Filed 8/5/14 P. v. Randolph CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048628

         v.                                                            (Super. Ct. No. 06HF0575)

GRANT LEWIS RANDOLPH,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                   Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
                   Although appellant seriously injured his wife by throwing her off their
second-story balcony, he contends the trial court abused its discretion in denying his
request for probation and sentencing him to prison. We could hardly disagree more.
Finding ample justification for the trial court’s sentencing decision, we affirm the
judgment.
                                          FACTS
              Appellant met his wife Jiraporn in Thailand in 1998. Their son was born
the following year, and in 2003, they moved to Orange County. The family was living at
an apartment complex in Laguna Hills when this case arose in 2006.
              By all accounts, appellant and Jiraporn had an argumentative relationship.
As was often the case, neighbors heard yelling coming from their apartment on the night
of March 23, 2006. At one point, appellant shouted, “That’s it, bitch. It’s over.” He
walked out onto their second-story balcony, where Jiraporn was standing, and wrapped
his arms around her, “bear hug” style. Then in one swift motion, he flipped her over the
edge of the balcony. Although Jiraporn hit the ground hard, appellant showed little
concern for her. When a neighbor asked him what he had done to Jiraporn, he replied,
“Don’t worry. We argue all the time.”
              But there was plenty of cause for concern. Jiraporn’s contorted body lay
twitching on the ground, with blood coming out of both her ears. Neighbors were
tending to her by the time appellant came down to the scene with their son. Appellant
tried to assure everyone that Jiraporn was fine, but knowing otherwise, they had already
called 911.
              When the police arrived, appellant claimed he pushed Jiraporn while they
were arguing and she fell over the balcony. He was arrested and taken to the police
station, where testing revealed his blood-alcohol level was .13 percent. Jiraporn was
transported to the hospital and diagnosed with a fractured skull and severe traumatic
brain injury. Following cranial surgery, she spent a month in the hospital undergoing
physical, occupational and speech therapy.



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              At the time of the incident, appellant was 60 years old. He had never been
in trouble with the law before but now found himself facing serious charges. When
questioned by investigators, he initially claimed Jiraporn fell off the balcony by herself,
while leaning back in a chair. Then he claimed she “inadvertently” fell over the edge
while he was shaking her. While admitting he and Jiraporn had a tumultuous
relationship, he claimed nothing of this sort had ever happened before. However,
according to Jiraporn, appellant once held her over their balcony by her ankles before
pulling her back inside.
              It took seven years for the case to get to trial. During that time, appellant
was free on bail and completed a domestic violence program. He also participated in
individual and family counseling and reconciled with Jiraporn. They were reunited with
their son in 2008, after successfully completing a family reunification plan that was
administered by social services.
              Appellant was tried for attempted premeditated murder and domestic
battery with corporal injury. It was also alleged he inflicted great bodily injury during the
offenses. At the end of the prosecution’s case-in-chief, the court granted appellant’s
motion to dismiss the premeditation allegation for insufficient evidence, and, as it turned
out, the jury was unable to reach a verdict on the underlying charge of attempted murder.
However, it did convict on the battery count and find the great bodily injury allegation to
be true. As explained more fully below, the court turned down appellant’s request for
probation and sentenced him to seven years in prison.
                                        DISCUSSION
              Appellant contends the trial court abused its discretion in denying his
request for probation, but that is clearly not the case.
              In light of the jury’s true finding on the great bodily injury allegation,
appellant was presumptively ineligible for probation. (Pen. Code, § 1203, subd. (e)(3).)
However, in speaking with the probation officer before sentencing, appellant claimed

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granting him probation would be in everyone’s best interest because he had reconciled
with Jiraporn and was an integral part of their family. Not only was he the main bread-
winner, he was actively involved in raising their son, who was now a teenager. Appellant
also submitted several reference letters from family and friends, attesting to his peaceful
character.
              Nevertheless, the probation officer advised against probation and
recommended appellant be sentenced to prison, given the violent nature of his crime.
While recognizing appellant had undergone extensive counseling since the crime
occurred, the probation officer was concerned because Jiraporn was downplaying the
seriousness of the offense and she was heavily reliant on appellant for support, given her
limited English skills. It was the probation officer’s opinion that, “Even though
[appellant and Jiraporn] have reconciled, . . . her dependency upon him makes her even
more vulnerable to another assault, which could be potentially fatal.”
              At the sentencing hearing, defense counsel characterized appellant’s actions
in this case as “an absolute deviation from who he is and who he’s been throughout his
life.” Given that appellant had no prior record and was now almost 68 years old, defense
counsel urged the court to go easy on him. However, in light of the seriousness of
Jiraporn’s injuries, the prosecutor asked for the maximum term of nine years.
              In rendering its decision, the court was struck with the violent nature of the
crime and the fact Jiraporn was much smaller than appellant. The court did not believe
appellant’s claim to police that the incident was an accident, nor did it place much stock
in his reference letters. The court did sense appellant was remorseful and committed to
his son, but in the end, it felt appellant was still “an angry person” who had “a volatile
nature” and was a “serious danger to society.” Despite appellant’s favorable qualities,
the court found that “even with a structured anger management program, . . . there would
not be a likelihood [appellant] would succeed upon a grant of probation nor [are there]



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any unusual circumstances that would warrant a grant of probation.” Therefore, in lieu of
that option, the court sentenced appellant to the midterm of seven years in prison.
              When, as here, a defendant is presumptively ineligible for probation,
probation may not be granted except in the “unusual” case where it would serve the
interests of justice. (Pen. Code, § 1203, subd. (e).) This exception is to be “narrowly
construed and . . . limited to those matters in which the crime is . . . atypical or the
offender’s moral blameworthiness is reduced.” (People v. Superior Court (Dorsey)
(1996) 50 Cal.App.4th 1216, 1229.)
              California rule of Court 4.413(c) sets forth the circumstances that “may
indicate the existence of an unusual case in which probation may be granted if otherwise
appropriate.”1 Under that rule, the court may find the presumption against probation
overcome if the facts are substantially less serious than in other cases involving the same
probation limitation, the offense was committed under provocation, coercion or duress,
the defendant has a mental health issue, or the defendant is “youthful or aged, and has no
significant record of prior criminal offenses.” (Ibid.) Even if the court does find the
presumption overcome, it may still deny probation if other factors, such as the
seriousness of the crime and the vulnerability of the victim, do not favor the defendant.
(People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 829-831 [discussing Rule
4.414.) A court’s decision denying probation will not be set aside on appeal unless it
constitutes a clear abuse of discretion, meaning it is arbitrary, capricious or exceeds the
bounds of reason. (Id. at p. 831.)
              In this case, the trial court’s decision to deny appellant probation was
manifestly reasonable. Appellant argues his “advanced age, his counseling and mental
health efforts while out on bail, and his spotless record both before and after the
commission of the crime underlying this action permeate each and every one of the


       1
              All further rule references are to the California Rules of Court.


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factors within Rule 4.413.” Assessing those factors, it is true that appellant was nearly 68
years old at the time of sentencing, and prior to this case, he had never been convicted of
a crime. But, as reflected in the probation officer’s presentence report, Jiraporn did
reveal that appellant had dangled her from their balcony by her ankles on a previous
occasion.
              Moreover, it does not appear that the gravity of the present offense was
substantially less serious than other cases involving great bodily injury, the offense was
committed under provocation, coercion or duress, or appellant has any mental health
issues. To the contrary, appellant attacked and grievously injured his defenseless wife
out of sheer anger. Not only did he cause Jiraporn to incur a severe brain injury which
necessitated months of hospitalization, he no doubt inflicted considerable emotional
distress on her in the process. One can only imagine the horrible fear Jiraporn must have
felt when appellant picked her up and flipped her over their balcony. To make matters
worse, their young son was in the vicinity at the time of the incident. It’s unclear from
the record whether he saw what his father did, but he was exposed to the aftermath, when
his poor mother lay injured on the ground. And to top it off, appellant was utterly
unapologetic at the scene. It is clear he was much more concerned about himself than his
wife in her time of need. In fact, when appellant was interviewed by the police at the
scene, he did not even ask them how Jiraporn was doing.
              On this record, it is readily apparent the trial court did not abuse its
discretion in finding the presumption against probation was not overcome. Indeed,
appellant concedes the facts related to the crime are not in his favor. While he questions
the trial court’s finding that he would be unlikely to succeed on probation, this is one of
those cases where the facts speak largely for themselves. The nature and gravity of the
offense, coupled with appellant’s callous reaction to the crime, were so egregious that the
trial court could reasonably find appellant remains a danger to society, despite his
rehabilitative efforts and his relatively advanced age. While appellant was able to control

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himself while he had charges hanging over his head, there is no guarantee he could
perform well without that moderating influence. We therefore uphold the court’s
sentencing order. There is no reason to disturb its decision to deny appellant probation
and sentence him to prison.
                                     DISPOSITION
              The judgment is affirmed.



                                                 BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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