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People v. Son11/29/2004
Defendant Kevin Lee Son pleaded guilty to felony driving under the influence in violation of Vehicle Code section 23152, subdivision (a), and admitted three prior convictions of driving with a blood alcohol level of .08 percent or more in violation of Vehicle Code section 23152, subdivision (b), in exchange for the dismissal of a charge of violating Vehicle Code section 23152, subdivision (b), with three prior convictions and a charge of driving on a suspended or revoked license in violation of Vehicle Code section 14601.2 with three prior convictions. Defendant was denied probation and sentenced to the upper term of three years in state prison.
Defendant claims on appeal the trial court abused its discretion in sentencing him to the upper term without considering as mitigating factors his work history, his sincere desire to change his drinking habits, and his early admission of wrongdoing. We affirm the judgment.
FACTS AND PROCEEDINGS
On August 31, 2003, defendant was pulled over by the California Highway Patrol for speeding. He was intoxicated and failed the field sobriety tests. His blood alcohol level was .19 percent.
A complaint was filed against defendant on September 2, 2003. Defendant entered his plea of guilty on November 4, 2003. The matter was referred to probation for a presentence report.
The probation officer reported defendant had a number of prior adult convictions.
In 1984, defendant was convicted of felony battery with serious bodily injury. (Pen.Code, § 243, subd. (d).) According to defendant, he became intoxicated while he was out of jail on bail after having been arrested for driving under the influence. When his stepfather took the battery out of his car to prevent him from driving, defendant argued with his stepfather and then hit him in the face with a socket wrench. For that, defendant spent a year in jail.
In May 1997, defendant was convicted of misdemeanor battery of his girlfriend. (Pen.Code, § 243, subd. (e).) Defendant said he had an argument with his girlfriend and stomped on her foot. His probation was terminated when he failed to finish domestic violence classes.
In July 1997, defendant was again convicted of misdemeanor battery of his girlfriend (Pen.Code, § 243, subd. (e)), as well as misdemeanor cruelty to a child (Pen.Code, § 273a, subd. (b)), and misdemeanor resisting or obstructing an officer (Pen.Code, § 148, subd. (a)). Defendant told the probation officer those convictions arose out of an incident when he was drunk and his girlfriend was angry. His girlfriend attacked him and he put his arm out. She "clothes lined herself." When she left to get the police, defendant passed out. A child left in his care crawled into the bathroom and shut the door, trapping the child inside. Defendant claimed that upon arrival, the police officers pepper sprayed him and claimed he resisted arrest.
Defendant also had three DUI convictions, one in 1997 and two in 2001. Defendant told the probation officer that he had many more DUI's that were not listed on his rap sheet or record with the Department of Motor Vehicles. He estimated that he had about 14 prior convictions. His driver's license was revoked in 1987, in 1991, and again in 2003.
*2 According to defendant, he started drinking and smoking marijuana in high school. He began drinking regularly while he was in the army. Since 1987 he has drunk a 12-pack of beer every day. He also drinks hard alcohol. Defendant admits he is an alcoholic. He told the probation officer that he wants to stop drinking and is finally ready to address his alcohol problem. He admitted his previous attempts to quit drinking were not successful. He never went into a residential treatment program because he was not ready, but defendant claimed he had finally "hit bottom"
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