Filed 9/16/26 P. v. Jongewaard CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085975
v. (Super.Ct.No. RIF2301833)
RALPH TED JONGEWAARD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Timothy J. Hollenhorst,
Judge. Affirmed.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Daniel Rogers and Vincent P.
LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
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In bifurcated proceedings, a jury convicted defendant and appellant Ralph Ted
Jongewaard on five counts of committing lewd acts on a child under 14 years old, and the
trial court found true several aggravating factors. The court sentenced Jongewaard to 14
years in prison. Jongewaard’s only argument on appeal is that the court abused its
discretion in denying him probation by inferring lack of remorse from Jongewaard’s
decision not to speak to the probation department about the circumstances of his offenses.
We find Jongewaard has not shown the court made any such inference, so we affirm the
judgment.
I. FACTS
Jongewaard was tried and convicted on five counts of committing a lewd act on a
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child under 14 years of age (Pen. Code , § 288, subd. (a)). At a bifurcated hearing, the
trial court found true two alleged aggravating factors, that the victim was particularly
vulnerable (rule 4.421(a)(3)) and that Jongewaard took advantage of a position of trust in
committing the crime (rule 4.421(a)(11). The court sentenced Jongewaard to 14 years in
prison, consisting of the middle term of six years for count 1, plus 2 years (one third of
the middle term) for each of the remaining four counts.
At defense counsel’s request, the court ordered the probation department not to
speak about the facts of the case with Jongewaard in preparing its sentencing
recommendation. The probation officer’s analysis included the observation that during
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Undesignated statutory references are to the Penal Code. Undesignated rules
references are to the California Rules of Court.
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the probation interview Jongewaard “did not discuss the circumstances of the offense[s]”
so “his level of remorse, if any” was “unknown.” The probation officer further
commented that “during [Jongewaard’s] interview with law enforcement” during the
investigation of the victim’s allegations, before he was arrested and charged, he had
“portrayed [the victim] and her mother as liars, while continuing to deny the sexual abuse
allegations. This is not indicative of a remorseful person.” At sentencing, the court
confirmed it had reviewed the parties’ sentencing memorandums and the probation
officer’s sentencing recommendation.
The court denied Jongewaard’s request for felony probation in lieu of prison. The
court listed several factors it weighed in making this determination. It then spoke at
greater length about one factor in particular, lack of remorse:
“Another factor that the Court did consider in determining probation suitability
was the defendant’s lack of remorse.
“This is an issue that comes up before this Court often, and typically when
defendants are found guilty by a jury, defense attorneys request that their clients do not
speak with probation. And I understand the reason for that, it’s clearly the defense
attorney does not want their client to make any incriminating statements.
“The problem with that is the Court is never apprised of any level of remorse. I
think personally and professionally if a jury of someone’s peers finds them guilty, it
would be important for them to express some level of remorse. And the Court has not
heard any at all.
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“And I think that’s a disservice to the defendant because we don’t know, frankly,
know what his particular thoughts are on the matter. And, again, I understand the legal
reasons why the defense attorney does not want that to happen, but in terms of
sentencing, it is entirely unhelpful to the Court.
“So, as it stands, the defendant has not shown any remorse, and that is a factor that
this Court has determined to be quite substantive in this case.”
After this comment, the court concluded: “And for all those reasons on balance,
the factors supporting a denial of probation far outweigh the factors supporting a grant of
probation, and probation will, therefore, be denied.”
II. DISCUSSION
Jongewaard argues the trial court inferred lack of remorse from his silence about
the circumstances of his offense during his probation interview, and that this inference
violated his constitutional right to remain silent and maintain his innocence. We are not
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persuaded the trial court made such an inference.
“‘A denial or a grant of probation generally rests within the broad discretion of the
trial court and will not be disturbed on appeal except on a showing that the court
exercised its discretion in an arbitrary or capricious manner.’” (People v. Downey (2000)
82 Cal.App.4th 899, 909.)
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We acknowledge the parties’ disagreement about whether Jongewaard forfeited
the argument by failing to object. In the interest of judicial economy, as well as the
“strong public policy in favor of deciding cases on the merits when possible” (see Elkins
v. Superior Court (2007) 41 Cal.4th 1337, 1365), we exercise our discretion to decide the
issue on the merits and without addressing the parties’ forfeiture arguments.
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In the trial court’s selection of a sentence, “[l]ack of remorse is not specifically
designated as a relevant aggravating factor” in what is now rule 4.421, but “may be
applied to aggravate as an additional relevant factor” under what is now rule 4.408.
(People v. Key (1984) 153 Cal.App.3d 888, 900-901 (Key).) A defendant need not
confess to avoid an inference of lack of remorse being treated as an aggravating factor in
sentencing. People v. Coleman (1969) 71 Cal.2d 1159, 1168, overruled on another
ground by Garcia v. Superior Court (1997) 14 Cal.4th 953, 966, fn. 6 [in a capital case,
stating “[e]ven after he has been found guilty, a defendant is under no obligation to
confess, and he has a right to urge his possible innocence to the jury as a factor in
mitigation of penalty”].) The court may treat lack of remorse as an aggravating factor in
selecting a sentence either where the defendant has acknowledged guilt or the evidence of
guilt is overwhelming. (Key, supra, at pp. 900-901; People v. Holguin (1989) 213
Cal.App.3d 1308, 1319 [“Lack of remorse may be used as a factor to aggravate under
California Rules of Court, rule 408 [now rule 4.408] unless the defendant has denied guilt
and the evidence of guilt is conflicting”].) The reasoning underlying this rule is that
when the evidence of guilt is “not overwhelming” and the defendant “steadfastly denies”
the criminal conduct, lack of remorse does not necessarily show the defendant is likely to
repeat that criminal conduct. (Key, at p. 901.)
Rule 4.414 provides a non-exclusive list of criteria relevant to the trial court’s
decision to grant or deny probation. These criteria include “[w]hether the defendant is
remorseful.” (Rule 4.414(b)(7); see People v. Leung (1992) 5 Cal.App.4th 482, 507-508
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(Leung) [“Whether a defendant is remorseful is a proper consideration with respect to
probation”].) Some cases have extended the rule regarding whether lack of remorse may
be treated as an aggravating factor in sentence selection to the decision of whether to
grant probation. (See Leung, supra, at pp. 507-508 [citing People v. Holguin, stating:
“[l]ack of remorse is properly utilized as a reason for denying probation even when the
defendant does not admit his guilt where, such as in this case, the evidence of guilt is
overwhelming”]; but see People v. Shenouda (2015) 240 Cal.App.4th 358, 371-372
[finding Key not to be relevant where trial court considered lack of remorse “only as a
reason to deny probation” and not in selecting sentence].)
There is an important distinction, however, between (1) a negative inference
drawn solely from a defendant remaining silent or refusing to confess guilt, and (2) a
negative conclusion based on both what a defendant said and did not say when he spoke
about the crime. The Fifth Amendment prohibits any adverse inference from a
defendant’s silence, both at trial and at sentencing. (Mitchell v. United States (1999) 526
U.S. 314, 327-328.) But if the defendant does speak, it is no violation of the right to
remain silent for the trial court to consider both what the defendant said and did not say.
(See People v. Holt (1997) 15 Cal.4th 619, 691 [no violation for prosecutor to argue that a
defendant who had testified at guilt phase “‘has shown no remorse for the crime’”];
People v. Ghent (1987) 43 Cal.3d 739, 770-771 [no violation for prosecutor to tell the
jury that the defendant “‘hasn’t so much as told you he’s sorry’” when he testified at the
death penalty phase]; accord United States v. Rutledge (9th Cir. 1994) 28 F.3d 998, 1002
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[“[w]e hold that a defendant has the right to remain silent regarding relevant, uncharged
conduct; but, once he relinquishes that right and falsely denies such conduct, the district
court may weigh the false denial in considering a reduction for acceptance of
responsibility”].) In the latter situation, the defendant has demonstrated a lack of remorse
and never rectified it.
Accordingly, there is “a distinction . . . between punishing a defendant for
maintaining his innocence and preserving his right to appeal whether that punishment be
expressly or subtly imposed and merely considering a defendant’s failure to recant when
evaluating his prospects for rehabilitation without incarceration.” (United States v. Miller
(1st Cir. 1978) 589 F.2d 1117, 1138.) A defendant who either honestly or dishonestly
proclaims his innocence is unlikely to engage in efforts at rehabilitation premised on his
guilt.
Here, the trial court expressed both understanding and regret about Jongewaard’s
decision not to speak to the probation officer about the circumstances of his offenses. It
observed that Jongewaard had passed on an opportunity to affirmatively express remorse,
which if credited would weigh in favor of a grant of probation. But the court also
acknowledged Jongewaard’s constitutional right to remain silent, emphasizing that it
understood Jongewaard’s decision to remain silent was on the advice of counsel. We do
not discern in the trial court’s comments any inclination to infer lack of remorse from
Jongewaard’s silence, and we must infer the court was well aware it was not permitted to
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do so. (See People v. Thomas (2011) 52 Cal.4th 336, 361 [“In the absence of evidence
to the contrary, we presume that the court ‘knows and applies the correct statutory and
case law’”].)
Moreover, the trial court was entitled to discern remorse or lack thereof in
Jongewaard’s statements when he did choose to speak. Although he did not testify at trial
or speak to the probation officer about the circumstances of his offenses, he spoke to law
enforcement before his arrest. He chose to portray the victim and her mother as liars and
to deny the sexual abuse allegations. Jongewaard has not argued that the statements
themselves were obtained in violation of the Fifth Amendment. It was reasonable for the
trial court to agree with the probation officer that these comments were inconsistent with
remorse, without violating Jongewaard’s Fifth Amendment rights.
We find nothing arbitrary or capricious in the trial court’s conclusion that the
question of “[w]hether the defendant is remorseful” under rule 4.414(b)(7) should be
answered in the negative, so that factor weighed against a grant of probation. Because
Jongewaard fails to demonstrate that the court rested its remorse finding on his exercise
of his constitutional right against self-incrimination, we have no appropriate basis to
disturb the court’s finding on that factor specifically, or its ultimate decision to deny him
probation.
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We observe that a timely objection by Jongewaard’s trial counsel might have
prompted the trial court to elaborate on its reasoning, dispelling any arguable ambiguity.
We do not hold, however, that trial counsel was required to make such an objection or
that Jongewaard suffered any prejudice from the lack of one.
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III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
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J.
We concur:
MILLER
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Acting P. J.
FIELDS
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J.
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