth [c]riteria affecting the decision to grant or deny probation, separating those criteria into facts relating to the crime and facts relating to the defendant.^[3] The trial court has broad discretion in evaluating the factors in aggravation and mitigation in making the determination of whether the defendant is suitable for probation. (People v. Lai (2006) 138 Cal.App.4th 1227, 1256.) [E]ven if there were several mitigating factors that might weigh in favor of probation, this does not necessarily mean that the trial court abused its discretion in deciding against granting probation. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530‑1531.)

When a trial court chooses to impose a prison sentence and thereby deny probation, the judge is required to give reasons for that choice. The judge must state in simple language the primary factor or factors that support the exercise of discretion. (Cal. Rules of Court, rule 4.406.) It is mandatory that a trial court consider the criteria enumerated in California Rules of Court, rule 4.414. (Cal. Rules of Court, rule 4.409.) However, the court need not expressly state its consideration of each factor, and the court will be deemed to have considered those factors unless the record affirmatively reflects otherwise. (Ibid.) Moreover, if the trial court expressly states that it has considered the defendants sentencing memorandum, and that memorandum discusses particular sentencing criteria, we presume the court considered the criteria addressed in the memorandum. (People v. Weaver, supra, 149 Cal.App.4th 1301, 1317-1318.)

When viewed against this standard, it is apparent the trial court did not abuse its discretion. The court expressly indicated that it reviewed the sentencing memoranda from both defendants, including the numerous letters of support and the petitions. In choosing to deny probation to defendants, the court acknowledged the existence of several mitigating factors, including defendant sons age and lack of record, and defendant fathers relative absence of a record.^[4] Nonetheless, the court determined that defendants were unsuitable for probation, due to the seriousness of the offense. (See Cal. Rules of Court, rule 4.414(a)(1) [factors to consider include [t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime].) The court concluded that both defendants committed a series of events that constituted violent conduct that would be, and impose, a serious danger to society. Recognizing that Mr. Lee was not the victim of a momentary lapse of control on the part of defendants, but a two hour ordeal, in which he was beaten, bound, choked, threatened with the loss of his hand, threatened with a slow death, transported, and ultimately dumped in the street, we have no difficulty in concluding that the circumstances of this crime were substantially more serious than other instances of kidnapping, justifying a prison term.

On appeal, both defendant father and defendant son suggest the trial court erred by considering against them factors which applied only to the other defendant. For example, defendant son notes that the court relied on the fact that Mr. Lee had been threatened with death, but Mr. Lee testified that only defendant father had made such threats.^[5] It is apparent, however, that the trial court did not conclude that any single act of one defendant determinative of the decision to deny probation, but rather considered the totality of the acts the two men committed jointly. While it is true that only defendant father threatened Mr. Lee with death, he did so only after defendant son had surprised Mr. Lee by attacking him from behind and forcing him to the floor. Clearly, defendant fathers threat of death was more frightening and believable because it was supported by defendant sons attack.

Defendant father and defendant son also rely on several factors in mitigation, arguing that they should result in a probationary sentence. Defendants are, in effect, asking us to reweigh the factors. It is apparent that the trial court reviewed the sentencing memoranda, in which defendants raised and discussed each factor.^[6] That the court concluded the seriousness of the offense outweighed these mitigating factors does not constitute an abuse of discretion.^[7]

One further argument of defendant son requires mention. Defendant son suggests that his conduct was partially excusable because he was simply obeying his father, as is required by his (Korean) culture. While it is somewhat dubious to suggest the violent criminal conduct of a 21-year-old is somewhat less culpable because he was simply doing what he was told, we note that, in this case, there is simply no evidence to support the proposition. Defendant son never testified that he kidnapped and assaulted Mr. Lee because his father told him to; he testified only that he broke up the fight between defendant father and Mr. Lee on his own initiative, and that he gave Mr. Lee a ride at Mr. Lees request.

In sum, defendants suggest that their crimes were simply a one-time-only lapse in their otherwise law-abiding lives as productive citizens, and that the circumstances warranted only probation. The trial court disagreed, concluding that the defendants decision to respond to a simple civil dispute by taking the law into their own hands and violently attacking their landlord for over two hours mandated a prison term. This was not an abuse of discretion.

2. Presentence Credit Was Improperly Calculated

At the sentencing hearing, counsel for defendant father and defendant son indicated that defendants spent 37 days in custody. The court awarded 37 days actual credit and 5 days conduct credit. (Pen. Code, 2933.1) On appeal, defendants have augmented the record with documents indicating they have actually spent 41 days in presentence custody, which would entitle them to 6 days conduct credit. The prosecution concedes the error. We will therefore direct that the abstracts of judgment be modified to reflect the additional presentence credit.

3. Abstracts of Judgment Omit Concurrent Terms

In addition to the prison term imposed on each defendant for the kidnapping, defendant father received one concurrent six-month term for his misdemeanor conviction, while defendant son received three such concurrent terms for his three misdemeanor convictions. The abstracts of judgment fail to indicate these terms. We will therefore direct that the abstracts of judgment be modified to reflect the concurrent sentences.

DISPOSITION

The abstract of judgment of defendant father is to be corrected by the clerk of the superior court to reflect a concurrent six-month term for the crime of assault, and presentence credit of 47 days, consisting of 41 actual days and 6 days of conduct credit. The abstract of judgment of defendant son is to be corrected by the clerk of the superior court to reflect three concurrent six-month terms (for two convictions of assault and one conviction of misdemeanor false imprisonment), and presentence credit of 47 days, consisting of 41 actual days and 6 days of conduct credit. The clerk of the superior court is directed to forward the corrected abstracts of judgment to the Department of Corrections. In all other respects, the judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] The lease prohibited using the property as a residence.

^[2] No evidence was presented by the prosecution as to who was driving the van. As Mrs. Lee was left alone in the warehouse, it is possible that codefendant mother drove the van.

^[3] California Rules of Court, rule 4.414 provides, Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. (a) Facts relating to the crime Facts relating to the crime include: (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; (2) Whether the defendant was armed with or used a weapon; (3) The vulnerability of the victim; (4) Whether the defendant inflicted physical or emotional injury; (5) The degree of monetary loss to the victim; (6) Whether the defendant was an active or a passive participant; (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime. (b) Facts relating to the defendant Facts relating to the defendant include: (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; (2) Prior performance on probation or parole and present probation or parole status; (3) Willingness to comply with the terms of probation; (4) Ability to comply with reasonable terms of probation as indicated by the defendants age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; (5) The likely effect of imprisonment on the defendant and his or her dependents; (6) The adverse collateral consequences on the defendants life resulting from the felony conviction; (7) Whether the defendant is remorseful; and (8) The likelihood that if not imprisoned the defendant will be a danger to others.

^[4] Defendant father had two misdemeanor convictions in 1995, for indecent exposure (Pen. Code, 314, subd. 1) and solicitation of a lewd act (Pen. Code, 647, subd. (a)).

^[5] Defendant father does not specifically identify any specific factors used which pertained only to defendant son, but states only that many of the facts cited by the trial court related to [defendant son] not [defendant father]. He also states that he did not actively participate in the incident, a statement which is wholly baseless, given Mr. Lees testimony that defendant father sat on his chest, choked him, punched him, threatened him with death, and took part in binding and dragging him.

^[6] Defendant son suggests that since the court only itemized a few factors and then stated that it was relying on all of these factors, the court must have failed to consider any mitigating factors not enumerated. The conclusion simply does not follow, especially when the court expressly indicated having before it the sentencing memoranda and supporting letters and petitions of both defendants. Indeed, the court even acknowledged several instances in which defendant fathers sentencing memorandum correctly pointed out statements in the (pre‑conviction) probation report that could not be considered, in light of the jurys verdicts.

^[7] In passing, defendant son notes that the court declined to hear from individuals who wanted to speak on defendant sons behalf at the sentencing hearing. At the hearing, when defendant sons counsel asked that the individuals be heard, the court asked counsel for the legal basis for the request. Defendant son offered no legal basis for the request, asking only that the court exercise its discretion to hear the individuals. The court declined to do so, in light of the number of character submissions that have been filed with the court, and the absence of authority, either statutory or case authority. On appeal, defendant son fails to offer any authority for the proposition that the refusal to hear these individuals on his behalf constituted error.