NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
KIPP RAY FORD,
Defendant and Appellant.
| C081569
(Super. Ct. Nos. CM041930, CM042740, CM042741, CM043235)
|
On August 12, 2015, defendant Kipp Ray Ford resolved several cases brought against him by entering a negotiated plea. In case No. CM042740 (case 740), defendant entered a negotiated plea of no contest to writing a check greater than $950 with insufficient funds in his account (Pen. Code, § 476a, subd. (a); unless otherwise set forth statutory section references that follow are to the Penal Code; count 2) and admitted an on-bail enhancement (§ 12022.1) in exchange for dismissal of count 1 (check forgery), with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey). In case No. CM043235 (case 235), defendant pleaded no contest to stalking (§ 646.9, subd. (b); count 1) and admitted an on-bail enhancement. In case No. CM041930 (case 930), defendant entered a plea of no contest to forgery (§ 470, subd. (a); count 1) in exchange for dismissal of count 2 (passing a fraudulent check) with a Harvey waiver. In case No. CM042741 (case 741), defendant entered a plea of no contest to failing to appear (§ 1320, subd. (b); count 1) in exchange for dismissal of an on-bail enhancement with a Harvey waiver. In exchange for defendant’s plea in these four cases, several other cases were also dismissed with a Harvey waiver (case Nos. CM043323, CM043322, SCR102922, SCR100972, and CM043461).
The trial court denied probation and sentenced defendant to state prison for an aggregate term of 10 years.
Defendant appeals. He contends the trial court abused its discretion in denying probation. We reject this contention. Defendant also contends the trial court erred in imposing consecutive upper terms for the subordinate counts, even though it stayed all but one-third the midterm for each, and that the minute orders of sentencing must be corrected. The contention is moot. We affirm the judgment.
Facts and Proceedings
The facts are taken from the probation report as agreed by the parties and defendant.
- Case 930
In August 2014, Colin Smith advertised his used tractor online. Because defendant was interested in buying the tractor he called Smith and Smith said that he would only take cash. Defendant agreed. Defendant went to Smith’s home with a semi-truck operated by MGM Trucking to pick up the tractor. Defendant wanted to pay by check and offered $100 more for Smith’s “ ‘trouble.’ ” Smith agreed since defendant had an “ ‘official looking’ ” checkbook. Defendant wrote a check in the amount of $2,900, gave the check to Smith, and put the tractor on the semi-truck.
Following defendant’s instructions, MGM Trucking took the tractor to Chico Scrap Metal, Inc. where defendant sold it for $889.20. Defendant wrote a check to MGM Trucking in the amount of $446.25 for taking the tractor to Chico Scrap Metal.
The checks written to Smith and MGM Trucking were returned for insufficient funds. Smith called defendant a number of times and defendant promised to reimburse Smith but he failed to do so. Smith went to defendant’s family ranch and spoke with defendant’s father who said that defendant had embezzled money from him and was no longer welcome on the property. Defendant’s father confirmed that the check defendant had given Smith was from a closed account.
- Case 741
On October 29, 2014, defendant failed to appear in court for further arraignment in case 930.
- Case 740
On December 25, 2014, Aaron McAlister, the owner of California Bail Bonds, posted bail for defendant. Defendant wrote two checks, both in the amount of $10,000 to the bail bond company on the account belonging to his father’s business. Defendant told McAlister that one check would clear immediately but that he needed time to move money into the account for the second check. McAlister deposited the checks but was told the checks were fictitious. McAlister contacted defendant’s father who stated that defendant had stolen the checks and that there was insufficient funds in the account to cover the checks. When McAlister spoke with defendant, defendant promised to repay the money but he failed to do so.
- Case 235
In May 2015, defendant and his wife were separated. Defendant’s wife reported that during their 10-year marriage, defendant had physically assaulted her numerous times but she had been too afraid to report them. They had a daughter who is severely autistic and has noise sensitivity and who was receiving services from an autism clinic. Defendant’s wife allowed defendant supervised visits with their daughter during their separation. The visits occurred in public due to the prior domestic violence. During some visits, defendant used their daughter for leverage, threatening to tell the clinic that they did not live in the school’s jurisdiction thereby terminating the services to their daughter.
On May 7, 2015, defendant’s wife drove defendant from a restaurant to his trailer. He got out of the vehicle, refused to close the door, and threw a cup of soda in her face. He stood behind her vehicle, preventing her from leaving. Defendant yelled at his wife which upset their daughter who was in his wife’s vehicle. Defendant finally moved and his wife drove away.
On May 16, 2015, defendant’s wife served defendant with a domestic restraining order and divorce paperwork. The next day, defendant violated the order, texting his wife more than 20 times and calling her more than 40 times. In one text, defendant wrote: “ ‘I will find you. You better not be takeing [sic] my kid around you guys your [sic] f[------]. We are going to be nice or not. If you try and take [A.] away from me[,] I will kill you. If she can[’]t be with both of us then she won[’]t be with you either. You have one hour to call me back or I will start calling everyone in chico firsst [sic] thing [] n the morning if we don’t come up with plan. If I can[’]t see my kid the[n] you are not going to either.’ ” Defendant’s wife was afraid and reported the violation to the authorities.
On May 19, 2015, defendant’s wife talked to the police and reported defendant’s continued violations of the restraining order – he had called her over 100 times and texted her 157 times. She said the texts “vacillated between being apologetic to threatening,” and that defendant threatened to try and get her family members fired from their jobs.
On May 21, 2015, defendant parked behind his wife’s car while she was parked at their daughter’s school. She reached for the phone and he drove away. She called the police and drove towards the police station with defendant following. He texted her, saying, “ ‘you’re a cold b[----]. You don’t deserve [A.] I was going to give up but if you won[’]t talk to me I won[’]t. I will see my kid very soon.’ ” He called his wife 40 times. Defendant’s wife feared that defendant would kidnap her or their daughter from school. An officer interviewed defendant who denied driving by the school or calling his wife, claiming that she was trying to get him arrested.
On May 26, 2015, defendant’s wife reported that defendant was texting, calling, and following her as she was driving on Highway 99. When he started driving alongside her, she sped up but he did too. She feared he would run her off the road or cause a collision based on his prior threat to drive into oncoming traffic with her and their daughter in the car. An officer stopped defendant and arrested him. Defendant called his wife from jail.
The same day, defendant called his wife and threatened to ruin her brother’s wedding. When contacted by an officer, defendant denied calling or texting his wife. He claimed his phone had been stolen.
Later the same day, defendant texted his wife and appeared at the restaurant where the rehearsal dinner was taking place. Defendant sat at the bar and looked at her. When her mother approached defendant, he fled. When the wedding party left the restaurant, defendant followed one of the cars. The wife’s parents installed an iron gate around her property in an attempt to keep her safe.
When defendant’s wife returned home after her brother’s wedding, defendant called her 28 times and texted her 14 times. Defendant wrote, “ ‘I know you are not at your moms,’ ” and “ ‘I think me my friends going to go party with your family.’ ” Defendant’s wife did not feel safe.
On June 4, 2015, defendant texted his wife 13 times, called her 10 times, and left two voicemail messages. When she finally spoke with him, he claimed someone had stolen his phone.
On June 5, 2015, defendant texted his wife 30 times. She feared defendant would appear at their daughter’s graduation. He had made vague threats to harm her family. He wrote, “ ‘Remember this I know ever[y]thing you do or say there . . . I have eyes ever[y]where money buys alot of things. Even people in your family needs money more than they care about you. So watch what you say.’ ”
On June 10, 2015, defendant’s wife reported to police that she learned that defendant was driving back and forth past her house. When she was talking to an officer, defendant called her and the officer answered. Defendant later texted his wife, asking about her new boyfriend. That day, defendant’s wife had 48 missed calls from defendant on a private number. Defendant sent her text messages, accusing her of having a sexual relationship with another man; saying she “ ‘looked good’ ”; threatening to “ ‘blow [her] head off’ ”; saying that his wife was “what keeps [him] alive every day”; and he hated himself because she was all he thought about. When an officer contacted defendant, defendant claimed his phone had been stolen weeks before and accused his wife’s family of having the phone and trying to get him arrested. He could not explain why he had not cancelled service on his phone.
On June 18, 2015, defendant’s wife spoke to an investigating officer and said she had received 11 text messages and eight voicemail messages from defendant the previous evening. “Two of the voicemail messages consisted of the defendant singing to the victim. The content of the messages referenced wanting to give their daughter a kiss; that he would ‘be back’ on Sunday; that he drives around, all day, looking for [his wife], just to get a glimpse of her; he loves her and misses her; that he wanted to take her on a date to have one last dinner, so they could say goodbye; he expressed thanks for her and that she does not know what she meant to him; that he wanted to spend the rest of his life trying to get her back, no matter how long it took; he requested she call him; that he has nothing to lose anymore, as he has lost everything; he wanted to hold her and meet her, as he wanted to see her face before he gets ‘locked up,’ again; he wanted to know what he did; and that he wanted [her] to her grant him his last wish, which was to see her again.”
That day, defendant dropped off a red rose, a card, and a ring with an insignia of brass knuckles at his daughter’s school, asking the teacher to pass the items to his wife. The teacher, aware of the restraining order, told an officer that the school had had problems with defendant over the previous year and that he had been asked to leave on one occasion. Defendant’s wife told the officer that she received the items. While speaking to the officer, defendant called his wife and, when the officer answered her phone, defendant hung up.
While in custody, defendant asked his mother to contact his wife and ask her to “ ‘drop the charges.’ ” Defendant’s mother replied she would not do so.
- Case SCR-100972 (dismissed with Harvey waiver)
Between August 8, 2014 and August 13, 2014, defendant wrote eight checks to Sav Mor for a total of $476.42 on a closed account. Defendant told a store employee that he did not know the account had been closed, noting he was going through a divorce. Defendant told an officer that he did not know of any problems with his account but claimed his belongings had been stolen.
- Case CM043322 (dismissed with Harvey waiver)
On February 14, 2015, defendant wrote a check to Wishing Corner for $257.63 on a closed account. On March 9, 2015, defendant wrote a check to 99 Smog and Tune Up for $355.98 on the same closed account. Defendant told an officer his wife had placed checks from a closed account in his checkbook. On April 23, 2015, defendant wrote a check to Gridley Veterinary Clinic for $344.47 on a closed account.
- Case SCR102922 (dismissed with Harvey waiver)
On May 7, 2015, defendant threw a cup at his wife’s face. She was not injured. He was charged with misdemeanor battery.
- Case CM043323 (dismissed with Harvey waiver)
On July 3, 2015, defendant left a bag of fireworks, a card with his handwriting, and a $100 check for his daughter at the house of his wife’s parents, violating the restraining order. After the bag was discovered, defendant called his wife two times, the first time she hung up on him and the second she recorded.
On July 22, 2015, Bradley Fowler reported to a deputy sheriff that defendant wrote a check to McMains Bail Bonds in the amount of $50,000 on a nonexistent account. Initially, defendant told Fowler that his wife had frozen the account. Later, defendant claimed there was a mistake since he had sufficient funds in the account.
I
Probation
Defendant contends the trial court abused its discretion in denying him probation. We disagree.
In its report, the probation department recommended that probation be denied and that the court impose the upper term. With respect to the stalking offense, the probation officer noted the number of contacts and attempted contacts which made the offense more egregious when compared to instances of the same offense. Defendant’s wife, who lived in a constant state of fear, was considered to be vulnerable and defendant had caused significant emotional injury. With respect to the financial crimes, the probation officer noted the significant monetary loss to the victims whose number indicated a pattern of regular and increasingly serious criminal conduct by defendant. Defendant’s prior performance on probation was viewed as unsatisfactory and he did not display remorse for his actions. “[D]isturbingly [he] placed the blame on [his wife] for his financial cases and appears to hold delusional thoughts about [his wife] in that she stole his cell phone so that she could get him in trouble.” Based on defendant’s stalking, his disregard of the restraining order, his threat to kill his wife, and his belief she caused his problems, the probation officer opined that defendant posed a “significant threat if he is not imprisoned.”
At sentencing on September 9, 2015, defense counsel requested a continuance to file a statement in mitigation, stating that defendant would be seeking a grant of probation. The judge granted the continuance, stating he was “open to a possible grant of probation, but I did want some sort of medical and/or psychological support for that primarily as it relates to the safety issue, and so far I haven’t seen it.”
On October 7, 2015, defense counsel requested another continuance, stating that a mental health evaluation had not been completed because of a delay in securing funding. Defense counsel also asked whether the court would grant probation without an evaluation. The court stated it would not grant probation without the benefit of an evaluation. The prosecutor opposed a continuance because defendant had already received a continuance and based on his offenses, it was unlikely he would obtain funding. The court granted a three-week continuance.
On October 27, 2015, defendant submitted a document entitled, “Brief Report of Psycho-Social Evaluation and Treatment Recommendations” authored by a licensed marriage and family therapist, Mark Balen. Balen reported that he met with defense counsel, reviewed the probation report, and conducted an in-person evaluation of defendant. Balen stated defendant was moderately depressed. Defendant claimed his threats to the victim were made in anger and frustration and that he did not have an intent to harm her or himself. Defendant recognized that he needed to pay his debts to restore a sense of self-worth. Balen recommended individual or group therapy, focusing on impulse control. Balen did not opine on defendant’s future dangerousness or suitability for probation.
On October 28, 2015, the court stated that Balen’s report did not “adequately address[] the concerns raised by the behavior in this particular case.” The court referred the matter for a diagnostic evaluation.
The diagnostic report filed January 13, 2016, included a counseling evaluation and a psychological evaluation. The counseling evaluation was prefaced with a statement of the objective of a diagnostic study, that is, “the objective of assessing [defendant’s] potential for functioning successfully on probation or under other supervision and the threat to the community should he fail to live up to that potential.” After reviewing the facts of the case and other factors, the counselor recommended a state prison sentence, noting defendant’s lack of remorse: “[Defendant] stated he had received a restraining order and divorce papers on the same day causing a mental breakdown. He state[s] he just wants to get back to his family. He claims he wants his freedom. He feels his offense was caused due to his wife’s actions.” Defendant reported to the counselor that if granted probation, he planned to live with his wife, take care of his family and work at his family’s business. The counselor recommended a state prison sentence, opining that defendant was considered “a moderate risk to society.”
The psychologist recommended that the court deny probation and incarcerate defendant. The psychologist set forth a checklist of 23 “psychological factors for or against probation,” prefacing the checklist with the following statement: “Please note that it is not the preponderance of factors that is decisive, but simply that each finding contributes to the overall decision whether or not to grant probation in the manner shown.” Eleven factors weighed against probation and 12 favored probation. The psychologist’s diagnostic impression was that defendant suffered from Antisocial Personality Disorder. The psychologist concluded that defendant presented a “moderate risk to the community should probation be granted.” Based on the counseling and psychological evaluations, the Associate Warden recommended incarceration.
In the probation interview after the diagnostic study, defendant disputed telling the counselor that he planned to reside with his wife if granted probation, claiming he has no plans to reconcile but did “not discount them possibly reuniting ‘10-15 years, down the line.’ ” Based on the diagnostic study and probation’s interview of defendant, probation affirmed its recommendation that probation be denied.
At sentencing on February 10, 2016, the court said it planned to impose the recommended 10-year state prison sentence. The court then heard the parties’ arguments. Defendant’s mother spoke as did defendant. Defendant admitted having had contact with his wife while he was undergoing the diagnostic study. In denying probation, the court stated:
“The nature, seriousness and circumstances of these crimes, as compared to other instances of the same crimes. The defendant inflicted emotional injury. There was a rather large degree of monetary loss to the victims of the financial crimes.
“The defendant clearly was an active participant. His prior record of criminal conduct. His prior performance on probation was unsatisfactory. Court feels there is a very strong doubt regarding his ability to comply with terms of probation, given the numerous restraining order violations.
“And there is a strong likelihood that if not in prison, the defendant will be a danger to others. The court would note that any one of the reasons stated for denying probation would, standing along, be sufficient reason to justify and warrant the denial of probation in these matters.”
“The trial court enjoys broad discretion in determining whether a defendant is suitable for probation. [Citations.]” (People v. Lai (2006) 138 Cal.App.4th 1227, 1256.) “To establish abuse, the defendant must show that, under the circumstances, the denial of probation was arbitrary or capricious. [Citations.] A decision denying probation will be reversed only on a showing of abuse of discretion. [Citation.]” (Id. at p. 1257.) “ ‘Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 379.)
Defendant’s abuse-of-discretion argument focuses on the diagnostic study which found 12 psychological factors in favor of a grant of probation and 11 factors against a grant of probation and concluded that defendant presented a moderate risk of danger to others if not in prison. Defendant argues he presented “only” a moderate risk. Defendant claims the trial court failed to mention his background which included an education, limited criminal history, gainful employment, and a devastating divorce, suggesting he was a strong candidate for probation, and that his acts were an anomaly. Defendant argues the trial court’s conclusion that there was a strong likelihood that defendant would be a danger to others shows that the court failed to consider all the facts and circumstances of the case. But it is defendant who has failed to consider all the relevant facts and circumstances.
Defendant’s contention that the trial court abused its discretion in denying probation is forfeited for failure to recount the relevant facts due to defendant’s failure to recount all the facts relevant to the trial court’s decision. (Cal. Rules of Court, rules 8.360, 8.204(a)(2)(C) [opening brief must provide “a summary of the significant facts” (italics added)].) While the People’s brief sets forth nine pages of the facts underlying defendant’s offenses and more than four more pages discussing the probation officer’s report, the diagnostic study, and the supplemental probation report, defendant’s opening brief provides a scant outline, barely three pages, of the facts underlying the offenses, and about two pages discussing the reports relevant to sentencing. And it is no wonder. The facts weighing against defendant’s suitability for probation were overwhelming.
Probation, the associate warden, the counselor, and the psychologist all recommended that probation be denied. Defendant’s unrelenting harassment of his wife, reflecting an outright refusal to comply with the domestic violence restraining order, demonstrated there was a strong likelihood he would not comply with probation conditions and represented a substantial danger to society. He also represented a danger to society in having committed his numerous financial crimes, without a break, even after he was charged with those crimes, all the while blaming his wife. Defendant ignores the note for the psychological checklist – it was not a preponderance of factors that was decisive. The trial court considered all the facts and circumstances of the case. We reject defendant’s contention. The trial court certainly did not abuse its discretion in denying probation.
II
Imposition of the Upper Term
The trial court imposed the upper term of four years for stalking (§ 646.9, subd. (b); count 1; case 235) as the principal term and a consecutive upper term with all but one-third the midterm stayed for the remaining offenses (§ 476a, subd. (a) (count 2, case 740); § 1320, subd. (b) (count 1, case 741); § 470, subd. (a) (count 1, case 930)). The court also imposed consecutive two-year terms for each of the two on-bail enhancements.
Defendant contends the trial court erred to the extent it imposed the upper term for the subordinate terms since section 1170.1 requires that the subordinate term for each consecutive offense must be one-third the midterm. As defendant notes in the opening brief, even though the abstract of judgment correctly reflects one-third the midterm for each subordinate offense, he argues the minute orders of sentencing require modification.
Unless an exception applies, when a trial court imposes consecutive term sentences, section 1170.1, subdivision (a), requires the court to impose one-third the middle term for each subordinate term. Imposing upper term sentences for the subordinate terms was improper. (People v. Felix (2000) 22 Cal.4th 651, 655 [“in general (there are exceptions), the court imposes only ‘one-third of the middle term’ for subordinate terms”].) There is no provision in law authorizing the court to impose a full-term sentence and then stay all but one-third the midterm.
In a subsequent letter to this court, defense appellate counsel states that the issue is moot because the trial court amended the minute order to reflect one-third the midterm for the subordinate offenses. The People respond that the issue has been corrected.
Although defendant’s contention is moot, we note that the abstract requires correction. Although the abstract properly indicates an eight-month term was imposed on the three subordinate terms and also properly indicates that the term imposed is “1/3 consecutive,” nothing appears in the box designated for the triad term. An “M” for “midterm” should appear in that box.
Disposition
The trial court is directed to prepare a corrected abstract of judgment to reflect “M” for “midterm” in the box designated for the triad term and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.
HULL , Acting P. J.
We concur:
MAURO , J.
DUARTE , J.
