P. v. Ilsung

Filed 12/31/09 P. v. Ilsung CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

A jury convicted defendant Victory Ilsung of attempted murder with premeditation (Pen. Code,  664/187; subsequent undesignated statutory references are to the Penal Code), mayhem ( 203), corporal injury to a former cohabitant resulting in a traumatic condition ( 273.5, subd. (a)), battery on a person he had been dating ( 243, subd. (e)(1)), and assault ( 240), while sustaining allegations of great bodily injury ( 12022.7, subd. (e)), personal use of a weapon ( 12022, subd. (b)(1)), and a prior strike ( 667, subds. (a), (b)-(i)). The court sentenced defendant to 24 years to life in prison. On appeal, we reversed the conviction, finding the trial court violated defendants due process right to represent himself at trial (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta)).

On retrial, the jury convicted defendant of attempted murder with premeditation, mayhem, corporal injury to a former cohabitant resulting in a traumatic condition, and battery on a person he had been dating, and sustained the great bodily injury and personal use of a weapon allegations. Defendant admitted the strike allegation, and the court sentenced him to 25 years to life.

On appeal, defendant argues the courts comments to the jury penalized him for invoking his Faretta right, he was not allowed to question the jury on voir dire, his sentence violates the prohibition against double jeopardy, and the restitution hearing violated his due process rights. We shall modify the sentence and affirm the judgment as modified.

BACKGROUND

In July 2004, defendant and his cohabitant, his former girlfriend Kelly Zickefoose, got into an argument in their apartment because defendant thought she was sleeping with another man. When Zickefoose told defendant she had not slept with anyone else but wanted to, defendant jumped on top of Zickefoose and began to choke her. She begged him to stop, but defendant said this has to be done. Losing consciousness for a moment, Zickefoose banged on the wall and reached for a nearby lamp when she regained lucidity. Zickefoose then got out from under defendant and ran to the apartments door. Defendant was able to push her off the door, which he then closed and locked.

Zickefoose ran towards the kitchen and grabbed an unopened wine bottle. She tried to hit defendant with the bottle, but it was too heavy, so defendant grabbed the bottle and pushed Zickefoose back into the kitchen. Defendant next got on top of Zickefoose, sat over her, and took a knife from a kitchen drawer. He repeatedly stabbed Zickefoose in the head as she tried to defend herself with her hands. Defendant eventually dropped the knife, jumped up, grabbed her keys, and left.

As a result of the attack, Zickefoose sustained a broken bone below the right eye and numerous stab wounds to the hands, face, neck, and scalp. She sustained nerve damage causing her to lose feeling in her right thumb, and partial paralysis and numbness to the left side of her face. She also developed a condition known as synkinesis, where nerve damage causes the remaining nerves to overreact, inhibiting her ability to smile.

Zoe Kinney, another former girlfriend of defendant, testified regarding an attack by him in October 1995. Defendant was angry with Kinney because she had been seeing another man. He made threatening calls, and had threatened to kill her.

Defendant called and asked Kinney to come over to his apartment and talk to him. She went to his apartment, where defendant produced a sawed off shotgun and said, [t]he reason that I wanted you to come here this evening was to assassinate you and then kill myself. He held her until the next morning, when she managed to escape. Defendant shot at Kinney as she fled, grazing her shoulder and ruining her sweater.

DISCUSSION

I

Defendant exercised his right to represent himself at trial. During jury selection, the court gave the following instruction to the jury on defendants self-representation:

Now I am going to talk a little bit about counsel in this case. [] You may, as I was reading the charges to you, have heard these charges and felt these are serious charges, and you are also now aware, as I indicated, that the Defendant is representing himself. [] So I want to talk about that a little bit with you so you will understand: [] The law says every person has an absolute, Constitutional right to represent themselves. That is an absolute Constitutional right. And it doesnt matter whether they have only attained a third grade education or whether they have a law degree. It doesnt matter whether they are qualified or not qualified. The law simply says if you choose to exercise that Constitutional right, as a trial judge, and all trial judges, we must accord the person that Constitutional right. [] Okay, In this case Mr. Ilsung is aware of that, and I, in fact, went over a document where I indicated to him that he had a right to be represented by an attorney at all stages of the case. If he could not afford one, the Court could appoint one to represent him. [] So he is aware that he has a right to an attorney who is qualified for this degree of crime to represent him. Hes gone over that in writing and has been notified of it verbally. Mr. Ilsung was advised that it is generally not a wise choice to represent yourself in a criminal matter. He was advised that the Court cannot help him present the case or grant him any special treatment, that he would be opposed by someone who is a trained prosecutor, that he must comply with all rules of criminal procedure and evidence just as any attorney and that he could not be disruptive and that he would have to follow the Rules of Court. [] And Mr. Ilsung and I had a conversation, and I advised him of all these things, and hes indicated that he understood and agreed with these things. [] So what that means, and it is important throughout the trial that you recognize this, that this is his right and you cannot use that against him nor use that for him. And I, as a trial judge, cannot help anyone, because that wouldnt be fair, right? Its not fair for me to help [the prosecutor], and its not fair for me to help Mr. Ilsung.

After asking whether any prospective juror could not serve or had concerns or sympathy because defendant chose to represent himself, the court made the following statement to the jury: And in self-representation, people may do a great job, they may not do a great job, and that is really not for your consideration. You simply look at the evidence as it is presented, and that is what you would use for your jury verdict.

Defendant contends the courts statement that it is generally not a wise choice to represent yourself in a criminal matter penalized him for electing to represent himself, a violation of Faretta. He is mistaken.

As a general rule, judicial misconduct claims are not preserved for appellate review if no objections thereto were made at trial. [Citation.] Nonetheless, a defendant's failure to object does not preclude review when an objection and an admonition could not cure the prejudice caused by such misconduct. (People v. Perkins (2003) 109 Cal.App.4th 1562, 1567.)

The court did not tell the jury to infer guilt from defendants decision to represent himself or disparage defendant for making that decision, but rather informed the jury that the court told defendant self-representation was usually a poor choice. This is not so prejudicial that it could not have been cured by an objection and admonition.

We also reject the claim on the merits. It is true, as defendant points out, that a court cannot tell the jury to draw an adverse inference from defendants decision to exercise a constitutional right. (Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d 106, 110] [cannot instruct the jury to infer guilt from defendants decision to not testify].) However, the court repeatedly told the jury not to consider defendants exercise of his Faretta right when considering the case.

Nor is this an example of impermissible hostility by the court to defendant or defense counsel. (People v. Fudge (1994) 7 Cal.4th 1075, 1107.) Rather than saying defendants decision was itself wrong, the courts comment was only that this type of choice tends to be a mistake. The court never expressed any hostility to defendant, and its other comments show a commendable effort to get the jury to focus on the evidence rather than defendants choice of counsel.

A courts instructions or other statements to the jury must be read in context. (People v. Ayers (2005) 125 Cal.App.4th 988, 997.) Taken together, these comments instruct the jury to decide the case based on the merits and not to be influenced by defendants decision to represent himself. We presume the jury followed these instructions in their entirety. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Viewed in their proper context, the courts comments do not violate Faretta.

II

Defendant contends the court never allowed him to question the jury on voir dire. His claim is not supported by the record.

In accordance with Code of Civil Procedure section 223, the court conducted the initial voir dire of the two groups of prospective jurors. Each time the court concluded questioning, it asked defendant and the prosecutor if either of them had any questions for the prospective jurors. Defendant expressly declined to ask questions both times. We accordingly reject defendants contention.

III

The court imposed the following sentence at the first trial: life with the possibility of parole within seven years, doubled to 14 years under the three strikes law, plus a consecutive middle term of four years for the section 12022.7, subdivision (e) enhancement, a consecutive one-year term for the section 12022, subdivision (b)(1) enhancement, and a consecutive five-year term for the section 667, subdivision (a) enhancement, for a total term of 24 years to life, along with a $8,000 restitution fine ( 1202.4) and a stayed $8,000 parole revocation fine ( 1202.45). After defendant was convicted of the same principal crimes on retrial, the court imposed the same sentence with two exceptions: it imposed an upper term of five years for the section 12022.7, subdivision (e) enhancement, resulting in a total term of 25 years to life, and the court also imposed a $10,000 restitution fine and stayed a $10,000 parole revocation fine.

Both parties contend the increased sentence and fines violate the prohibition against double jeopardy. We agree.

[A]fter successful appeal of a conviction a defendant may not upon reconviction be subjected to an aggregate sentence greater than that imposed at the first trial. (People v. Craig (1998) 66 Cal.App.4th 1444, 1448.) This rule applies to the imposition of restitution fines as well. (People v. Hanson (2000) 23 Cal.4th 355, 362-363.)

The increased fines and enhancement violate double jeopardy and we shall modify the sentence to return them to the terms imposed after the first trial -- a four-year middle term for the section 12022.7, subdivision (e) enhancement and $8,000 restitution and stayed parole revocation fines.

IV

Defendants final contention is the court denied him his due process right to contest the restitution claimed by his victim. We disagree.

After the first trial, the victim said she incurred a $70 co-pay for medical expenses and missed six weeks of work, causing her to lose $2,000 in earnings. The victim relied on this statement after the second trial, and the court ordered $2,070 in victim restitution.

After pronouncing sentence, the court asked defendant if he had anything to say. Defendant replied: Yeah. I dont think I should have to pay any restitution, your Honor, because I was robbed of $4700 in cash and everything in the apartment was mine. The court told defendant he had viciously attacked and attempted to kill his former girlfriend, and the court disagree[d] wholeheartedly with his contention that he should not pay restitution.

Penal Code section 1202.4, subdivision (f) authorizes restitution directly to a victim for economic losses incurred as a result of the crime. However, [t]he defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. ( 1202.4, subd. (f)(1).) Due process is satisfied if [defendant] is given notice of the amount sought and a hearing to contest that amount. (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.)

Defendant does not claim he was not notified of the amount of restitution sought; he only contends the court should have given him a more meaningful opportunity to contest the amount of restitution. He notes the trial evidence shows Zickefoose found $4,700 in the apartment after the attack. He argues this amount, plus other property of his never returned by Zickefoose, should be used to offset the restitution award.

The cash taken from the apartment was addressed in a pretrial motion, where the prosecutor asserted in open court and in defendants presence, that the victims father changed the locks on the apartment after defendant made bail within 24 hours of his arrest. The victims parents incurred various expenses to help her recover from the crime -- towing and rekeying her car and replenishing the security deposit after the blood stained carpet was replaced -- and Zickefoose used the cash in the apartment to reimburse them.

We presume the court remembered the pretrial colloquy when it rejected defendants claim. The court could reasonably conclude that any cash left by defendant in the apartment was used to defer other expenses incurred by Zickefoose and her family rather than as restitution for her uncompensated medical expenses and lost earnings. While defendant might have presented a more compelling claim to the court, he did not, and the court was not required to expand the inquiry to make up for defendants deficiencies as counsel. The court gave defendant an adequate opportunity to contest the restitution award, and its rejection of defendants contention was reasonable.

DISPOSITION

The judgment is modified to reduce the domestic violence enhancement ( 12022.7, subd. (e)) from the five-year upper term to the four-year middle term, resulting in a total sentence of 24 years to life, and to reduce the restitution fine ( 1202.4) and the stayed parole revocation fine ( 1202.45) from $10,000 to $8,000. As modified, the judgment is affirmed. The court is directed to amend the abstract accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

BLEASE , Acting P. J.

We concur:

SIMS , J.

BUTZ , J.

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